W. Mason – Fox Rothschild LLP – March 8, 2014
Under Florida law, no lien of any kind can be recorded against a condominium property as a whole without the unanimous consent of the unit owners. Of course, in order to earn this protection, the condominium property must have recorded a valid declaration of condominium. Once a declaration is recorded, construction liens may arise or be created against individual unit owners absent consent from every unit owner. Fla. Stat. § 718.001 et seq.
Florida’s Condominium Act specifically states that labor on or materials furnished to a unit shall not be the basis for the filing of a construction lien against a unit or condominium parcel unless the unit owner specifically consented to or requested the labor or materials. However, labor performed on or materials provided to the common elements can be the subject of a construction lien if authorized by the condominium association. In this sense, association authorization is deemed to be equivalent to the express consent of each and every unit owner in the condominium association. See Fla. Stat. § 718.121(1).
If a lien against two or more condominium parcels becomes effective, each owner may relieve his or her condominium parcel of the lien by exercising any of the rights of a property owner under Chapter 713 or by payment of the proportionate amount attributable to his or her condominium unit. After receiving the proportionate payment, the lienor is required to release the lien of record against that individual condominium parcel. See Fla. Stat. § 718.121(2).
In enforcing a construction lien against an entire condominium property, the provider of materials or labor can join the unit owners as a class via the condominium association. However, it is more effective and more equitable to lien each unit owner for its pro rata share of the work performed based upon each unit owner’s pro rata interest in the condominium. See Southern Colonial Mortgage v. Medeiros, 347 So. 2d 736 (Fla. 4th DCA 1977). For example, where general contractor is claiming a lien for concrete repairs to the common elements of a condominium building, the general contractor should claim a lien not against the condominium property as a whole, but rather upon all the individual units contained in the condominium building where the work was performed. See e.g. Royal Ambassador Condominium Association v. East Coast Supply Corp., 495 So. 2d 932 (Fla. 4th DCA 1986).
In South Florida Coastal Electric, Inc. v. Treasures on the Bay II Condo Association, Inc., 89 So. 3d 264 (Fla. 3d DCA 2012), an electrical contractor performed electrical work at a condominium and obtained judgment against the condominium developer for payments of its invoices. The contractor also brought an action against the condominium association seeking payment of the invoices.
Ultimately, the Third Circuit Court of Appeal decided that a summary judgment in favor of the association was error. The court specifically found that because the invoices from the contractor were issued to the association, rather than the developer, summary judgment in favor of the association would be inappropriate. Moreover, the Court found that the evidence was not clear as to whether the association did or did not authorize the work pursuant Fla. Stat. § 718.121 discussed above. As such, the Third District Court of Appeal sent the case back to the trial court for a factual determination of those issues.
In sum, the Florida’s Condominium Act attempts to limit the situations in which a lien can arise in the context of condominium associations and parcels for work performed on common elements. However, providers of labor or materials still have an arsenal of tools to enforce liens for work on common elements should the need arise.
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