Q: I own a painting company. I recently filed a lien against a condominium association that hired me to paint the outside of the condominium building. The President tells me that my lien is no good because it had to list all of the owners. Is that right?
A: There has been a lot of confusion surrounding liens involving work on common elements of condominiums. Until 1980, the mechanics lien statute allowed filing a single claim of lien for more than one improvement to be operated as separate units, such as, but not limited to, a housing or multi unit dwelling project. This was interpreted to allow filing of a lien against an entire condominium property for work on any part of the property.
In 1980, the statute was amended and as part of the amendment a claim of lien could only be filed when the owner under the direct contract was the same person for lots, parcels or tracts of land against which a single claim of lien was recorded. That was interpreted by some Courts to prohibit filing a lien against an entire condominium after the declaration of condominium was recorded, as the declaration created different ownership interests for each unit and a percentage ownership interest in what are known as common elements.
In 1986, the Fourth District Court of Appeal addressed this issue in the case of Royal Master Condominium Association v. East Coast Supply Corp. In that case, the Court found it would be improper to lien an entire condominium property, even for repairs made to common elements.
In that case, a condominium association hired a contractor to replace the roof. A lien was filed against the legal description for the entire condominium building and the roofer sued to foreclosure its claim of lien.
The Court reviewed the mechanics lien law and the Condominium Act, particularly Section 121 of the Condominium Act. It noted that Section 121 of the Act read (and still reads) in part “No liens of any nature are valid against the condominium property as a whole except with the unanimous consent of the unit owners.” The Court held that a contractor could not file a lien against a condominium property as a whole, but could file a lien upon all of the individual units contained in the condominium building in the proportion for which each unit is liable for common expenses. Ideally, the Court explained, the lien should describe each unit and its respective percentage share of common expenses. It reversed a final judgment in foreclosing a lien on the entire property.
That case was troubling for contractors, many of whom attempted to prepare liens without legal advice. It was even problematic for attorneys, who did not understand its import. Liens were still filed against a condominium as a whole, without reference to units.
In 1997, the Second District Court of Appeal allowed foreclosure of a lien where the contractor filed a lien against the association and all unit owners even though the contractor only sued the association as class representative for the owners. That Court found the class representative status sufficient for foreclosure.
It was not until this year that any of Florida’s Appellate Courts was willing to allow foreclosure of a lien filed solely against a condominium association.
The most recent decision is Trintec Construction, Inc. v. Countryside Village Condominium Association. In that case, the court offered a detailed analysis of the Condominium Act and Mechanics Lien law in allowing a lien against a condominium property as a whole.
As for the requirements of the Condominium Act that all owners give consent for imposition of any lien against the condominium property as a whole, the Court found that the association represents all of the unit owners. The association is granted class representative status for the unit owners under Florida’s Court Rules of Civil Procedure. If the association hired a contractor to work on the common elements, it acted as the representative of all unit owners and thereby granted consent on behalf of all unit owners.
The Court also found this consistent with other subsections of Section 121 of the Condominium Act. Subsection (2) of that statute provides that where labor or materials are furnished to common elements, it is not the base for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner. Subsection (3) confirms that if a valid lien encumbers multiple condominium parcels, each owner of an encumbered parcel may exercise the rights of a property owner under the mechanics lien law to pay its proportioned amount of the lien and obtain a release. The Court found the Condominium Act allows a lien against the entire property.
The Court then examined the mechanics lien law requirement that a recorded lien state description of the property sufficient for identification and the name of the owner. It found the condominium association had ownership interest in the common elements and that a lien naming the association as owner would be sufficient under the mechanics lien law. Since the association is deemed the class representative of the owners, it was not necessary to join individual unit owners for a valid lien.
You should be cautioned that Florida’s Supreme Court has not yet addressed this issue. The Trintec case is the only appellate case allowing a lien solely against a condominium association to be foreclosed. If the time for filing or amending your lien has not expired, you would be well advised to amend the lien to meet the stricter requirements of the Royal Master Condominiumcase by naming both the association and the units in proportioned to their ownership interest. If the time has expired for such filing, you may have no choice but to hope that the Court in your case will agree with the logic and holdings in the
In any event, your case is complex and timing is critical. I suggest you discuss the exact facts and circumstances of your situation with an experienced attorney as soon as possible.