[RPPTL-constructionlaw] "Verification" of Payment Bond

[Joseph G. Thresher]

Owner, contractor , surety, each class of "lienor", and indemnitors  who
make surety whole, each have a stake in the battle over consequences of
different treatments that lien and bond might be given ultimately under the
set of facts for which your opinions are offered. 

For purpose of being able to deliver insured title, the most conservative
approach is to decline title insurance unless the liability for lien is
covered by a separate security given to the title insurer. 

For lienor the most conservative approach is to pursue all alternative
remedies until settlement or judicial final order is entered. The early
cases involving 713.245 show loss of bond or loss of lien rights for
guessing wrong on future judicial interpretation of statute or bond or "pay
if paid" arguments are being made. As long as there is any uncertainty each
contestant has to seek paths for resolution that make safe its ultimate
result.

 

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Thursday, September 29, 2011 1:44 PM
To: CHernicz at herniczlegal.com; 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] "Verification" of Payment Bond

 

It has been my view that the provision allowing liens to be secured by a
713.23 bond given after NOC, or which was in existence but the owner
neglected to reference or attach to the NOC by the filing of a "verified"
713.23(2) Notice of Bond, is a reference to FS 92.525 specifying the manner
for "verification" of documents required or permitted by law, etc.  

 

Basically, I see it as saying that whomever executes that Notice swears
under oath (in the manner at FS 92.525) to the statements in the notice
(i.e., that the lien of the person "noticed" is secured by the attached
bond).  But that obviously is not really the end of the story, unless the
"verifier" happens to be a duly authorized officer or agent of the surety
itself .

 

GTE

 

Gregory T. Elliott

ELLIOTT - BERGER, P. A.

10225 Ulmerton Road, Suite 4A
Largo, Florida   33771

(727) 350-2500  (Phone)

(727) 369-6588  (Fax)

Board Certified Construction Lawyer

 



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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Charles
B. Hernicz, Esq
Sent: Thursday, September 29, 2011 12:32 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] "Verification" of Payment Bond

 

What is the meaning of the following language in FS 713.23(2) concerning a
"Notice of Bond": "The notice shall be verified."  I have not been able to
find any case law.  I interpret it as meaning verified by the surety that
the bond is, indeed, valid an in effect.  A bond was recorded with the NOC,
but the NOC expired before the project was complete, and, in an abundance of
caution, I filed both a Notice of Nonpayment and a claim of lien.  The
owner's attorney signed and recorded a "Notice of Bond" and attached a copy
of the bond that was recorded with the NOC.  Does that satisfy the
"verified" requirement and does this constitute a transfer of the lien to
bond?

 

Chuck

 

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road 
Wellington, FL 33414 
Telephone: (561) 753-7511 
Facsimile: (561) 753-7082 
Chernicz at HerniczLegal.com

 

 

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