An owner may occasionally benefit from shortening the time in which a lien holder may file suit to foreclose its lien. One way to accomplish this is to serve a Notice of Contest of Lien.
Specifically, the lien of any lien holder upon whom such notice is served shall be extinguished automatically unless the lienor institutes a suit to enforce his or her lien within 60 days. The clerk shall mail a copy of the Notice of Contest to the lien claimant at the address shown in the Claim of Lien. Service shall be deemed complete upon mailing. The Notice of Contest acts by operation of law to discharge a lien on 60th day without any intervention of the court. Moreover, the filing of a Notice of Contest of Lien should not violate an automatic stay imposed by the Bankruptcy Code.
A more drastic method for shortening the deadlines of a Claim of Lien is to file a complaint against the lienor demanding that the lienor show cause why the lien in question should not be vacated. Upon the failure of the lienor to show cause why the lien should not be enforced or the lienor’s failure to commence such action before the return date of the summons, the court shall immediately order cancellation of the lien.
A lienor’s motion for extension of time to respond to the property owner’s motion for discharge of lien does not constitute “good cause” as required by the mechanic’s lien statute for tolling of the statutory 20-day period. Strict compliance with statutory provisions is required in order to protect a lien. The court has no discretion to extend the 20-day period, even if the lienor requests additional time to obtain counsel.
Alexander Barthet is a board certified construction attorney in Florida and holds a B.S. in mechanical engineering. He manages The Barthet Firm, a construction law firm in Miami, and maintains a construction law blog at www.TheLienZone.com. He can be reached at 305-347-5295 or alex@barthet.com.
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