[CLC-Discussion] Paid If Paid Incorporated By Reference From Subcontract To 713.23 Statutory Payment Bond

[Jeff Price]

OMG. Who cares what is in the subcontract? What's the worst that could happen?  You send a NNP and lien the job and they say you were wrong. Say the court agrees. So what? But. If you don't fill the Lien or a NNP, and the contract provisions are bullshit, isn't that malpractice?



Sent via so-called "smartphone" so please excuse the typos and auto correct mistakes.


-------- Original message --------
From: Robert Worman <rworman at wormanlaw.com>
Date: 07/06/2015 6:09 PM (GMT-05:00)
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Paid If Paid Incorporated By Reference From Subcontract To 713.23 Statutory Payment Bond

I have recently reviewed several large project subcontracts for clients where the contractor is incorporating by reference in the subcontract the risk shifting “paid if paid” condition precedent to also be a condition precedent in the contractor’s Payment Bond.

Am I missing a case out there that allows a 713.23 bond to enjoy this condition precedent and still allow for the property’s exemption from construction liens?  Isn’t that the whole reason behind 713.245 payment bonds?

Am I wrong to think that if the contractor tries to make its 713.23 bond conditioned upon payment by the owner, and it is not otherwise designated as a Conditional Payment Bond with 713.245 referenced in the bond, then either (a) the condition precedent would be void, such that the property would be exempt from construction liens, or (b) the bond would be a common law bond, no lien exemption would be enforced, and the owner’s interest in the property would be subject to construction liens?

Anyone’s thoughts on this would be appreciated and should be sent directly to me unless you feel it is an issue worthy of all hearing your comments.

Regards,

Robert B. Worman
Worman & Sheffler, P.A.
2707 West Fairbanks Avenue
Suite 200
Winter Park, FL 32789
407 843-5353
rworman at wormanlaw.com<mailto:rworman at wormanlaw.com>
NOTICE:
THIS E-MAIL MESSAGE AND ANY ATTACHMENT TO THIS E-MAIL MESSAGE CONTAINS CONFIDENTIAL INFORMATION THAT MAY BE LEGALLY PRIVILEGED.  IF YOU ARE NOT THE INTENDED RECIPIENT, YOU MUST NOT REVIEW, RETRANSMIT, CONVERT TO HARD COPY, COPY, USE OR DISSEMINATE THIS E-MAIL OR ANY ATTACHMENT TO IT. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY RETURN E-MAIL OR BY TELEPHONE AT 407-843-5353 AND DELETE THIS MESSAGE.  PLEASE NOTE THAT IF THIS E-MAIL MESSAGE CONTAINS A FORWARDED MESSAGE OR IS A REPLY TO A PRIOR MESSAGE, SOME OR ALL OF THE CONTENTS OF THIS MESSAGE OR ANY ATTACHMENTS MAY NOT HAVE BEEN PRODUCED BY WORMAN & SHEFFLER, P.A.
TAX ADVICE DISCLOSURE:  TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS UNDER CIRCULAR 230, WE INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS), UNLESS OTHERWISE SPECIFICALLY STATED, WAS NOT INTENDED TO BE USED, AND CANNOT BE USED, FOR THE PURPOSES OF (1) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN.
PLEASE BE ADVISED THIS LAW FIRM MAY BE ACTING AS A DEBT COLLECTOR AND IS ATTEMPTING TO COLLECT A DEBT.  ANY INFORMATION PROVIDED WILL BE USED FOR THAT PURPOSE.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20150706/ee2fdd56/attachment.html>