United States: Florida Construction Liens: Improvements That Create An Enforceable Construction Lien

Previously in this series, I discussed the property that could be the subject of a construction lien. In this part, we take a look at the definition of improvement and the "permanent benefit" requirement.

The Florida Construction Lien Law defines an "improvement" as "any building, structure, construction, demolition, excavation, landscaping, or any part thereof existing, built, erected, placed, made or done on land or other real property for its permanent benefit." Fla. Stat. § 713.01(15)(emphasis added). Florida courts have been clear that items that are not permanent do not create enforceable construction liens. However, "permanent benefit" does not mean that the land must be made more valuable because of the addition. Rather, any permanent addition to the real property is considered an improvement. See E & E Elec. Co. v. Gold Coast 72nd St. Diner, Inc., 116 So. 2d 660 (Fla. 3d DCA 1959).

I.  Permanency

To illustrate, courts have held that residential cleaning, maintenance, and concierge services provided on behalf of condominium association did not constitute improvements to real property, and thus, were not lienable in a collection action by cleaning service. See Parc Cent Aventura East Condominium v. Victoria Group Services, LLC, 54 So.3d 532 (Fla. 3d DCA 2011). Further, a lien filed by construction company was found to be fraudulent because it included nonlienable items such as pool upkeep charges, lawn maintenance charges, homeowner's association fees and utility charges. See Levin v. Palm Coast Builders and Const, Inc., 840 So.2d 316 (Fla. 4th DCA 2003). Moreover, a potential lienor was not entitled to construction lien on a shopping mall property for the assembly of a kiosk where trial court found that such structure was not of permanent benefit to the mall and hard-wiring into electrical outlet available at site did not make kiosk a 'permanent improvement.' Palm Beach Mall, Inc. v. Southeast Millwork, Inc., 593 So.2d 1121 (Fla. 4th DCA 1992). Finally, one court has held that wall-to-wall carpeting placed in apartment building was an improvement, and, therefore, supplier of such carpeting had no lien upon the real property where it was installed. See Fell v. Messeroff, 145 So.2d 238 (Fla. 3d DCA 1962).

II.  Benefit

While it may appear from the definition that an "improvement" should increase the value of the property to the owner, Florida courts have decided that it is not their duty to weight the relative advantage of structures erected on land in determining whether a lien is enforceable. Rather, where there is a permanent addition to real property, a construction lien may be enforceable. See E & E Elec. Co., 116 So. 2d at 662.

In Rosenholz v. Perrine Development Company, 340 So.2d 1264 (Fla. 4th DCA 1976), the Fourth District examined a case where material was removed from land to create a lake for lake front property. The company that rented equipment for excavation to the developer sued the property owner for enforcement of a construction lien on the property. The court found that while the excavation did not increase the value of the land, the improvement constituted an improvement and permitted the enforceable lien.

In sum, Florida courts have strictly interpreted the "permanency" portion of the definition of "improvement" while giving a more liberal effect to the requirement that an improvement "benefit" a particular property. As such, potential lienors should carefully consider the character of the potential improvement in order to understand whether enforceable liens will be created.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.