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NON-CONTRACTING SPOUSE’S INTEREST IN REAL PROPERTY IS SUBJECT TO LIENS

  • Lien Claims
  • Stearns, Roberts & Guttentag, LLC
  • No Comments
  • May 16, 2017

NON-CONTRACTING SPOUSE’S INTEREST IN REAL PROPERTY IS SUBJECT TO LIENS

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC

Pursuant to Florida’s Construction Lien Law, when a contract for improving real property is made with a husband or wife (but not both) who is not separated and living apart from his or her spouse, and the property is owned by the other or by both, the non-contracting spouse’s interest in the real property is subject to construction liens.

In Mullne v. Sea-Tech Construction, Inc., 2012 WL 1315864 (Fla. 4th DCA 2012), a husband and wife owned real property. The wife entered into a contract with a Contractor under which the Contractor agreed to construct a seawall on the property. Subsequently, the Contractor alleged that it remained unpaid for the improvements it furnished on the property, and filed a Complaint asserting an action for breach of contract against only the wife, and an action to foreclose a construction lien against both the wife and husband. When the husband and wife failed to respond to the Complaint, the Contractor obtained a Default Final Judgment against both the husband and wife. The husband and wife filed a motion to vacate the Default Final Judgment, which was denied by the trial court. The husband appealed the trial court’s order denying the motion to vacate.

The husband argued on appeal that the trial court abused its discretion in denying the motion to vacate the judgment because the judgment was void, in part, on the grounds that the Complaint failed to state a cause of action against him for breach of contract.

Under Florida Statute, Section 713.12, if one spouse enters into a contract for improvements to real property, the non-contracting spouse’s interest in the property is also bound under the agreement so long as the property is owned by at least one spouse and the couple is not separated and living apart – unless the non-contracting spouse within 10 days of learning of such contract, gives the contractor and records in the clerk’s office, notice of his or her objection to the contract. However, Florida Statute, Section 713.12 reaches only to the property upon which the improvements were made, and does not include personal liability on the part of the non-contracting spouse.

The appellate court explained that the Contractor’s Complaint alleged only the foreclosure of the lien against the husband, and that its breach of contract action was only against the wife. The court reasoned that although the husband’s interest in the property could have been encumbered, no personal liability could be attached to the husband under Florida Statute, Section 713.12, and therefore the husband could not be held personally liable. Thus, the appellate court reversed the order denying the husband’s motion to vacate the default final judgment.

This case demonstrates that pursuant to Florida’s Construction Lien Law, when a contractor enters into a contract with a husband or wife (but not both) for improving real property, and the husband and wife are not separated and living apart, and the property is owned by the other or by both, the non-contracting spouse’s liability only extends to his or her interest in the property. The non-contracting spouse is not personally liable under the lien law.

About the Author: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag exclusively in construction law including construction lien claims and defense, payment and performance bond claims and defense, bid protests, construction contract preparation and negotiation, and construction and design defect claims and defense. He can be reached for consultation at reg@stearnsroberts.com.