[CLC-Discussion] FW: NTO Timing - A133 Precon Services

[RPPTL CLC-Discussion]

Interesting question.  IMO, a contractor (as opposed to an A/E) during the design phase performing precon services under an A133 (e.g.., VE design reviews, constructability reviews, and pricing exercises) is not performing a  lienable service as a contractor since it is not building any permanent improvement on Owner’s property.  Assuming no early release or early start permit outside of the GMP Amendment, I agree that the GMP Amendment would function as the stand in for the normal A101 or A102 construction contract and actual  construction phase services would flow from the execution of that document.  As far as serving the NTO, many contractors improving leasehold space do not serve the NTO and operate on the belief that, in the absence of a 713.10 recorded instrument, they enjoy lien rights against the fee simple interest.  I would be interested if anyone has any caselaw on the subject of whether a contractor must serve a NTO on a  fee owner in order to enjoy lien rights against the fee simple interest in instances where the GC/CM has a contract with the tenant but not the fee owner and no 713.10 instrument has been recorded (and improvements are the “pith” of the lease).  It’s been years since I last reviewed pith of the lease caselaw and I don’t remember seeing discussions of the GC having to serve a NTO on the fee owner in order to have lien rights (where improvements are the pith of the lease and no 713.10 instrument recorded).

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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Friday, October 9, 2020 12:32 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] FW: NTO Timing - A133 Precon Services

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I have a contractor client that has signed an AIA-A133 for a project in Central Florida. The contractor’s client is the lessee of a long term ground lease upon which the project will be constructed.  The ground lease has no prohibition on liens and requires construction of the project.  Precon work has commenced under the A133.  The GMP Amendment (indicating commencement of the construction phase) has not been prepared or signed. To preserve its lien rights against the fee simple interest of the Landlord, does the contractor need to serve a NTO on the Landlord within 45 days of commencing precon work or can that wait until the construction phase commences with the execution of the GMP Amendment.

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