[CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

[Justin Zinzow]

Dear subcommittee:  I have a question I would appreciate your input on.  Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

My instinct was immediately "of course."  However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property."  A leasehold interest is an equitable interest in real property.

So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)?


Justin R. Zinzow
Board Certified Construction Specialist
AV Preeminent(r) Rated Attorney

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Bio<http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/> | Website<http://www.zinzowlaw.com/> | Email<mailto:%20jzinzow at zinzowlaw.com>

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