• Construction Liens and Defects: What You Don't Know Might Hurt You
  • March 31, 2010 | Author: Scott P. Swope
  • Law Firm: Swope & Bright, P.L. - Clearwater Office
  • When you have a contractor do work at your home or office, you expose your property to potential construction liens by the contractor as well as suppliers and subcontractors.  The fact that the property is your homestead will not protect you.  Construction liens are considered “consensual” and therefore supersede the homestead status, similar to mortgage liens.  Once recorded in the public records, a construction lien will “cloud” the title to your property, preventing you from selling, transferring, or refinancing the property.  Fortunately, Florida law provides a remedy for property owners who don’t want to risk foreclosure by a lienor or who want to sell, transfer, or refinance their property without compromising their right to fight the construction lien.  You can deposit money with the clerk of court or post a surety bond.  Determining the exact amount of money or the bond amount that is required is moderately complicated, but it will certainly exceed the amount of the lien by at least 25%.

    When you have a contractor do work at your home or office, Florida law requires you to participate in a pre-suit dispute resolution process if you want to assert a claim arising from a construction defect. A construction defect is defined very broadly to include any deficiency arising out of the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from the use of defective materials or components, a violation of applicable building codes, failure of a design to meet applicable professional standards, or poor construction that fails to meet accepted trade standards.

    Before filing a lawsuit (or asserting a counterclaim in a construction lien lawsuit), a property owner must provide a notice of claim to the contractor, supplier, subcontractor, architect, etc. responsible for the defect.  The notice of claim must describe the defects in reasonable detail sufficient to allow the responsible party to determine the general nature of each alleged defect and a description of the damage or loss resulting from the defect.  If the contractor wants to inspect your property, you must allow it.  There are lots of rules regarding the kinds of testing that can be done and how long the contractor has to do it.  The contractor is supposed to provide you with a written response stating whether they dispute the claim, they will repair the defect, they will pay you money damages, or they propose some combination of those things.  You don’t have to accept the contractor’s settlement offer, but you might have to provide the contractor with documents, photographs, and other things if requested.

    The foregoing article only touches upon the myriad regulations governing construction liens and construction defect claims.  Whether your property has been liened by a contractor or you are interested in pursuing a claim against someone involved in a construction or renovation project at your home or office, we can help you maneuver through the complicated maze of regulations applicable to the construction industry.