[CLC-Discussion] FW: Question about Terminating a Notice of Commencement

[Ed Kinberg]

Notice of Recommencement is part of the proper procedure but the client needs to comply with 713.06(3)(c)5 which requires compliance with the following paragraph, (d) 1 in the statute.




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Ed Kinberg, Attorney at Law
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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Fred Dudley
Sent: Wednesday, August 17, 2016 4:11 PM
To: leslie.tomczak at akerman.com; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] FW: Question about Terminating a Notice of Commencement

I believe the proper procedure in such cases, is to file a Notice of Re-Commencement naming the new contractor, in order to also preserve the owner’s “proper payment” defense.

Fred R. Dudley, Managing Member
Board Certified Construction Lawyer
Dudley, Sellers, Healy & Heath, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com<mailto:dudley at mylicenselaw.com>


From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of leslie.tomczak at akerman.com<mailto:leslie.tomczak at akerman.com>
Sent: Wednesday, August 17, 2016 3:51 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] FW: Question about Terminating a Notice of Commencement

Sec. 713.132(3), Fla. Stat. says that an owner cannot record a Notice of Termination of Notice of Commencement “except after completion of construction, or after construction ceases before completion and all lienors have been paid in full or pro rata in accordance with § 713.06<http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=713.06&URL=0700-0799/0713/Sections/0713.06.html>(4).”  What happens if the Owner has to terminate the GC for default (defective work, work performed without a license, etc.), does not plan to pay for the defective work and, therefore, cannot represent in a Notice of Termination that "all lienors have been paid"?  We expect that there is not going to be an amicable "break-up" here and Owner needs to hire a new GC to finish/fix the Work and will need to file a new NOC for that work.  What should Owner do re: the old NOC?
I know that this happens all the time…….  any insight?  Thx in advance!

Leslie Miller Tomczak, LEED AP
Board Certified by The Florida Bar in Construction Law
Akerman LLP | Las Olas Centre II, Suite 1600 | 350 East Las Olas Boulevard | Fort Lauderdale, FL 33301-2999
Dir: 954.759.8926 | Main: 954.463.2700 | Fax: 954.463.2224
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