Florida Construction Liens: Property Subject To A Construction Lien

As a threshold matter, it is often important to determine whether Florida law permits a construction lien to be placed on a particular property. In order for Florida lien law to be applicable to a property, there must be a contract between a person performing services and/or providing materials and a nongovernmental owner of property before the Florida construction lien laws apply. A construction lien cannot encumber governmental property. However, the statute leaves open the possibility that a construction lien could encumber leaseholds within governmental property; i.e. a vendor's property in an airport or bus terminal.

While the cleanest construction liens will be based on an express written agreement, a construction lien can be based on a contract-implied-in-fact under Florida law. This is because a contract-implied-in-fact is an enforceable contract "that is inferred in whole or in part from the parties' conduct, not solely from their words." Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997). The Supreme Court of the United States defined a contract-implied-in-fact as "an agreement 'implied in fact'" as "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding. Baltimore & Ohio R. Co. v. United States, 261 U.S. 592 (1923)

A construction lien in Florida cannot be based on a contract-implied-in-law because a contract-implied-in-law does not require an agreement. CDS & Associates of Palm Beaches, Inc. v. 1711 Donna Rd. Associates, Inc., 743 So. 2d 1223, 1224 (Fla. Dist. Ct. App. 1999). Rather, a contract-implied-in-law, such as a claim pursuant to a theory of quantum meruit, is "an obligation created by the law without regard to the parties' expression of assent by their words or conduct." Id.

Florida Statute defines "improve" to mean to build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish...