[RPPTL-constructionlaw] Lien Law Legislative Proposal

Mon Jul 11 10:12:05 PDT 2011

I have to say, I also agree with Michael's concerns.  Although I think
the SOL issue can be fixed by deleting the reference to the GC's last
day of work in 95.11, the change to 85.021 is more problematic.  I never
really understood that statute and when Larry Leiby told me about his
interpretation that it could create liability from an owner to a
non-privity sub, I still didn't see it.  However, after reading
Michael's comments, I'm concerned about making this statute clearer,
with the end result being a more certain liability from an owner to a
non-privity sub outside the scope of the Lien Law.  I'm going to have to
look at this harder and, if I remain uncomfortable, I'll have to contest
this at the upcoming RPPTL executive council meeting.

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Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax 

LWeintraub at becker-poliakoff.com 
http://www.becker-poliakoff.com

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________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, July 11, 2011 1:01 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Lien Law Legislative Proposal

    I could not make the call today but write to express my views on the
proposed legislative changes.  The proposed changes to Ch. 85 (dealing
with Owner's exposure to personal judgments on claims brought by
non-privity claimants) and Ch. 95 (dropping the one year SOL for all
bonds) are problematic for following reasons:

    1.  Fla. Stat. s. 85.021---    This unintelligible legislation
admittedly cries out to be rewritten.  Issue is making the Owner liable
personally to non-privity lienors foreclosing their construction liens.
I realize that there is a 1917 case and a 1969 case that arguably
supports holding an Owner personally liable for claims of non-privity
lienors.  As construction law is practiced today, however, at least in
my universe, the Owner is only personally liable to lienor claimants who
enjoy a direct contractual relationship with owner.  So, for example,
when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat.
s. 713.24, the Owner is no longer a proper party to the action.  Owners
should not bear personal liability for construction debts owed to
subcontractors.  I believe having an in rem remedy along with a
contractual remedy against the contracting party (other than Owner) is
adequate for the protection of lower tier subs and suppliers.  I would
recommend that the statute be clarified, consistent with practice today,
that the Owner not be subject to personal liability when a non-privity
lienor is foreclosing its lien.  Owner, under certain circumstances,
should continue to be liable to non-privity claimants for unjust
enrichment.

    2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an
inconsistency among the SOL's as noted, the prescribed "cure"  will
prove far more harmful than the existing shortcoming (which boils down
to measuring the one year SOL period from the date of sub's last date of
furnishing vs. GC's last date of furnishing).  The proposed change will
lead us right back to the bad old days when bond claims were dominated
by arguments about whether the bond was a "statutory bond" or a "common
law bond".  The provision sought to be deleted at s. 95.11 (2) (e) was
actually passed to eliminate all the uncertainty and expense associated
with litigating that issue which generated great confusion in the trial
courts.   The beauty of the existing language is that it doesn't matter
whether the bond is "statutory" or "common law"-- the one year period
applies.  Now we are going to replace that clarity with the ambiguous
proposed language which introduces the same fog that generated the years
of unproductive and wasteful litigation on common law vs. statutory
bonds.  If you want to make the SOL's all consistent, it is easy to do
without injecting all the uncertainty and ambiguity the proposed
legislation offers.  

Michael R. Gibbons  (Bio
<http://lowndes-law.com/our-people/michael-r-gibbons> )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com
<mailto:michael.gibbons at lowndes-law.com> 
website: http://www.lowndes-law.com <http://www.lowndes-law.com/> 

________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, July 11, 2011 11:24 AM
To: constructionlaw at lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal
Importance: High

Folks,

In connection with today's call, please find attached the legislative
committee's proposal for which we are seeking approval to forward to the
Executive Council for further action and, hopefully, submission during
the 2012 legislative session.  Attached are:

1.       Legislative Position Request Form

2.       Proposal

3.       White Paper

The long and short is that we are seeking to clarify certain provisions
of the lien law to eliminate contradictory references, clarify the
statute of limitations on actions on payment bonds, tweak the statutory
claim of lien form; tweak the statutory notice of commencement form and
clean up the section dealing with electronic proof of delivery.  I will
be on the call to answer any questions.

Thanks,

Reese

Reese J. Henderson, Jr.

Board Certified Construction Attorney 

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson at atritt.com <mailto:%5Be-mail%5D> 
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[v4.30]

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unless we expressly state otherwise in writing, such tax advice is not
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Each taxpayer should seek advice from an independent tax advisor with
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