When Should the Clerk Record the Mechanic’s Lien?

In Florida, the Clerk of Court Should Record the Mechanic’s Lien on the Date the Lien Is Received

A recent decision by a Florida Court of Appeals was a win for the lien claimant whose mechanic’s lien was received by the Clerk of Court timely but recorded late. This decision, while victorious for the lienor, is a great reminder to always confirm your document has been received and recorded timely.

Review of Florida Mechanic’s Lien Rights

Before we jump to the court’s decision, let’s review Florida lien rights. If you are furnishing to a private project in Florida, you should serve your preliminary notice upon the owner and all parties within the ladder of supply, prior to or within 45 days from your first furnishing. (If you are furnishing specially fabricated materials, you should serve your notice prior to or within 45 days from the date fabrication begins.) The preliminary notice must be received within the 45-day period – not postmarked, received. Your mechanic’s lien should be filed within 90 days from your last furnishing and suit should be filed within 1 year from the filing of the lien.

The Lien Was Recorded Late, By the Clerk of Court

According to the court opinion, lien claimant Pritchett Trucking (Pritchett) supplied lime rock materials and trucking services to a Costco project in Duval County. Pritchett last furnished on January 26, 2018, which means its mechanic’s lien deadline was April 26, 2018.

Pritchett was owed $118,288.83, and in compliance with statute, Pritchett mailed its mechanic’s lien for recording via certified mail. The lien was received by the Clerk’s office on April 23, 2018 – 3 days before the lien deadline. Unfortunately, the Clerks’ office didn’t record the lien until April 30, 2018 – 4 days after the lien deadline.

When its lien was recorded late, Pritchett petitioned the court to have the Clerk re-record the document, backdating the recording to date to the date the Clerk received it (April 23). Pritchett and the Clerk had differing opinions on when a document is officially accepted for recording.

Pritchett argued the Clerk should have recorded it in compliance with section 28.222(3) of Florida statute, which essentially states the clerk will record documents presented for recording with proper payment for the recording fees. Pritchett did mail proper payment with its mechanic’s lien, so the Clerk should have recorded it when it received the documents.

The Clerk argued under compliance of section 695.11 of Florida statute, which states a document isn’t officially accepted by the Clerk until the Clerk affixes the register number.

They key difference in their arguments lies in the definitions of “accepted” and “received.” Here’s what the court had to say:

“We reject the Clerk’s contention…  Section 695.11 provides that a document is deemed to have been officially accepted by the clerk of court and officially recorded when the clerk affixes the register number that is required under section 28.222. The Clerk conflates the issues of when an instrument is required to be recorded, which is addressed by section 28.222(3), and when an instrument is deemed recorded, which is addressed by section 695.11. Here, there were seven days between when the duty to record arose and when the duty was carried out, which was not ‘upon payment.’”

Bottom Line in the Legal Lingo?

The court agreed with Pritchett. Pritchett’s lien should have been recorded the date the lien and fees were received by the Clerk, which was April 23, 3 days before the lien deadline, making the lien timely.

Now, as I mentioned earlier, as a lienor you should always confirm your document has been received and recorded timely. I would also add, waiting until just before the deadline is not ideal; you should allot adequate time for documents to be received and recorded. The onus is on you to ensure your lien rights are secure.

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