Just because a party does not pursue its lien rights, or waives it lien rights, or satisfies its lien, does NOT mean the party is foreclosed of its other rights, such as breach of contract or unjust enrichment. Florida’s Construction Lien Law even states that it is “cumulative to other existing remedies and nothing contained in this party shall be construed to prevent any lien or assignee under any contract from maintaining an action thereon at law in like manner as if he or she had no lien for the security of his or her debt, and the bringing of such action shall not prejudice his or her rights under this part, except as herein otherwise expressly provided.” See Fla. Stat. s. 713.30.

Yet, a party will still try to raise a party’s satisfaction of lien or waiver of lien rights as some kind of “gotcha” tactic. This is what transpired in Hernandez v. Burleigh House Condominium, Inc., 50 Fla.L.Weekly D1802a (Fla. 3d DCA 2025). A lienor recorded a construction lien. The owner recorded a Notice of Contest of Lien to shorten the lienor’s statute of limitations to foreclose on the lien. The lienor elected not to foreclose on the construction lien and, instead, subsequently sued for unjust enrichment. The owner raised the “gotcha” argument, that being that the lienor extinguished its rights to pursue the unjust enrichment claim because it did not timely foreclose on the lien.  While the owner got the trial court to agree with its position, the appellate court was not fooled:

Indeed, it is well settled that the discharge of a construction lien does not preclude a lienor from pursuing other contractual remedies that are available under the common law.  This includes, as here, quasi contract (implied in law) claims for unjust enrichment that seek damages. See Unnerstall v. Designerick, Inc., 17 So. 3d 900, 902 n.2 (Fla. 2d DCA 2009) (directing the trial court to discharge a construction lien for the lienor’s failure to strictly comply with Chapter 713’s requirements, but noting that the lienor “still may enforce its contractual claims” for breach of oral contract, open account, and unjust enrichment); Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So. 2d 383, 389-90 (Fla. 4th DCA 1997) (“The construction lien statutes of some states preclude, or have been construed to preclude, the maintenance of a quasi contract claim. Florida’s construction lien statute contains no similar limitation on a lienor’s potential remedies. . . . [I]n Florida, . . . all implied contract actions were part of the action of assumpsit, which was an action at law under the common law.”) (citations omitted).

Hernandez, supra.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.