Construction Liens – Extent of Liens
What interests are affected by a recorded claim of lien? With one exception, a lien only extends to the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. (Florida Statutes Section 713.10.) The only exception to this rule is as follows: when the contract for improving real property is made with a husband or wife who is not separated and living apart from his or her spouse and the property is owned by the other or by both, the spouse who contracts shall be deemed to be the agent of the other spouse to the extent of subjecting the right, title, or interest of the other in said property to liens under this part. However, the other spouse can exempt his or her interest from the lien by giving the contractor written notice of his or her objection to the contract and recording it in the county clerk’s office within 10 days after learning of such contract.
Under Florida Statutes 713.10(1), when an improvement is made by a lessee in accordance with an agreement between the lessee and her or his lessor, the lien will extend also to the interest of the lessor.
Florida Statutes Section 713.10(2) states that when the lease expressly provides that the interest of the lessor shall not be subject to liens for improvements made by the lessee, the lessee shall notify the contractor making any such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between the lessee and the contractor voidable at the option of the contractor. The interest of the lessor is not subject to liens for improvements made by the lessee when:
1. The lease, or a short form or a memorandum of the lease that contains the specific language in the lease prohibiting such liability, is recorded in the official records of the county where the premises are located before the recording of a notice of commencement for improvements to the premises and the terms of the lease expressly prohibit such liability; or
2. The terms of the lease expressly prohibit such liability, and a notice advising that leases for the rental of premises on a parcel of land prohibit such liability has been recorded in the official records of the county in which the parcel of land is located before the recording of a notice of commencement for improvements to the premises, and the notice includes the following:
a. The name of the lessor.
b. The legal description of the parcel of land to which the notice applies.
c. The specific language contained in the various leases prohibiting such liability.
d. A statement that all or a majority of the leases entered into for premises on
the parcel of land expressly prohibit such liability.
3. The lessee is a mobile home owner who is leasing a mobile home lot in a mobile home park from the lessor.
A recorded lease “anti-lien” clause notice effectively prohibits liens for improvements made by a lessee even if other leases for premises on the parcel do not expressly prohibit liens or if provisions of each lease restricting the application of liens are not identical.
Under Section 713.10(3), any contractor or lienor under contract to furnish labor, services, or materials for improvements being made by a lessee may serve written demand on the lessor for a verified copy of the provision in the lease prohibiting liability for improvements made by the lessee. The demand for a verified copy of the lease provision must identify the lessee and the premises being improved and must be in a document that is separate from the notice to the owner. The interest of any lessor who does not serve a verified copy of the lease provision within 30 days after a demand therefor, or who serves a false or fraudulent copy, is subject to a lien under this part by the contractor or lienor who made the demand if the contractor or lienor has otherwise complied with the statute and did not have actual notice that the interest of the lessor was not subject to a lien for improvements made by the lessee. The written demand must include a warning in conspicuous type and in substantially the same form as is set forth in the statute. The warning basically advises the lessor that the failure to serve the requested verified copy within 30 days may result in the property being subject to the lien of the person requesting the verified copy.