[CLC-Discussion] Can a construction lender bond off aconstruction lien?
Greg Elliott
gelliott at elliott-berger.com
Wed Feb 6 09:33:18 PST 2013
By the way (and I presume someone has already mentioned this in speaking
to the original question) . . 713.24 does not only allow persons with
"an interest in the property" to bond a lien of", but also persons with
an interest "in the contract". What constitutes an "interest" in a
particular construction contact is not defined.
GTE
Gregory T. Elliott
ELLIOTT - BERGER, P. A.
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------ Original Message ------
From: "Reese J. Henderson, Jr." <Reese.Henderson at gray-robinson.com>
To: "Larry Leiby" <Leiby at mkpalaw.com>; "'Roberts, Hardy L.'"
<hroberts at carltonfields.com>; "'Construction Law Discussion'"
<clc-discussion at lists.flabarrpptl.org>
Sent: 2/6/2013 11:45:46 AM
Subject: Re: [CLC-Discussion] Can a construction lender bond off
aconstruction lien?
>“is the lien still there along with the bond . . .” – interesting
>point, Larry. If the lender attempts to transfer the lien through a
>713.24 lien transfer bond, then by your argument the lienor would still
>have its lien claim AND now have a claim against that bond, which,
>because it does not comply with 713.24, is instead a common law bond
>which is additional – and not substitute – security for the lien.
>
>
>
>
>Reese J. Henderson, Jr.
>Board Certified Construction Attorney
>GrayRobinson, P.A.
>50 North Laura Street, Suite 1100
>Jacksonville, Florida 32202
>Main: 904-598-9929 | Fax: 904-598-9109
>Email: Reese.Henderson at gray-robinson.com
>GRAY | ROBINSON
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>From:clc-discussion-bounces at lists.flabarrpptl.org
>[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
>Larry Leiby
>Sent: Wednesday, February 06, 2013 11:27 AM
>To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
>Subject: Re: [CLC-Discussion] Can a construction lender bond off
>aconstruction lien?
>
>
>
>I agree with those who noted that a lender does not have an interest in
>property, instead it has a mortgage lien, and thus is not covered under
>713.24. However that is the tip of the iceberg and begs the question.
>
>
>
>The concern that I have experienced is where the lender seeks to
>transfer the lien to bond but the bond form is not conditioned only on
>proving the lien claim it is also conditioned on proving priority.
>That is not what 713.24 is about, and the clerks aren’t real students
>of 713.24 as they have many duties. If that happens the lienor should
>challenge any certificate of transfer.
>
>
>
>So a lender is a little nuts wanting to transfer a lien under 713.24
>without added language (which would not meet the requirements of
>713.24), because then the lienor need only prove its lien claim and the
>condition of the bond is performed where the principal and surety on
>the bond are on the hook (assuming they didn’t sneak in any added
>language to the 713.24 bond form). The lender loses its argument about
>the lien not having equity and being inferior to the mortgage by
>bonding it off and taking the property equity out of the equation. The
>lienor should be ecstatic about not being worried about the lender’s
>priority any more, but must watch carefully the language in the bond.
>If the lender is looking to clear title for some reason of its own, it
>should not be the principal on the bond – only someone with an
>interest. If the lender gets cute and adds language to the bond, we
>have some new issues to address, which I believe are not yet resolved.
>
>
>
>Thus if the lender uses a 713.24 bond to transfer it off, the question
>is: Is the lien really transferred off, or is the lien still there
>along with the bond because the lender cannot meet the requirements of
>713.24 by not having an interest in the property?
>
>
>
>
>
>Larry R. Leiby, Esq.
>
>Malka & Kravitz, P.A.
>
>1300 Sawgrass Corp. Pkwy., Suite 100
>
>Ft. Lauderdale, FL 33323
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>Phone: 954-514-0984
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>Fax: 954-514-0985 e-mail: leiby at mkpalaw.com
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>
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>Member, Leiby Alexander Brandt ADR Group, LLC
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>From:clc-discussion-bounces at lists.flabarrpptl.org[mailto:clc-discussion-bounces at lists.flabarrpptl.org]On
>Behalf Of John Campo
>Sent: Tuesday, February 05, 2013 2:41 PM
>To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael';
>'Roberts, Hardy L.'; 'Construction Law Discussion'
>Subject: Re: [CLC-Discussion] Can a construction lender bond off
>aconstruction lien?
>
>
>
>As a practical matter, I would welcome a Lien Transfer Bond knowing
>that a pile of money is readily available for the taking should my
>client prevail on its lien.
>
>
>
>John D. Campo, Esq.
>Florida Bar Board Certified - Construction Law
>john at npw-law.com
>
>
>
>Niesen|Price|Worthy|Campo|Blakey, PA
>5216 SW 91st Drive Gainesville, FL 32608
>Ph (352) 373-9031 Fax (352) 373-9099
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>http://npw-law.com
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>From:clc-discussion-bounces at lists.flabarrpptl.org[mailto:clc-discussion-bounces at lists.flabarrpptl.org]On
>Behalf Of Matthew Belcastro
>Sent: Tuesday, February 05, 2013 2:16 PM
>To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.;
>Construction Law Discussion
>Subject: Re: [CLC-Discussion] Can a construction lender bond off
>aconstruction lien?
>
>
>
>I'm not sure I understand why the construction lender wants to bond off
>the lien? Are they trying to convert to permanent financing and unable
>as a result of the construction lien?
>
>
>
>
>Matthew Belcastro
>Attorney at Law
>Henderson, Franklin, Starnes & Holt, P.A.
>1715 Monroe Street
>P.O. Box 280
>Fort Myers, FL 33902
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>>
>>
>>-----Original Message-----
>>From:clc-discussion-bounces at lists.flabarrpptl.org
>>[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
>>Raymond L. Robinson
>>Sent: Tuesday, February 05, 2013 2:02 PM
>>To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
>>Subject: Re: [CLC-Discussion] Can a construction lender bond off
>>aconstruction lien?
>>
>>One could make the argument that Florida is considered a “lien” state
>>and case law has held that a mortgage is not a transfer of “interest”
>>in real property and therefore does not need two subscribing
>>witnesses. Good question though. Let me know if you find the answer.
>>
>>
>>
>>
>>
>> Raymond L. Robinson, Esq.
>>
>> Office: (305) 662-7618
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>> Cell: (305) 632-4384
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>> http://www.rrobinsonlaw.com/
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>>From:clc-discussion-bounces at lists.flabarrpptl.org
>>[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
>>Gibbons, Michael
>>Sent: Tuesday, February 05, 2013 12:19 PM
>>To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
>>Subject: Re: [CLC-Discussion] Can a construction lender bond off a
>>construction lien?
>>
>>
>>
>>
>>
>>Yes. The lender has “an interest” via its mortgage in the real
>>property on which the lien is imposed.
>>
>>
>>
>>Michael R. Gibbons (Bio)
>>
>>Shareholder
>>
>>Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
>>
>>215 N. Eola Drive
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>>Orlando, FL 32801
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>>website: http://www.lowndes-law.com
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>>
>>
>>
>>
>>
>>
>>From:clc-discussion-bounces at lists.flabarrpptl.org
>>[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
>>Roberts, Hardy L.
>>Sent: Tuesday, February 05, 2013 11:55 AM
>>To: 'Construction Law Discussion'
>>Subject: [CLC-Discussion] Can a construction lender bond off a
>>construction lien?
>>
>>
>>
>>Anyone have any thoughts on this?
>>
>>
>>
>>
>>Hardy L. Roberts
>>Attorney at Law / Board Certified in Construction Law by the Florida
>>Bar
>>4221 W. Boy Scout Blvd., Ste. 1000
>>Tampa, Florida 33607-5780
>>Direct: 813.229.4105 | Fax: 813.229.4133
>>
>>hroberts at carltonfields.com | http://www.carltonfields.com/
>>bio | vcard
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