In Allstar Building Materials, Inc. v. Kronauer, 24 Fla. L. Weekly D53 (Fla. 5th DCA Dec. 23, 1998), the Fifth District Court of Appeals upheld dismissal of a material supplier's lien foreclosure for failure to substantially comply with the statutorily prescribed form for Notice to Owner.
In this Volusia county case, a materials supplier brought a lien foreclosure action against the owner. The trial court dismissed the law suit and the supplier appealed.
The issue on appeal was whether the supplier's notice to owner was in substantial compliance with the form prescribed by the legislature. The format for a notice to owner is set forth in Section 713.06, Florida Statutes.
The supplier claimed that the information provided by its notice to owner was substantially the same information as set out in the prescribed form. However, the court of appeals found the supplier's notice lacking.
The court took issue with three items. The supplier's notice was directed to the owner and the contractor rather than just to the owner. The court held that this change diluted the importance of the notice from something that applied to the owner alone. Secondly, the supplier completely omitted from its notice, the capitalized warnings beginning with "IMPORTANT INFORMATION FOR YOUR PROTECTION." Finally, many other important provisions prominently displayed in the statutory form were dramatically reduced in type size from that shown in the form and reproduced in the supplier's notice as though they were footnotes.
The court stated that the prescribed form itself is important and that, compared to the supplier's notice, the form prescribed by the legislature better conveys the warnings required in order to justify a lien on the property of one not in privity. The court determined that the changes and omissions in the supplier's notice to owner did not adequately convey those warnings.
The court acknowledged that those preparing industry forms may desire to be creative. The court did not go so far as to say that any deviation from the statutory form would not meet the "substantial compliance" standard. However, the court stated that when the legislature has set out a form which it deems appropriate for the purpose there is simply no need to "reinvent the wheel." In the case of construction liens, the legislature has directed that the required notice to owner "must be in substantially" the form prescribed.