Not Everyone Can Do It: Preparing and Signing a Claim of Lien
The preparation of a construction claim of lien appears to be such a routine task that many take for granted the importance of who is actually authorized by statute to do so. But not knowing who is legally allowed to prepare and sign the claim and not truly understanding the process can open one up to certain liability and even invalidate the claim of lien.
Specifically, a claim for a construction lien in Florida can only be prepared by the lienor or an attorney licensed to practice law in the state, and that claim of lien can only be signed by the lienor or its authorized agent. The preparation of a claim of lien for others, in the state of Florida, is considered the practice of law. If any other party prepares the claim of lien other than the lienor or its attorney, then that party will, in Florida, be found to be engaging in the unauthorized practice of law. Moreover, and potentially devastating, is that such a practice could cause the claim of lien to run afoul of the fraudulent lien laws and completely invalidate its effectiveness. As well, utilizing parties unfamiliar with the lien process or the specifics of a lien claim could lead to mistakes. For example, not listing the correct names of all parties in interest or the correct legal description of the property being liened could be as problematic as not having proper start and end dates for the lienor’s services, or worse having dates that fall outside the time frame requirements imposed by the applicable statute.
Validating your lien through the proper and timely insertion of all needed information is the first step. Seeing that the claim of lien is prepared and signed by a party authorized to do so will then ensure that it remains enforceable and allow you to secure payment for those unpaid services or materials.
The Florida legislature recognized the chilling effect of statutory limitations on who could prepare and sign a claim of lien. Particularly problematic was the situation where the lienor was not an individual person, but rather, a corporation or limited liability company. Many, if not most lienors organize corporations or limited liability companies to protect the individual contractor from liability that could result from construction. Under the wording of the applicable statute previously in place, if a corporation was wholly owned by a single individual, that individual would be unable to prepare or sign a claim of lien on behalf of the corporation. This was not the intended effect of the statute. The statute has since been amended to read that a “claim of lien may be prepared by the lienor or the lienor’s employee or attorney and shall be signed and sworn to or affirmed by the lienor or the lienor’s agent acquainted with the facts stated therein.” This revision to Florida statutes mitigates many of the hazards previously associated with preparing and signing claims of lien in-house.