[CLC-Discussion] 713.04 Subdivision Improvements

Tue Mar 11 15:26:12 PDT 2014

Thanks Lee,

Agreed but I get the same list, maybe even more accurate, at the beginning with the contract clause.  I have only used 713.065 when the project was in trouble, but it could be a monitoring aid as well.  I understand the lien angle on 713.065 but I am not worried about a lien from the site work prime contractor.  In this case it is the multiple (20+) unpaid lienors that did not give notice.  

So it seems getting the sub list, either via contract or the 713.065, and checking down the payment to the subs is the safest way to monitor payments for subdivision improvements.  

Troy Smith | Shareholder 

Board Certified Construction Lawyer

Rogers Towers, P.A. | 818 A1A N., Suite 208 | Ponte Vedra Beach, Florida 32082

Direct 904.346.5770 | Fax 904.473.1399 | TSmith at rtlaw.com <mailto:TSmith at rtlaw.com>  | www.rtlaw.com <http://www.RTlaw.com> 

From: Weintraub, Lee [mailto:lweintraub at bplegal.com] 
Sent: Tuesday, March 11, 2014 6:17 PM
To: Troy Smith; clc-discussion at lists.flabarrpptl.org
Subject: RE: 713.04 Subdivision Improvements

The owner can request a list of subs and suppliers under 713.165

Lee A. Weintraub
Shareholder
Board Certified in Construction Law
Chair, Public Private Partnerships Practice Group
Vice Chair, Construction Law and Litigation Practice Group

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Troy Smith
Sent: Tuesday, March 11, 2014 6:11 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] 713.04 Subdivision Improvements

Couple questions on subdivision improvement and proper payments.  

As we all know, non-privity subdivision lienors are not required to serve a NTO as a condition precedent to their right to record a valid lien.  The 2nd and 4th DCA were split on whether the proper payments procedures of 713.06 applied to this work.  713.04 was subsequently amended and it is my understanding that this work is now subject to the proper payment provisions.  A non-privity subdivision lienor may choose to serve a NTO and, upon such service, the Owner has an affirmative to duty (under 713.06(3)(c)) to cause said subcontractor giving notice to be paid.  Those are the easy ones.  However, the non-privity subdivision lienor is not required to serve the NTO.  Presumably, if proper payments are otherwise made, and final payment is made in reliance upon a CFA that does not disclose said  lienor, that non-privity subdivision lienor, that has not served a NTO, but which lienor is still within its 90 days to record a lien, is barred if the owner makes final payment in accordance with the CFA prior to the lienor recording its lien.

First, in this scenario, is this non-privity lienor’s lien barred by the owner’s proper payments?  This is clearly true if we are talking NTO’s at the end of a job but a NTO is not required in this situation.  Still if the Owner makes proper payments, it cannot be required to pay more than the contract balance and it can rely on the final CFA unless lienors giving notice are not listed on the affidavit.

Second, does anyone have any recommendations for complying with the proper payment procedures when constructing horizontals.  This owner does not have a super on site to monitor and prepare a list of the active subs.  I can only think of getting a list of the subs (at least the major ones) in advance pursuant to a contractual requirement and checking down the sub list with each payment app.  

Thanks in advance.  Tsmith at rtlaw.com  

Troy Smith | Shareholder 

Board Certified Construction Lawyer

Rogers Towers, P.A. | 818 A1A N., Suite 208 | Ponte Vedra Beach, Florida 32082

Direct 904.346.5770 | Fax 904.473.1399 | TSmith at rtlaw.com <mailto:TSmith at rtlaw.com>  | www.rtlaw.com <http://www.RTlaw.com> 

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