[CLC-Discussion] Question CM lien rights

Wed Nov 15 12:05:20 PST 2017

More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar           
Hernicz Legal Services, P.L.
1460 Wood Row Way 
Wellington, FL 33414 
Telephone: (561) 753-7511 
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Chernicz at HerniczLegal.com

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion at lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights

Interesting question, Adam.  I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489).  I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.

(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103 <http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html> (16).

14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.

A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess.  If you ask does  an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.

Michael R. Gibbons  (Bio)

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 N. Eola Drive

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email: michael.gibbons at lowndes-law.com

website: http://www.lowndes-law.com

cid:image003.jpg at 01D278BA.70183310

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion at lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb at floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights

Does a GC working directly for an Owner under a CM Agency Contract have lien rights?  The type of services being provided generally include preconstruction, project management, coordination, etc.  The CM is not subbing any work directly.  Thanks for any feedback.  Adam

Adam C. Linkhorst, Esq.

Linkhorst & Hockin, P.A.

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