Construction Liens– Is the Work Actually An “Improvement?”

Construction liens are relatively commonplace in the construction industry. Liens provide, among other things, an effective mechanism for parties to recoup money allegedly owed to them. To record a claim of lien, a party must satisfy certain requirements set forth in Chapter 713, Florida Statutes. With the exception of professional services, one of these requirements is that the labor, services, or furnished materials constitute an “improvement” or part thereof. While sometimes not an issue, there are occasions where the meaning of “improvement” under Chapter 713, Florida Statutes, can have significant consequences as to the validity of a construction lien.

Fla. Stat. §713.02 sets forth categories for types of lienors and applicable exemptions. Subsection (1) applies to professional services, subsection (2) applies to subdivision improvements, subsection (3) deals with persons who are in privity with an owner, subsection (4) applies to persons who are not in privity with an owner, and subsection (5) deals with improvements where the contract price is $2,500.00 or less. This article addresses particular situations that fall under Fla. Stats. §§713.02 (3)-(5).

More specifically, Fla. Stats. §§713.02 (3)-(5) require the labor, services, or furnished materials to constitute an “improvement” to the real property at issue. Upon further examination, an “improvement” is defined under Fla. Stat. §713.01(15) as “any building structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part therof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit.” (emphasis added). Thus, to have a valid construction lien under Fla. Stats. §§713.02 (3)-(5), the services must constitute a permanent improvement. For most construction labor, services, or furnished materials this requirement is easily met. However, what about those services that may not constitute a permanent improvement to the real property at issue?

The answer to this question is fact specific. Florida case law is relatively sparse regarding this exact issue, but the existing opinions hold that cleaning and maintenance services do not constitute a permanent improvement upon an applicable property and thus said services are not lienable. Legault v. Suncoast Lawn Serv., Inc., 486 So. 2d 72, 73 (Fla. 4th DCA 1986) (“maintenance landscaping services do not bestow a permanent benefit upon the land, and do not entitle a laborer to a mechanic’s lien”); Levin v. Palm Coast Builders and Constr., Inc., 840 So. 2d 316, 317 (Fla. 4th DCA 2003) (holding items such as pool upkeep charges and lawn maintenance charges were not lienable “by any stretch of the imagination”).

The court in Victoria Grp. relied on a contract’s scope of work clause when analyzing whether the services were lienable under Florida law. Parc Cent. Aventura E. Condo. v. Victoria Grp. Servs., LLC, 54 So. 3d 532, 533 (Fla. 3d DCA 2011). The court, noting that case law is relatively sparse, held that cleaning, maintenance, and concierge services to common building areas are not lienable services under Chapter 713, Florida Statutes. Id. The court references an Illinois appellate court opinion, the only national opinion it found related to this specific issue, which held that the “cleaning of stairways, washroom grouting, and sealing of washroom walls,” were not lienable under that state’s mechanics’ lien law. See Lyons Sav. v. Gash Assocs., 665 N.E.2d 326, 331 (1996) (emphasis added).

Ultimately, the analysis as to whether the labor, services, or furnished materials constitute a permanent improvement and are thus lienable is a fact specific question. Florida courts seem to suggest that certain cleaning and maintenance services are not lienable under Chapter 713, Florida Statutes. There is no cut and dry standard however. Therefore, if presented with a construction lien or in preparation for filing one, make sure that the services provided constitute a permanent improvement to the real property at issue. If the services provided may be considered cleaning or maintenance, be mindful of how Florida courts may interpret construction liens based on these types of services when litigating your case.

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