If there is a construction lien on your property and you don’t like the lien, here are options to deal with the lien:
1. You negotiate a resolution a get a satisfaction of lien to record in the public records. Or, you can transfer the lien to the security of a lien transfer bond, but that just means the lienor would need to foreclose against the bond instead of the real property. In other words, the lien is collateralized by the lien transfer bond and not the real property so it does not resolve the lien.
2. You record a Notice of Contest of Lien to shorten the lienor’s statute of limitations to foreclose on the construction lien to 60 days. (See here.) If the lienor does not timely foreclose, then the lien is of no effect as a matter of law. However, this does force the issue, meaning the lienor may file a lien foreclosure lawsuit sooner than later. (But, if they file the lawsuit sooner, then the lienor was always going to file the lawsuit later.)
3. You can file a lawsuit for an Order to Show Cause under Fla. Stat. s. 713.21(4) and force the lienor to file a lien foreclosure counterclaim within 20 days from service of the show cause summons. (See here.) The only time you’d really do this is if you want to initiate a lawsuit that you’d probably initiate no matter what. Otherwise, the Notice of Contest of Lien is more cost effective and more efficient.
In a recent case, Custom Homes By Triumph, LLC v. Sverdlow, 50 Fla.L.Weekly D1946a (Fla. 2nd DCA 2025), a lienor filed a lien foreclosure lawsuit. The owner asserted a counterclaim that included the Order to Show Cause. The lienor didn’t timely respond to the counterclaim as the lienor was the one that initiated the lawsuit by filing the lien foreclosure lawsuit. The trial court therefore dismissed the lien. Shocking outcome! The lienor appealed and prevailed for a couple of big reasons.
First, with the Order to Show Cause complaint, a lienor’s 20 days to respond is based on the receipt of a specifically worded show cause summons. Here, there was no summons because the owner asserted a counterclaim because, again, the lienor initiated the lawsuit. Without the service of the summons, there is nothing that starts the 20-day clock.
Second, the lienor had already foreclosed. There was nothing for it to do. In response to an Order to Show Cause Complaint, a lienor needs to foreclose on the construction lien within the 20 days. But, here, the lienor already did so. (“The lienor’s obligation is to show cause “why his or her lien should not be enforced by action or vacated and canceled of record,” and the lien must be discharged only “[u]pon failure of the lienor to show cause why his or her lien should not be enforced or the lienor’s failure to commence such action before the return date of the summons.” [The lienor’s] complaint included a cause of action to foreclose its lien. And by seeking to foreclose its lien, [the lienor] was necessarily seeking to enforce it. So even if the clerk had issued a show-cause summons, [the lienor] had already completed one of the two alternative actions — “show cause . . . why [the] lien should not be enforced [by action]” or “commence such action” — that the summons would have directed it to accomplish, that is, commence an action to enforce its lien.” See Custom Homes By Triumph, supra (internal citations omitted))
Look, if you are considering the Order to Show Cause Complaint to deal with a construction lien, there is nothing to consider if the lien is already being foreclosed and you are not the plaintiff. You don’t get a “gotcha” after the lien is already foreclosed because the foreclosing lienor doesn’t respond to a needless claim. This was an appeal over an issue that should have never been an issue.
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.