Phone: 727-397-5571

Perspectives on Florida Law
August, 2012

Construction Liens - Paul R. Cavonis, Esq.

For anyone having work done on their property, understanding the construction lien law is extremely important. Unfortunately, many property owners do not understand the law and wind up paying twice for the same work. The purpose of this article is to avoid this result.

First the basics: a construction lien is a lien placed on your property by someone ("lienor") who performs work or delivers material to the property. The lien protects the lienor from non-payment. If the lien isn't paid, the lienor can foreclose the lien and sell the property at a public auction, with the proceeds of the sale used to satisfy the lien. This is a very general overview which doesn't consider the priority of the lien in relation to other liens or mortgages. However, the bottom line is that construction liens are not good for the property owner and must be taken seriously. Contrary to what many people think, a construction lien can be enforced against your homestead property. There is a specific exception to the homestead protection in the Florida Constitution which permits this.

The best way to explain the nuts and bolts of a construction lien is to use an example. Let's assume you hire Charlie Contractor to build an addition on your house and Charlie Contractor sub-contracts the work to Frank the Framer. Marty the material supplier delivers all the material to your property for the addition. Assuming Frank and Marty follow the requirements of the construction lien law, they will serve you with a Notice to Owner ("NTO") within 45 days of beginning work or delivering the materials. The purpose of the NTO to put you notice that they are involved in your addition project. You might not otherwise know this since you hired Charlie, not Frank or Marty. You must pay attention to these NTOs since they are the first step Frank and Marty must take to put a lien on your property. Each time you pay Charlie, you must get lien waivers from Frank and Marty. This ensures they have been paid for the work performed or materials delivered through the date of the payment to Charlie. If you pay Charlie without getting lien waivers from Frank and Marty, and Charlie does not pay them, Frank and Marty can file a lien against your property. The lien covers the amount they are owed for the work or materials, plus interest, costs and attorney fees. If a lawsuit is brought to foreclose the lien, the attorney fees and costs can greatly exceed the amount originally owed for the work or materials. This doesn't make for a happy property owner.

You must also get a contractor's final affidavit and final lien waiver from Charlie, and final lien waivers from Frank and Marty, before you make final payment. If you don't and Charlie doesn't pay Frank or Marty, your property is subject to a construction lien. Charlie can also lien your property if you don't pay him. However, Charlie isn't required to send you a NTO since you have a direct contract with him. A construction lien must be filed within 90 days of the work being done or delivery of the materials or it is barred.

Protect yourself by hiring a reputable contractor. Familiarize yourself with the basic requirements of the construction lien law.  When in any doubt, hire a lawyer familiar with the construction lien law to help you avoid a lien and paying twice for the same work.

Co-Ownership - by Peter Hofstra, Esq.

Often, title to real property is held in the names of more than one person. This memo will briefly discuss the three methods of joint ownership using Jack and Jill as our fictional owners.

Joint Tenants with Rights of Survivorship If Jack and Jill hold title as "Jack and Jill, with full rights of survivorship", Jack and Jill each owns an undivided 1/2 interest in the property. Additionally, when one of them dies, the survivor becomes the sole owner. The survivor would only need to record the death certificate of the deceased joint tenant and sole ownership would be established in the survivor. In order to create a joint tenancy with rights of survivorship, the deed must clearly reflect the survivorship intention. If it does not, Jack and Jill will take title as set forth below. The preferred language is "Jack and Jill, as joint tenants with full rights of survivorship". A deed by either Jack or Jill to a third party severs the survivorship feature of the joint tenancy.

Tenants in Common. If Jack and Jill hold title simply as "Jack and Jill", each owns an undivided 1/2 interest in the property, and each is free to convey his interest in the property without the consent of the other. However, when one of them dies, his or her interest passes to his or her estate and not to the other owner.

Tenants by the Entirety. If Jack and Jill are married to one another at the time they acquire title to the property, they are tenants by entirety. The fact of marriage can be established by the deed reflecting "Jack and Jill, husband and wife" or by other component evidence. A tenancy by the entirety has the element of survivorship implied. Tenants by the entiretycannot convey their respective interests in the property independently of each other.

Mass Tort � Pelvic Mesh  - by Colin Colgan, Esq.

Mesh products first came on the market in the 1950s for use in hernia repairs. In the 1970s, surgeons began using the mesh "off label" for abdominal procedures, and for vaginal procedures in the mid-1990s. The alarming safety controversy regarding pelvic mesh products utilized during the surgical repair of certain female conditions continues to mount.

The mesh products at the center of the litigation are made of a non-absorbable synthetic polypropylene and are implanted transvaginally to treat pelvic organ prolapse or urinary problems.

Studies indicate that nearly 10% of women who have the mesh placed transvaginally experience mesh erosion (also called exposure, extrusion, or protrusion) with 12 months of surgery. Mesh erosion can require multiple surgeries to repair and can be debilitating and life-altering for some women. The other most frequent complications include pain, dyspareunia, infection, urinary problems, bleeding, organ perforation, recurrent prolapse, neuromuscular problems, and vaginal scarring/shrinkage.

There are numerous manufacturers of synthetic vaginal mesh products, and the adverse reports have been linked to multiple manufacturers/brands of the mesh. If you or a loved one have suffered a serious complication following mesh-repair surgery for pelvic organ prolapse or stress urinary incontinence, please contact the trial attorneys, Colin Colgan or Paul Cavonis at 727-397-5571.

Estate Planning Checkup - by Dennis R. DeLoach, Jr., Esq.

It is not unusual to come across clients who signed their Last Will and Testament other estate planning documents several years ago but have given no thought of reviewing or updating them since that time. Circumstances in our lives change frequently and it is wise to review these documents at least every 3 years.

For your convenience, I've assembled a short list of documents to jog your memory.  Certainly, if you don't have one or more of the documents listed, I encourage you to give us a call at 727-397-5571 to see whether a particular document is right for you.

  1. Last Will and Testament - Is your will up to date?
  2. Designation of Health Care Surrogate  - Is your health care surrogate up to date?
  3. Durable Power of Attorney  - Is your power of attorney up to date?
  4. Living Will - Is your living will up to date?
  5. Trust (if you have one) - Does your trust need amended?
  6. Trust (if you have one) - Does your trust need funded?
  7. Insurance beneficiaries  - Are your beneficiaries up to date?
  8. 401K and IRA beneficiaries - Are your beneficiaries up to date?
  9. Life Insurance - Do you have adequate life and other insurance?
  10. Funeral arrangements - Have you made funeral arrangements or does your next of kin know your wishes?

If you need assistance with the preparation of the documents mentioned above, please contact DeLoach and Hofstra, P.A.

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