FINAL CONTRACTOR’S AFFIDAVIT – SWORN TO OR NOT?

By Larry R. Leiby and David S. Hawkins

In order to protect lien rights as a contractor Fla. Stat. 713.06(3)(d)(1) requires that the contractor give the owner a "Final Contractor’s Affidavit".  This affidavit provides the owner with the status of payments to all lienors working under the contractor.  If a contractor does not give this affidavit to the owner, he  is in default of his or her lien rights, meaning that the contractor may not proceed to enforce the lien.  In the case described below, there was a minor ambiguity that the trial and appellate courts determined was so small that the contractor was allowed to recover.

            In Bell v. Renar Development Co., 2002 WL 385046 (Fla. 4^th DCA 2002) an owner defended the contractors lien claim on the basis that the final contractor's affidavit was not properly sworn.  The alleged fatal act of the contractor related to the wording of the notary's signature block.  The notary portion of the contractor's affidavit stated that the affidavit was "acknowledged" rather than "sworn". The language relating to the taking of an oath (it said "did/did not") was not complete.  The notary did not strike through either "did” or "did not". 

         The owner asserted that these omissions rendered the affidavit something less than an affidavit and thus prevented the contractor from asserting his lien rights.  The court rejected this argument finding that the affidavit stated that the contractor signing it had "personal knowledge" of all the facts set forth in the affidavit, that it specifically provided that all lienors had been paid in full, and that it was made for the purpose of inducing the owners and their lender to make full payment to the contractor in compliance with Fla. Stat. 713 et. seq.  As the court stated, "Although the sentence that the affiant 'did (did not) take an oath" is …ambiguous, it is obvious that the notary simply failed to cross out the inapplicable language."  The contractor signing the affidavit testified at trial that he did take an oath.

            The lien law is not subject to liberal interpretation.  However, in this case, the minor technicality was overlooked and the lien was enforced.