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

[Davis Balz]

Attached is an old but potentially helpful Fla. Bar Journal article that touches on some of these issues.

Davis D. Balz | 1501 San Marco Blvd., Jacksonville, FL 32207 | main: 904.598.9282 | dbalz at murphyandersonlaw.com<mailto:dbalz at murphyandersonlaw.com> | www.murphyandersonlaw.com<http://www.murphyandersonlaw.com/>

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Andrew Feldman
Sent: Friday, June 15, 2018 2:42 PM
To: Justin Zinzow <JZinzow at Zinzowlaw.com>; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

Justin,

Take a look at Budget Elec. Co. v. Strauss, 417 So. 2d 1143, 1145 (Fla. 5th DCA 1982).  I haven't run it to ground in terms of, for example, statutory language comparison from then to now or cases that may discuss it, but it should give you a starting point:

"Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648 (1947). That case held only that where a lease expressly required the lessee to make improvements, the lessee is deemed the owner's agent, the contractor dealing with the lessee may be construed to be in privity with the owner, and no notice to owner is required. Where, as here, the contract neither expressly nor impliedly required the lessee to make improvements, no such privity can be implied and the notice to owner is required. Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942)."
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <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<mailto: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
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