Special Statutory Proceedings for the Discharge of Construction Liens

In Florida, special legal proceedings can be authorized by the Supreme Court as long as they don’t conflict with the rules of civil procedure. This includes the discharge of construction liens, which is typically handled through nonadversarial means outlined in the law. However, there can be some confusion about when to use the rules of procedure instead. In some cases, a party can file a complaint with the court to show why a construction lien should be canceled. If the lienor doesn’t respond or take action, the court can cancel the lien. In some recent court rulings, the courts have emphasized that they must strictly follow the rules and procedures set out by the law, rather than using their own discretion. This means that if someone doesn’t follow the specific rules for filing a claim of lien, they could lose their right to enforce the lien. In one case, a lienor tried to ask for more time to find a new attorney, but this wasn’t allowed because it didn’t meet the specific requirements of the law. It’s important to follow the rules exactly when dealing with claims of lien, or else you could lose your rights. In some court cases, there has been confusion about whether the regular rules of court procedure apply to construction lien discharge proceedings. In one case, the court said it was okay for the trial court to apply the rules, but in another case, the court said the rules couldn’t be used to set aside a discharge. The Third District court also said that the special rules for these proceedings must be strictly followed. In Florida, construction lienors must follow specific rules to protect their liens. The 20-day period to take action is not flexible, and the court must strictly apply these rules. When responding to the 20-day notice, the lienor can file a foreclosure action as a counterclaim to the owner’s complaint. The court will decide what qualifies as a good reason to keep a construction lien from being discharged. If a construction lien isn’t enforced within one year of being recorded, it expires and the contractor can’t take legal action to collect the debt. This rule is meant to resolve lien claims quickly. Even if the lien is transferred to a bond, the one-year time limit still applies. In Florida, there’s a law that says construction companies have one year to take legal action to collect money they’re owed. The courts have allowed some flexibility with this deadline, but generally, if the construction company doesn’t act within a year, they lose their right to collect. The law also lets property owners speed up this process by sending a special notice to the construction company. The notice of contest of lien can shorten the time to file a claim against a payment bond or transfer bond. Court cases have addressed questions about how to calculate the time period for responding to a notice of contest of lien, and whether general rules of procedure apply in these specific situations. In one case, the court ruled that a rule of procedure could be used to calculate the time period for enforcing a construction lien, allowing for a timely filing in a situation where the deadline fell on a Sunday. The rules for civil procedure and special statutory proceedings can be confusing. It’s best to follow the specific time limits and procedures set out in the statutes, to avoid risking your client’s construction lien being discharged. Howard J. Hollander is an experienced lawyer in construction litigation, and he recommends staying within the time limits to test the merits of the lien on a substantive basis.

Source: https://www.floridabar.org/the-florida-bar-journal/special-statutory-proceedings-for-the-discharge-of-construction-liens/