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Public property and lien rights

August 19, 2016

THEY OFTEN DON’T EXIST. BUT THERE’S AN EXCEPTION.

If you’re working on public property in Florida, you usually have no lien rights. As a substitute to lien rights a payment bond may be available. However, sometimes there are still rights where one thought there might be none. If the work on the public property is a result of the orders of a private owner who is improving the neighboring property your lien rights could be safeguarded on that neighboring Fort Lauderdale property.

Often, before allowing a property owner to make subdivision improvements, the public authority may require that the owner make certain improvements to the underground utilities in the area or possibly to the street itself as well as other examples of improvements to the public property. The public body wants to make sure that it is following a reasonable land use plan and that there is enough water and sewer for the residents in the area or they may want to make sure that the streets are properly designed for the amount of traffic they will carry. As such, if one is working on the street, either making improvements to the street or working on water and sewer beneath the street, he may have lien rights on the abutting land.

Florida Statute 713.04, Subdivision Improvements, specifically notes that “when the services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a construction lien upon the abutting land.” What this means in plain language is if the construction going on is the result of the orders of the property owner neighboring where the construction is taking place, that private property owner’s real estate may be subject to construction liens, and your construction lawyer has a good chance of securing payment on your behalf. The key to this section of law is that the improvements which are being constructed actually touch the land sought to be liened in Fort Lauderdale.

If the improvements do not actually touch the land sought to be liened, there are no lien rights. In Davis Water & Waste Industries, Inc. v. Embry Development Corp., 603 So.2d 1357 (Fla. 1st DCA 1992), the Court held that the lienor had no lien rights on the owner’s property. In this case, the lienor was required to make certain improvements to a public sewer and water system, specifically, to increase the water pressure to certain fire hydrants within the subdivision. In that case the public property wherein the services and materials were furnished was separated from the owner’s land by intervening property. The public property in question did not touch or border or otherwise reach out or abut the landowner’s property. The Court found that the Statute clearly requires that the public land upon which the improvements are constructed actually touch the land sought to be liened. It went on to note that the lien statute must be strictly construed, Davis at 1359. This requirement that the public property actually touch the landowner’s property may be a rigid restraint on lien rights because the work might qualify in all other respects except for the fact that it does not actually touch the private owner’s property. However, at least there are lien rights in those cases where the public works improvements do touch the private owner’s property.

In conclusion, when it comes to construction liens in Fort Lauderdale, have your lawyer examine all the circumstances. This blog might be better entitled “Lien Rights From Heaven, a/k/a Gifts From Below” since this section of mechanic’s lien laws often deals with underground work. When in doubt of lien rights, follow this simple rule: Don’t automatically assume that you have them! Always check with a knowledgeable attorney to ensure that your best interests are protected.