I have had a few cases as of late representing an owner where the contractor in direct privity of contract with the owner failed to serve its contractor’s final payment affidavit on the owner prior to foreclosing on its construction lien. The contractor’s final payment affidavit is not a meaningless form. It is a statutory form required to be filled out by a lienor in direct privity of contract with an owner and served on the owner at least 5 day s prior to the lienor foreclosing its construction lien. Stated differently, a lienor (e.g., contractor) hired directly by an owner must serve the contractor’s final payment affidavit as a condition precedent to foreclosing its construction lien. Failure to do so means the lienor failed to satisfy a statutory condition precedent to foreclose its lien thereby warranting a dismissal of the construction lien foreclosure lawsuit. A dismissal can (and should) likely mean that the lienor will be responsible for paying for the owner’s legal fees and that any re-filing of the lawsuit will be outside of the statute of limitations to foreclose a construction lien. There is no reason for this statutory, procedural technicality to occur!
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