A lien notice or a lien foreclosure suit can turn a construction job into a costly fight. Before you decide anything, you’ll probably want to know whether attorney fees can come back to you.
Attorney fees in Florida lien law are not automatic. In Florida, each side usually pays its own lawyer. Fees shift only when a contract or a statute provides for them, or when a court sanctions a claim with no support.
Florida Lien Cases Draw Fees From Three Routes
Whether attorney fees can be recovered in a Florida lien dispute depends on the specific facts of each case. The facts decide which route applies.
Construction lien matters in Florida are governed by state statutes, and the rules that apply depend on the facts of each project. Florida follows the American Rule. Under it, each party generally bears its own attorney’s fees unless a contract or statute provides otherwise, as the Florida Supreme Court’s decision in Price v. Tyler confirms.
If a lien notice or foreclosure suit has landed on your business unexpectedly, you do not have to work out the fee options alone. Call (305) 570-2208 to talk through your situation. Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
Winning a Lien Case Does Not Automatically Bring Fees Back
Winning does not, by itself, let you collect your lawyer’s bill from the other side. A court needs a legal basis for fees first, and then it sets a reasonable amount.
Florida courts start from a strong presumption. Under Fla. Stat. § 57.104, a lodestar fee (one based on the time and labor involved) is presumed sufficient and reasonable. That presumption may be overcome only in a rare and exceptional circumstance, with evidence that competent counsel could not otherwise be retained.
The sanctions statute, Fla. Stat. § 57.105, can also shift fees. If the losing party or the losing party’s attorney knew or should have known that a claim or defense lacked material factual support, or support in then-existing law, the court awards the prevailing party a reasonable fee, paid in equal amounts by the losing party and the losing party’s attorney, but for the then-existing-law ground no fee may be awarded if the claim was initially presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, with a reasonable expectation of success; and a party seeking sanctions must first serve the motion and may file it only if the challenged claim or defense is not withdrawn or corrected within 21 days. Under subsection (3)(b) of Fla. Stat. § 57.105, monetary sanctions may not be awarded under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts, and under subsection (3)(c), monetary sanctions may not be awarded under paragraph (1)(b) against a represented party.
Many people assume the winner collects fees automatically.
How a Contract Fee Clause Changes the Picture
A contract fee clause can create a route to fees, but its wording controls the result. Read who the clause covers and whether it works both ways.
Under § 57.105(7), if a contract lets a party recover fees for enforcing it, the court may also allow fees to the other party when that party prevails, for any contract entered into on or after October 1, 1988. That applies whether the other side was the plaintiff or the defendant.
Courts also review unfair terms. To refuse to enforce a term as unconscionable, a Florida court must find both procedural unfairness and substantive unfairness, weighed together. See Basulto v. Hialeah Automotive.
Be careful with unjust enrichment as a backup. Where an express contract covers the same subject, claims from that relationship generally cannot proceed as unjust enrichment, as Williams v. Johnson explains. Contractors and subcontractors often sign standard forms with fee terms nobody discussed. Those terms still need a close read.
Attorney Charging Liens on a Recovery
A charging lien is a lawyer’s claim against money from a case for unpaid fees. It is not the same as a construction lien, which is filed against property.
Whether a charging lien applies depends on the fee agreement and the work done. Many people skim that agreement, yet it sets out how fees are paid from a recovery.
Ask how the fee would be paid if a settlement comes in before fees are settled. Get the answer in writing so you can compare it with the agreement later. Lawyer fee arrangements are addressed in the Florida Bar fee rules.
Bond Claims Have Their Own Fee Terms
A bond claim is a different path from a lien on property.
A bond may carry fee language of its own. The default rule still applies: fees come from a contract or a statute, and the details of each bond matter.
Bond claims turn on documents and dates. Check the paperwork closely before you assume fees are recoverable, and keep copies of every notice you sent or received.
Offer of Judgment Rules Can Shift Fees Too
Florida’s offer of judgment statute can shift fees after a settlement offer is rejected. It applies when the judgment is one of no liability, or when the judgment is at least 25 percent less than a defendant’s offer or at least 25 percent greater than a plaintiff’s demand, and the offer or demand was not accepted within 30 days.
Under § 768.79, a defendant’s offer not accepted within 30 days can shift reasonable costs and fees. That happens if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than the offer. A plaintiff’s demand works the same way in reverse, if the judgment is at least 25 percent more.
The statute applies to civil actions for damages. Section 45.061 sets its own timing rules. Subsection (6) provides that the section does not apply to causes of action that accrue after its effective date, and subsection (4) provides that it does not apply to any class action or shareholder derivative suit or to matters relating to dissolution of marriage, alimony, nonsupport, eminent domain, or child custody, so whether these timing rules govern a particular dispute depends on when the cause of action accrued and what kind of case it is.
Each statute has its own clock. Track the dates from the day an offer is served, and keep these rules separate from lien fee awards.
Not sure what your next step is?
Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
Talk Through Your Lien Situation With Ayala Law PA
If you were handed a lien notice or a foreclosure complaint you did not expect, the fee question depends on your contract and the facts.
If a lien claim or foreclosure suit has landed on your business without warning, you don’t have to sort through the contract and fee options alone. Call (305) 570-2208 or contact Ayala Law PA to talk through your situation.
Ayala Law PA’s only office is at 1646 W Snow Ave in Tampa, Florida. Eduardo A. Maura is the responsible lawyer for this page. The firm works with businesses in Hillsborough County, Brandon, Riverview, Plant City, Temple Terrace and the Tampa Bay area.
This page is general information, not legal advice. A prospective client may not obtain the same or similar results.
Frequently asked questions
Does the losing side pay the winner’s lawyer in a Florida lien case?
Not automatically. Florida generally follows the American Rule, so fees shift only when a contract or statute provides for them.
Who wins matters.
Under § 768.79, a defendant’s offer needs acceptance within 30 days.
Can a fee dispute with my own lawyer go to court?
Usually yes, as a separate lawsuit, unless the fee contract provides for arbitration.
