How Do I Enforce a Lien in Florida for Repairs to a Boat?
Full Question:
Answer:
To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed.
There are several types of liens, all of which could cloud the title and prevent the seller from conveying marketable title to the buyer. A judgment lien is created when a court grants a creditor an interest in the debtor's property, based upon a court judgment. A judgment lien can be filed if an actual judgment in a lawsuit is obtained from a court. Such cases include failure to pay a debt, including credit cards, bank loans, or deficiency judgments on repossessed vehicles. In some circumstances, judgments can be enforced by sale of property until the amount due is satisfied. A plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor."
A judgment lien is created when a plaintiff gets a judgment for money damages against a defendant and records that judgment in the county where land of the defendant is located. After the judgment creditor places a lien upon the attached property, the next step in the collection process is to conduct a sale of the attached property to satisfy the judgment debt. If a lien were placed on a vehicle, the judgment creditor would then seek to sell the vehicle, in the same way a mortgage holder such as a bank would foreclose if it were not paid.
Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.
An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.
Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.
Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.
Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.
Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.
Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.
Please see the following FL statutes:
713.60 Liens for labor on or for vessels. —
In favor of any person performing for himself or herself or
others, any labor, or furnishing any materials or supplies
for use in the construction of any vessel or watercraft; and
in favor of any person performing for himself or herself or
others, any labor or service of any kind, on, to or for the
use or benefit of a vessel or watercraft, including masters,
mates and members of the crew and persons loading or
unloading the vessel or putting in or taking out ballast;
upon such vessel or watercraft, whether partially or
completely constructed and whether launched or on land, her
tackle, apparel and furniture.
713.58 Liens for labor or services on personal property. —
(1) In favor of persons performing labor or services for any
other person, upon the personal property of the latter upon
which the labor or services is performed, or which is used
in the business, occupation, or employment in which the
labor or services is performed.
(2) It is unlawful for any person, knowingly, willfully, and
with intent to defraud, to remove any property upon which a
lien has accrued under this section without first making
full payment to the person performing labor or services of
all sums due and payable for such labor or services or
without first having the written consent of such person so
performing the labor or services so to remove such property.
(3) In that the possessory right and lien of the person
performing labor or services under this section is released,
relinquished, and lost by the removal of such property upon
which a lien has accrued, it shall be deemed prima facie
evidence of intent to defraud if, upon the removal of such
property, the person removing such property utters,
delivers, or gives any check, draft, or written order for
the payment of money in payment of the indebtedness secured
by the lien and then stops payment on such check, draft, or
written order.
(4) Any person violating the provisions of this
section shall be deemed guilty of a misdemeanor and upon conviction
shall be punished by fine of not more than $500 or
imprisonment in the county jail for not more than 3 months.
713.78 Liens for recovering, towing, or storing vehicles and vessels.—
(1) For the purposes of this section, the term:
(a) "Vehicle" means any mobile item, whether motorized or
not, which is mounted on wheels.
(b) "Vessel" means every description of watercraft, barge,
and airboat used or capable of being used as a means of
transportation on water, other than a seaplane or a
"documented vessel" as defined in s. 327.02(9).
(c) "Wrecker" means any truck or other vehicle which is used
to tow, carry, or otherwise transport motor vehicles or
vessels upon the streets and highways of this state and
which is equipped for that purpose with a boom, winch, car
carrier, or other similar equipment.
(2) Whenever a person regularly engaged in the business of
transporting vehicles or vessels by wrecker, tow truck, or
car carrier recovers, removes, or stores a vehicle or vessel
upon instructions from:
(a) The owner thereof;
(b) The owner or lessor, or a person authorized by the owner
or lessor, of property on which such vehicle or vessel is
wrongfully parked, and the removal is done in compliance
with s. 715.07; or
(c) Any law enforcement agency,
she or he shall have a lien on the vehicle or vessel for a
reasonable towing fee and for a reasonable storage fee;
except that no storage fee shall be charged if the vehicle
is stored for less than 6 hours.
(3) This section does not authorize any person to claim a
lien on a vehicle for fees or charges connected with the
immobilization of such vehicle using a vehicle boot or other
similar device pursuant to s. 715.07.
(4)(a) Any person regularly engaged in the business of recovering,
towing, or storing vehicles or vessels who comes into possession of a
vehicle or vessel pursuant to subsection (2), and who claims a lien for
recovery, towing, or storage services, shall give notice to the
registered owner, the insurance company insuring the vehicle
notwithstanding the provisions of s. 627.736, and to all persons claiming
a lien thereon, as disclosed by the records in the Department of Highway
Safety and Motor Vehicles or of a corresponding agency in any other
state.
(b) Whenever any law enforcement agency authorizes the removal of a
vehicle or vessel or whenever any towing service, garage, repair shop, or
automotive service, storage, or parking place notifies the law
enforcement agency of possession of a vehicle or vessel pursuant to s.
715.07(2)(a)2., the law enforcement agency of the jurisdiction
where the vehicle or vessel is stored shall contact the Department of
Highway Safety and Motor Vehicles, or the appropriate agency of the state
of registration, if known, within 24 hours through the medium of
electronic communications, giving the full description of the vehicle or
vessel. Upon receipt of the full description of the vehicle or vessel,
the department shall search its files to determine the owner's name, the
insurance company insuring the vehicle or vessel, and whether any person
has filed a lien upon the vehicle or vessel as provided in s. 319.27(2)
and (3) and notify the applicable law enforcement agency within 72
hours. The person in charge of the towing service, garage, repair shop,
or automotive service, storage, or parking place shall obtain such
information from the applicable law enforcement agency within 5 days
after the date of storage and shall give notice pursuant to paragraph
(a). The department may release the insurance company information to the
requestor notwithstanding the provisions of s. 627.736.
(c) Notice by certified mail shall be sent within 7 business days after the date of storage of the vehicle or vessel to the registered owner, the insurance company insuring the vehicle notwithstanding the provisions of s. 627.736, and all persons of record claiming a lien against the vehicle or vessel. It shall state the fact of possession of the vehicle or vessel, that a lien as provided in subsection (2) is claimed, that charges have accrued and the amount thereof, that the lien is subject to enforcement pursuant to law, and that the owner or lienholder, if any, has the right to a hearing as set forth in subsection (5), and that any vehicle or vessel which remains unclaimed, or for which the charges for recovery, towing, or storage services remain unpaid, may be sold free of all prior liens after 35 days if the vehicle or vessel is more than 3 years of age or after 50 days if the vehicle or vessel is 3 years of age or less.
(d) If attempts to locate the name and address of the owner or
lienholder prove unsuccessful, the towing-storage operator shall, after 7
working days, excluding Saturday and Sunday, of the initial tow or
storage, notify the public agency of jurisdiction where the vehicle or
vessel is stored in writing by certified mail or acknowledged hand
delivery that the towing-storage company has been unable to locate the
name and address of the owner or lienholder and a physical search of the
vehicle or vessel has disclosed no ownership information and a good faith
effort has been made. For purposes of this paragraph and subsection (9),
"good faith effort" means that the following checks have been performed
by the company to establish prior state of registration and for title:
1. Check of vehicle or vessel for any type of tag, tag record, temporary
tag, or regular tag.
2. Check of law enforcement report for tag number or other information
identifying the vehicle or vessel, if the vehicle or vessel was towed at
the request of a law enforcement officer.
3. Check of trip sheet or tow ticket of tow truck operator to see if a
tag was on vehicle or vessel at beginning of tow, if private tow.
4. If there is no address of the owner on the impound report, check of
law enforcement report to see if an out-of-state address is indicated
from driver license information.
5. Check of vehicle or vessel for inspection sticker or other stickers
and decals that may indicate a state of possible registration.
6. Check of the interior of the vehicle or vessel for any papers that may
be in the glove box, trunk, or other areas for a state of registration.
7. Check of vehicle for vehicle identification number.
8. Check of vessel for vessel registration number.
9. Check of vessel hull for a hull identification number which should
be carved, burned, stamped, embossed, or otherwise permanently affixed to
the outboard side of the transom or, if there is no transom, to the
outmost seaboard side at the end of the hull that bears the rudder or
other steering mechanism.
(5)(a) The owner of a vehicle or vessel removed pursuant to the
provisions of subsection (2), or any person claiming a lien, other than
the towing-storage operator, within 10 days after the time she or he has
knowledge of the location of the vehicle or vessel, may file a complaint
in the county court of the county in which the vehicle or vessel is
stored to determine if her or his property
was wrongfully taken or withheld from her or him.
(b) Upon filing of a complaint, an owner or lienholder may have her or
his vehicle or vessel released upon posting with the court a cash or
surety bond or other adequate security equal to the amount of the charges
for towing or storage and lot rental amount to ensure the payment of such
charges in the event she or he does not prevail. Upon the posting of the
bond and the payment of the applicable fee set forth in s. 28.24, the
clerk of the court shall issue a certificate notifying the lienor of the
posting of the bond and directing the lienor to release the vehicle or
vessel. At the time of such release, after reasonable inspection, she or
he shall give a receipt to the towing-storage company reciting any claims
she or he has for loss or damage to the vehicle or vessel or the contents
thereof.
(c) Upon determining the respective rights of the parties, the court
may award damages, attorney's fees, and costs in favor of the prevailing
party. In any event, the final order shall provide for immediate payment
in full of recovery, towing, and storage fees by the vehicle or vessel
owner or lienholder; or the agency ordering the tow; or the owner,
lessee, or agent thereof of the property from which the vehicle or vessel
was removed.
(6) Any vehicle or vessel which is stored pursuant to subsection (2)
and which remains unclaimed, or for which reasonable charges for
recovery, towing, or storing remain unpaid, and any contents not released
pursuant to subsection (10), may be sold by the owner or operator of the
storage space for such towing or storage charge after 35 days from the
time the vehicle or vessel is stored therein if the vehicle or vessel is
more than 3 years of age or after 50 days following the time the vehicle
or vessel is stored therein if the vehicle or vessel is 3 years of age or
less. The sale shall be at public sale for cash. If the date of
the sale was not included in the notice required in subsection (4),
notice of the sale shall be given to the person in whose name the vehicle
or vessel is registered and to all persons claiming a lien on the vehicle
or vessel as shown on the records of the Department of Highway Safety and
Motor Vehicles or of the corresponding agency in any other state. Notice
shall be sent by certified mail, return receipt requested, to the owner
of the vehicle or vessel and the person having the recorded lien on the
vehicle or vessel at the address shown on the records of the registering
agency and shall be mailed not less than 15 days before the date of the
sale. After diligent search and inquiry, if the name and address of the
registered owner or the owner of the recorded lien cannot be
ascertained, the requirements of notice by mail may be dispensed with. In
addition to the notice by mail, public notice of the time and place of
sale shall be made by publishing a notice thereof one time, at least 10
days prior to the date of the sale, in a newspaper of general circulation
in the county in which the sale is to be held. The proceeds of the sale,
after payment of reasonable towing and storage charges, and costs of the
sale, in that order of priority, shall be deposited with the clerk of the
circuit court for the county if the owner or lienholder is absent, and
the clerk shall hold such proceeds subject to the claim of the owner or
lienholder legally entitled thereto. The clerk shall be entitled
to receive 5 percent of such proceeds for the care and disbursement
thereof. The certificate of title issued under this law shall be
discharged of all liens unless otherwise provided by court order. The
owner or lienholder may file a complaint after the vehicle or vessel has
been sold in the county court of the county in which it is stored. Upon
determining the respective rights of the parties, the court may award
damages, attorney's fees, and costs in favor of the prevailing party.
(10) Persons who provide services pursuant to this section shall permit
vehicle or vessel owners, lienholders, or their agents, which agency is
evidenced by an original writing acknowledged by the owner before a
notary public or other person empowered by law to administer oaths, to
inspect the towed vehicle or vessel and shall release to the owner,
lienholder, or agent the vehicle, vessel, or all personal property not
affixed to the vehicle or vessel which was in the vehicle or vessel at
the time the vehicle or vessel came into the custody of the person
providing such services.
85.011 Enforcement by persons in privity with the owner. —
All liens on real or personal property provided for by
part I or part II of chapter 713 are enforceable by persons in
privity with the owners, except when otherwise provided, as
follows:
(1) RETENTION OF POSSESSION. — By retention of possession of
the property on which the lien has attached for a period of
not exceeding 3 months by the person entitled to the lien,
if the person was in possession at the time the lien
attached.
(2) BY ACTION IN CHANCERY. — By an action in chancery,
however this is the exclusive remedy for enforcement of
liens on the separate statutory property of married women
and against estates by the entireties.
(3) ORDINARY ACTION AT LAW. — By an ordinary action at law
and levy of the execution obtained therein on the property
on which the lien is held.
(4) SPECIAL ACTION AT LAW. — By an action at law in which the
complaint shall state the manner in which the lien arose,
the amount for which the lien is held, the description of
the property and demand that the property be sold to satisfy
the lien. The judgment for plaintiff is a personal judgment
against defendant as well as a lien on the property, which
it shall describe, and shall direct execution against the
property, as well as against the property generally of
defendant.
(5) SUMMARY ACTION. —
(a) By a person claiming a lien for labor performed, or
claiming a landlord's lien under s. 713.691, filing in the
court having jurisdiction of the amount of the lien claimed,
a complaint describing the property on which a lien is
claimed and stating the facts which authorize or create the
lien. Such person is entitled to the summary procedure under
s. 51.011.
(b) If the issues are found for plaintiff, judgment shall be
entered for the amount found to be due him or her with
15 percent attorney's fee and costs. The judgment is a prior
lien on the property described in the petition over all
other liens accruing or that may be filed subsequent to the
day the lien for such labor performed or unpaid rent
accrued, but if such issues are found for defendant,
judgment shall be entered dismissing the action.
85.021 Enforcement by persons not in privity with the
owner. —
A person not in privity with the owner may resort to any of
the remedies prescribed by s. 85.011. The judgment may
provide for the recovery from the contractor or other person
for whom the labor or material was furnished, if the
contractor or other person is joined in the action, of the
amount due by him or her, and from the owner of the amount
due by the owner to the contractor or other person as
aforesaid, at the time of the service of the notice provided
for by s. 713.75 of part II of chapter 713, as well as
enforce the lien against the property of such owner for such
amount, but only one satisfaction of the judgment shall be
had. Although no lien is found to exist and no judgment
rendered against the owner, judgment may be rendered against
the contractor or other person for whom the labor or
materials were furnished for the amount due by him or her.
85.031 Remedies against personal property only; all
lienors. —
(1) BY INJUNCTION AND ATTACHMENT. — If any person entitled to
a lien under part II of chapter 713 on personal property has
reason to believe that it is about to be removed from the
county in which it is, the person may enjoin its removal in
the manner provided for enjoining the removal of property
subject to a mortgage or, if the lien has been perfected,
may attach it in the manner provided for attachment in aid
of foreclosure of mortgages.
(2) BY SALE WITHOUT JUDICIAL PROCEEDINGS. — When any person
entrusts to any mechanic or laborer, materials with which to
construct, alter, or repair any article of value, or any
article of value to be altered or repaired, and if the
article is completed and not taken away, and the reasonable
charges not paid, such mechanic or laborer may sell it
after 3 months from the time such charges become due at
public auction for cash but before the sale the mechanic or
laborer shall give public notice of the time and place
thereof, by notices posted for 10 days in 3 public places in
the county, one of which shall be at the courthouse, and
another in some conspicuous part of his or her shop or place
of business. The proceeds of the sale, after payment of
charges for construction or repair with the costs of the
sale, shall be deposited with the clerk of the circuit court
for the county, if the owner is absent, where they shall
remain subject to the order of the person legally entitled
thereto. The clerk shall be entitled to receive 5 percent on
the proceeds for the care and disbursement thereof. Any
person claiming a lien under s. 713.65, of part II of
chapter 713, may enforce it by sale without judicial
proceedings in the manner set forth herein after 1 month
after the time the charges for which a lien is claimed
become due.
85.051 Time of bringing action. —
When there has been no record of a notice of lien, action to
enforce a lien (if it exists without such record) must be
brought within 12 months from the accrual of the unpaid
rent, the performance of the work, or the furnishing of the
materials, and if there has been such record, the action
must be brought within 12 months from the time of such
record.
