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

[Laurie Sams]

Justin,

My understanding is that the lien will only attached to whatever interest
the owner has (when I say owner I mean the person with whom the contractor
has privity or that received the NTO).  So if it is with a tenant, the lien
only attaches to the leasehold interest absent a separate NTO to the owner.

 

Laurie B. Sams

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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Justin
Zinzow
Sent: Friday, June 15, 2018 2:14 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner
required when the contractor is in privity with the lessee?

 

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 PreeminentR Rated Attorney

 

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Email



Construction | Real Estate | Appellate | Business

 

 

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