Can I lien homestead property? (and other lien questions answered)
By Alex Barthet
Work as a Florida construction lawyer long enough and you’ll see the same lien questions come up over and over again. Do you need a written contract to have lien rights? How long do I have to record my lien? How do I account for weekends and holidays? What is “last work” under the lien law? What happens after I lien? And can I lien homestead property?
Can I lien homestead property?
The short answer is yes. A contractor can lien and foreclose on homestead property that it improves. Understand that the homestead law in Florida does provide very strong protection to people’s primary homestead. Most times, creditors are unable to touch someone’s homestead property if it is properly registered as their homestead property and falls within the guideline of the homestead law. However, there are two major exceptions to this rule. One is if there is a mortgage on the property. Obviously, if there is a mortgage on homestead property and the mortgage is not paid, then the bank can foreclose on the property. The other is if you improve someone’s homestead property, and comply with the lien laws, rules and timeline for notices, then you can foreclose on that homestead property and sell it.
Do you need a written contract to have lien rights?
The answer is no, but it’s nice to have. We strongly recommend that any agreement be in writing. But it is not required in order to have lien rights. Oral contracts are valid, enforceable and lienable. You must of course comply with all of the lien law rules and notice requirements whether your contract is in writing or not. We advise our clients to get their agreements in writing. One reason is because some residential construction disclosure requirements require certain things in your contract to be in writing. One significant example is Florida Statute 713.015. You may not need a written agreement, but you should have one.
What about my invoice, proposal, and estimate, are they a contract? The answer is yes, all of those types of documents, no matter what you call them, are either a written contract (because what you have the other person sign it) or evidence of the terms of an oral agreement (because it may not be signed). We recommend that you have a series of terms and conditions in your estimates and proposals, and also have a process in your offices