Construction Liens – Priority of Liens
Not all liens are created equal. Florida Statutes Section 713.07 sets forth an order of priority for liens. Design professional liens and subdivision improvement liens (under Sections 713.03 and 713.04) attach at the time of recordation of the claim of lien and take priority as of that time. Liens of persons in privity and persons not in privity under Sections 713.05 and 713.06 attach and take priority as of the time of recordation of the notice of commencement, but in the event a notice of commencement is not filed, then those liens attach and take priority as of the time the claim of lien is recorded. These construction liens have priority over any conveyance, encumbrance or demand not recorded against the real property prior to the time such liens attached, but any conveyance, encumbrance or demand recorded prior to the time such liens attach and any proceeds thereof, regardless of when disbursed, have priority over these liens.
Pursuant to 713.07(4), if construction ceases or the direct contract is terminated before completion and the owner desires to recommence construction, he or she may pay all lienors in full or pro rata in accordance with Section 713.06(4) (discussed above) prior to recommencement, in which event all liens for the recommenced construction take priority from such recommencement. In the alternative, the owner may record an affidavit in the county clerk’s office stating his or her intention to recommence construction and that all lienors giving notice have been paid in full except those listed therein as not having been so paid in which event 30 days after such recording, the rights of any person acquiring any interest, lien, or encumbrance on said property or of any lienor on the recommenced construction shall be paramount to any lien on the prior construction unless such prior lienor records a claim of lien within the same 30-day period. A copy of this affidavit must be served on each lienor named in the affidavit. Before recommencing construction, the owner also must record and post a notice of commencement for the recommenced construction.