The Florida Bar

Florida Bar Journal

Aircraft Lien Law

Aviation Law

Florida’s statutory scheme governing aviation liens is a labyrinth. Practitioners are required to reconcile at least three different statutory chapters (i.e., Ch. 85, 329, and 713) when perfecting and enforcing an aircraft lien. These laws lack an over-arching coherence to the state’s various mechanic’s lien statutes. What is more, practitioners must further consider that although state law determines priorities, all interests in the aircraft must be federally recorded before they can obtain whatever priority to which they are entitled under state law.[1] Finally, presuming exacting state and federal lien requirements are met, Florida law presents no fewer than five methods for enforcement, including an action in chancery, action at law, special action at law, summary action, and retention of possession.

Aggravating this turbulent legal environment is ambiguity about a question that is as fundamental to the legal concept of a lien as it is confounding to the civil bench and aviation and commercial bar: Are aviation lien rights possessory? Stated otherwise, is a repairman’s right to claim a lien extinguished if or when he voluntarily relinquishes possession of the property on which his or her lien is asserted prior to perfection?

Florida’s Third District Court of Appeal answered both of these questions a decade ago in Commercial Jet, Inc. v. U.S. Bank, N.A., 45 So. 3d 887 (Fla. 3d DCA 2010). That decision, however, not only produced “conflict with just about every cannon of legislative interpretation there is,” according to the dissenting opinion of the late Judge Alan Schwartz, but also established a perverse set of incentives for the aircraft maintenance, repair, and overhaul community.

The Florida Legislature recently amended F.S. Ch. 329 and clarified that possession is not required for perfection purposes; notice suffices. This article tracks the development of this significant change to Florida’s nearly four-decade-old aviation lien laws, contextualizes the change in light of recent caselaw concerning aircraft liens, and offers insight into the law’s policy prospectively.

Possession is Nine-Tenths of the Law…Everything

Aviation liens originate in Title XL, Part II, Ch. 713 of the Florida Statutes — a catch-all statutory section titled, “Miscellaneous Liens.” Under this part is an eclectic jumble of lien laws, including laws for molders and labor or services in connection with cotton ginning; stallions, jackasses, or bulls; hotels; and interior decorating. Part II does not address aviation liens. Nevertheless, aviation practitioners have prosecuted and defended mechanics’ liens involving aircraft on the basis of Florida’s general law lien statute, F.S. §713.58, and its broad language establishing a lien “[i]n favor of persons performing labor or services for any other person, upon the personal property of the latter upon which the labor or services is performed.”[2]

Importantly, caselaw has universally construed liens created under F.S. §713.58 as possessory in nature, existing only as long as the person entitled to the lien retains possession of the property upon which the lien was claimed. As Florida’s Third District Court of Appeal stated in an aviation lien foreclosure action, this statute explicitly provides that “the possessory right and lien of the person performing labor or services under this section is released, relinquished, and lost by the removal of such property.”[3]

Florida statutory law also explicitly prescribes “retention of possession” as an enforcement mechanism for a §713.58 mechanics’ lien. F.S. §85.011 allows a lienor who furnishes labor, services, fuel, or material upon an aircraft to retain possession of an aircraft upon which a lien has accrued for 90 days.[4] Crucially, under the plain terms of this statute, a repairman’s right to so retain possession exists only “if the [lienor] was in possession of the aircraft at the time the lien attached.”[5]


Whereas the perfection and enforcement of Florida’s general law concerning liens over personal property under F.S. §§85.011 and 713.58 turn on possession (albeit only for three months), the statutory regime tailored explicitly to aviation liens (Title XXV, Florida Statutes) identifies notice, not possession, as the sine que non of lien perfection. Indeed, on its face, F.S. §329.51, provides that an aircraft lien is enforceable upon the recordation of a claim of lien within 90 days of the services rendered.[6] The statute states that “[a]ny lien claimed on an aircraft under…§713.58 is enforceable when the lienor records a verified lien notice with the clerk of the circuit court in the county where the aircraft was located at the time the labor, services, fuel, or material was last furnished.”[7]

This statute has been the subject of considerable uncertainty for aviation practitioners, particularly its cross-reference to F.S. §713.58. Did the Florida Legislature codify §329.51 as a modification of the general law concerning liens over personal property provided by §713.58? If so, possession is unnecessary to perfect a lien. All a lienor must do to perfect a lien is to record a verified lien notice as prescribed by the statute.[8] Alternatively, insofar as §329.15 refers to enforceability and not perfection, the statute does not seem to create a lien right so much as it provides the procedures for the enforcement of rights arising from liens that already exist under §713.58.[9] Under this view, resort to §329.51 is unnecessary unless and until a repairman perfects under §713.58.

In all, lining up F.S. §§85.011, 713.58, and 329.51 side-by-side has generated more questions than answers for aviation and commercial lawyers as to the relationship between possession and notice for purposes of perfecting a lien interest in an aircraft under Florida law.

Perfect Timing

One of the first cases to move the needle on the possession versus notice debate was a Ch. 11 bankruptcy proceeding captioned In re Tradewinds Airlines, Inc., 394 B.R. 614 (Bkrtcy. S. D. Fla. 2008), which was decided by a former naval and commercial aviator, U.S. Bankruptcy Judge A. Jay Cristol. The case arose out of the reorganization of a cargo airline that delivered its Airbus A-300 airplane to a maintenance company for a 96-month maintenance check.[10] As part of a dispute between the parties about whether maintenance was actually performed and whether any amount was owed, the maintenance company refused to return the aircraft, asserting a statutory mechanic’s lien under F.S. §713.58.[11] The cargo airline, as debtor, moved to compel turnover of the aircraft, arguing the maintenance company failed to perfect its lien under Florida law because it had failed to timely file its claim of lien prior to the bankruptcy petition date.[12]

The court agreed, reasoning that the maintenance company had complied with only part of a two-step filing process required under Florida law for the perfection of an aircraft lien.[13] By filing a verified notice of lien with the clerk of the circuit court in the Florida county in which the aircraft received labor or service, the maintenance company had complied with the first step under F.S. §329.01, Judge Cristol ruled; however, it failed to record its lien with the Federal Aviation Administration (FAA).[14] More precisely, while the maintenance company recorded its lien before filing its bankruptcy petition, it had not filed its claim of lien with the FAA until after the bankruptcy proceeding commenced.[15] This proved fatal as the court held that the post-petition lien with the FAA did not relate back to an earlier date pre-petition; consequently, the lien was avoidable by virtue of being unperfected.[16]

In re Tradewinds Airlines, Inc., proved helpful in detailing the relationship between state and federal law respecting notice and recordation as it related to the issue of perfection. The court confirmed that the failure to file a notice of lien in the proper state court, and the failure to record a notice of lien with the FAA, proved fatal to the rights of repairmen relying on F.S. §§713.58 and 329.15.

In reaching its conclusion, however, the court sowed doubt about the importance of possession for lien perfection and enforcement purposes. Judge Cristol stated “possession of an aircraft is legally insufficient to perfect a mechanic’s lien against an aircraft under Florida law.”[17] In this regard, In re Tradewinds Airlines, Inc., seemed to give outsize importance to notice over possession, lending support to at least the possibility that notice of a lien under F.S. §329.51, a statute specifically dealing with aircraft liens, was more important — determinative, in fact — of lien perfection, not the state’s general mechanics’ lien established by §713.58. This argument never got off the ground, however.

No Possession, No Possessory Lien

In a brief, four-paragraphed opinion, Commercial Jet, Inc., rejected the argument that §329.51 somehow modified §713.58 by eliminating the requirement that one must have possession of the property in order to claim a lien. The case was brought by an aircraft maintenance and repair company to foreclose a mechanics’ lien on a Boeing 767.[18] Despite the outstanding balance of $57,273.95 owed to it, the maintenance company returned the aircraft to its client.[19] Months after it relinquished possession of the aircraft, the maintenance company recorded a claim of lien under F.S. §§713.58 and 329.51 for the unpaid balance.[20] One year later, it sued to foreclose on the lien.

The Miami-Dade County trial court (Silverman, J.) granted summary judgment, agreeing with the aircraft owner’s assessment that the maintenance company “did not have possession of the aircraft when it attempted to claim a possessory lien under section 713.58 [and therefore could not] proceed in its attempt to foreclose the purported lien.”[21] After the trial court denied its motion for reconsideration, the maintenance company appealed. The maintenance company did not fare any better at the Third District Court of Appeal, however. Judge Angel Cortiñas, who was joined by Judge Leslie Rothenberg, affirmed the lower court’s ruling, reasoning that F.S. §329.51 did “not create any new lien rights” and was “manifestly a notice statute, as is apparent by its title.”[22] Thus, the Third District Court of Appeal held that “section 329.51 has no application here because Commercial Jet never acquired a valid lien under sections 713.58 or 329.41.”[23]

Senior Judge Alan Schwartz dissented, stating F.S. §329.51 “clearly provides that a lien for repairs on an aircraft such as the one in this case is perfected simply by recording a claim of lien within [90] days of the services rendered,” he wrote.[24] Additionally, Judge Schwartz repudiated the majority’s conclusion that §329.51 “did not have the effect specifically provided by the legislature.”[25] In this regard, Judge Schwartz characterized the majority’s opinion as:

in conflict with just about every canon of legislative interpretation there is, including: that statutory words must be accorded their plain meaning; that every statute must be deemed to have some meaning and accomplish something (here, the court’s ruling renders the filing of the lien of no effect whatever); that a statute dealing with a specific subject, such as aircraft, must be deemed to control over a general one such as section 713.58, which applies to all personal property, and no doubt other general rules which no one has thought it necessary to devise — until now. [26]

The Florida Supreme Court accepted jurisdiction to review the decision, but later discharged jurisdiction (as “improvidently granted”) and dismissed the review proceeding. [27]

Possession equals perfection was the legacy of Commercial Jet, Inc.,[28] but the case did not necessarily put to rest the possession versus notice problem as a practical matter. In fact, it apparently intensified a concern among aircraft maintenance and repair providers to retain possession of an aircraft as long as possible — even wrongfully — lest they lose their rights by running afoul of the “no possession, no lien” tagline associated with Commercial Jet, Inc.

Lien Up and Hold

That concern presented itself in J.V. Air Maintenance, Inc. v. Westwind Leasing Corp., 238 So. 3d 379 (Fla. 3d DCA 2019). There, an aircraft leasing company refused to pay a repair bill it deemed “grossly exaggerated.” As a result, the maintenance company sued to foreclose on a mechanics’ lien it recorded against the aircraft. It also retained possession of the aircraft beyond the three-month period authorized by F.S. §85.011 and served the aircraft’s owner with a notice of judicial sale, indicating its intent to sell the aircraft at public auction. The trial court entered orders cancelling the proposed non-judicial sale and directing the return of the aircraft. An appeal followed and the Third District Court of Appeal affirmed the lower court’s ruling.

The appellate court acknowledged the repair company’s concern that the holding of Commercial Jet, Inc., “will cause the loss of its lien if the property is returned under section 85.011,” but it declined to read the case so broadly. Rather, the court contrasted the circumstances in Commercial Jet, Inc., where the lienor voluntarily relinquished possession before perfection, with the question before it, namely whether a perfected lien lapses when a lienor is required to return the property at the end of the three months provided in §85.011. With regard to that matter, the court noted “the length of time the lien remains valid should not be confused with the length of time that a lienor has the right to possess the property.”[29]

The court also brushed aside as “obiter dicta” language in several other cases to the effect that a lien expires when possession is lost.[30] In doing so, the court avoided conflict with cases holding to the contrary, including longstanding precedent expressly stating that a person asserting a mechanic’s lien does not lose the lien when he or she is forced to surrender possession after three months statutory period.[31]

The Legislature Takes Possession (from the Courts)

In 2019, the Florida Legislature amended F.S. §329.15 to include the following sentence: “The lienor is not required to possess the aircraft to perfect such a lien.”[32] Mercifully, and for all intents and purposes, this brought an end to the challenge of divining whether, when, if, and how Florida’s possessory mechanic’s lien statute under §713.58 operates alongside the state’s aviation-specific statutory framework requiring only notice for purposes of lien perfection. Effective July 1, 2019, the new statute is substantive in nature and so prospectively (as opposed to retroactively) applied.[33]

Aviation law practitioners now have a clearer path toward perfecting an aircraft lien. They need only follow state and federal law regarding the filing and recordation of a verified lien — as Judge Schwartz opined in his dissenting opinion.

Whether the goal of the Florida Legislature was to make it easier for a lienor to recover money owed to him or her without keeping a commercial aircraft out of service and potentially disrupting commercial air travel remains to be seen.[34] What also remains unclear is whether the statutory amendment will encourage owners and operators of an aircraft, where a lien is claimed, to keep using the aircraft while they work to satisfy the lien.[35] The “new” statutory aviation lien regime generates many normative and practical questions, including whether removing the leverage gained through a possessory lien will disincentivize payment up front or promote surprise clouds on airplane title.[36]

Be that as it may, maintenance repair overhaul providers (MROs) and their clients will be best served by avoiding protracted litigation centering on statutory interpretation. In this regard, contract law offers a far more efficient mechanism for resolving billing and related disputes between MROs and their clients. MROs and aircraft owners or operators should agree to a forfeitable deposit or retainer in favor of MROs and immediate release of possession for aircraft owners in the event of a dispute. To do otherwise risks watching assets literally disappear into thin air until the next round of lobbyists convinces the legislature that the courts got it wrong.

[1] Philko Aviation, Inc. v. Shacket, 462 U.S. 406 (1983); see also Creston Aviation, Inc. v. Textron Financial Corp., 900 So. 2d 727, 729 (Fla. 4th DCA 2005); Fla. Stat. §329.01; 49 U.S.C. §§44107 and 44108.

[2] Fla. Stat. §713.58(1).

[3] See Commercial Jet, Inc., 45 So. 3d at 888. The court cited subsection (3) of Fla. Stat. §713.58 for the proposition that a repairman’s right to claim a lien is “extinguished when he relinquishes possession of the property on which the lien is asserted.” Id. But subsection (3) addresses whether a lienor is fraudulently induced to surrender both possession and its lien. Thus, subsection (3) does not dispossess a repairmen, but rather ensures that a person asserting a mechanics’ lien does not lose its lien when it surrenders possession by force or deceit. See, e.g., Assocs. Commercial Corp. v. Ross, 465 So. 2d 663, 664 (Fla. 4th DCA 1985).

[4] Fla. Stat. §85.011(1).

[5] Id.; see also Ocala Foundry & Machine Works v. Lester, 38 So. 51 (1905) (“When possession has been held for a period of three months, the mechanic or laborer has no right under the statute to longer retain the property as against the consent of the debtor.”); Assocs. Commercial Corp. v. Ross, 465 So. 2d 663 (Fla. 4th DCA 1985); Eastern Airlines Emps. Fed. Credit Union v. Lauderdale Yacht Basin, Inc., 334 So. 2d 174 (Fla. 4th DCA 1976).

[6] Fla. Stat. §329.51.

[7] Id.

[8] See Fla. Stat. §92.525.

[9] Section 329.51 speaks in terms of enforceability: “Any claim on an aircraft under s. 329.41 or 2. 713.58 is enforceable when the lienor records a verified notice….” This language contrasts notably with other state aviation laws that seem affirmatively to create lien rights, e.g., Fla. Stat. §329.40(1) (“The governing body of a publicly owned and operated airport has a lien upon all aircraft landing upon any airport owned and operated by it for all fees and charges for the use of the facilities of such airport….”); Fla. Stat. §329.41 (“A person who has furnished fuel to an aircraft has a lien upon the aircraft for any unpaid fuel charges….”).

[10] In re Tradewinds Airlines, Inc., 394 B.R. 614, 617 (Bkrtcy. S. D. Fla. 2008).

[11] Id. at 617.

[12] Id.

[13] Id. at 618.

[14] Id. at 621; see also Fla. Stat. §329.01 (providing that “[n]o instrument which affects the title to or interest in any civil aircraft of the United States…is valid in respect to such aircraft…until such instrument is recorded in the office of the [Federal Aviation Administration]”).

[15] Id.

[16] Id.

[17] Id. at 621.

[18] Commercial Jet, Inc., 45 So. 3d at 887.

[19] Id. The maintenance company sued only U.S. Bank to foreclose its purported mechanic’s lien, however, because the company that sought repairs, Silver Jet, was in bankruptcy dissolution proceedings in England and had reverted the aircraft back to U.S. Bank. See Appellant, Commercial Jet, Inc.’s Reply Brief at *2, Commercial Jet, Inc. v. U.S. Bank, N.A., No. SC10-2438, 2011 WL 3097575 (Fla. July 15, 2011).

[20] Id. at 887-88.

[21] Answer Brief of Respondent U.S. Bank, N.A. at **2-3, Commercial Jet, Inc. v. U.S. Bank, N.A., No. SC10-2438, 2011 WL 3097575 (Fla. July 15, 2011) (hereinafter Answer Brief).

[22] See Commercial Jet, Inc., 45 So. 3d at 888.

[23] Id.

[24] Id. at 889.

[25] Id.

[26] Id.

[27] Commercial Jet, Inc. v. U.S. Bank, N.A., 76 So. 3d 913 (2011); Commercial Jet, Inc. v. U.S. Bank, N.A., 61 So. 3d 410 (Fla. 2011).

[28] See Global Xtreme v. Advanced Aircraft Center, 122 So. 3d 487 (Fla. 3d DCA 2013) (declining to award attorneys’ fees: “Section 329.51 is a notice statute that applies to liens claimed on an aircraft. Neither section 713.58 nor section 329.51 provides for attorney’s fees”); US Acquisition, LLC v. Tabas, Freedman, Soloff, Miller & Brown, P.A., 87 So. 3d 1229, 1232 (Fla. 4th DCA 2012) (finding that a law firm’s charging lien for fees arising from an aircraft replevin action was possessory in nature and unperfected because it was not filed with the FAA); Signia Jets, LLC v. N75GA, et al., Final Judgment Cancelling Aircraft Security Agreement and Claim of Lien and Quieting Title to Aircraft, Case No. CACE 14-017628 (09) (no possession, therefore, no encumbrance against the aircraft).

[29] J.V. Air Maintenance, Inc., 238 So. 3d at 381.

[30] Id. at 382. See notes 6 and 28.

[31] Id. at 381 (citing Ocala Foundry, 38 So. at 51).

[32] Id. at 380 n.2; Fla. Stat. §329.14 also was amended to provide that “possession of the aircraft is not required to perfect” a lien for unpaid fuel charges.

[33] See, e.g., Florida Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So. 3d 187, 195 (Fla. 2011) (“First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.”).

[34] Florida House of Representatives, Staff Analysis, 2019 Reg. Session, H.B. 975 at 4 (2019).

[35] Id.

[36] See Answer Brief, note 21, at *17.


Photo of Timothy M. RavichTimothy M. Ravich is a Florida Bar board certified lawyer who served two terms as chair of The Florida Bar Aviation Law Committee following his service as president of the Miami-Dade County Bar Association (2008-09). Earning his law degree, cum laude, from the University of Miami School of Law and an MBA in aviation planning and policy from Embry-Riddle Aeronautical University, he is the principal of Empennage Consulting LLC, associate professor at the University of Central Florida Department of Legal Studies, and author of Introduction to Aviation Law (West Academic 2020).

This column is submitted on behalf of the Aviation Law Committee, Forrest Owens, editor and chair.