[RPPTL-constructionlaw] (no subject)

Tue Sep 27 11:44:31 PDT 2011

  Under most every Owner-Contractor Agreement I can recall reviewing,
the GC is an independent contractor and is expressly not the Owner's
agent.  I agree that to have any chance of satisfying the statutory
requirement at issue here, there would need to be a separate agency
agreement limited solely to the issuance of the Notice of Contest of
Lien.  Given the time lapse doubtlessly present in Stephen's case, best
thing to do is (assuming a cooperative Owner) have the Owner sign an
Agency Agreement with subcontractor that actually bonded off lien and
issued Notice of Contest.  The Agency Agreement would need to be
executed "nunc pro tunc" and essentially constitute a ratification of
the prior action.  Hardly clean but it is construction law... 

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
website: http://www.lowndes-law.com

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Tuesday, September 27, 2011 2:30 PM
To: CHernicz at herniczlegal.com; RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] (no subject)

I think this still creates a litigation issue.  Did the owner really
have the right to control the contractor's activities sufficient to
create an agency?  Many times, when a lower tier lienor liens, the owner
and contractor are of the same mind to get rid of the lien, so it's
simple to just draft the notice of contest for the owner's signature.
Once the owner understands what's being done and the contractor agrees
to defend whatever suit may come of it, the owner will just sign.  This
is even more likely in the request for sworn statement procedure, which
lacks the downside of an imminent lawsuit. 

Go to http://www.floridaconstructionlawauthority.com/ to subscribe to
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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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-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Charles B. Hernicz, Esq
Sent: Tuesday, September 27, 2011 2:24 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] (no subject)

I have "negotiated" this in the past by having my contractor client
approach
the owner's rep and obtain authority for me to issue the Notice of
Contest,
or a Request for Sworn Statement of Account, as the owner's "agent."
The
owner's rep sends me an email authorizing me to act as the owner's agent
for
this sole purpose, giving me authority to issue the Notice/Request and
validly state it is in my capacity as owner's agent.

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

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Langfred
White
Sent: Tuesday, September 27, 2011 1:46 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] (no subject)

My interpretation of the question is along the lines of "Can a general
contractor record a Notice of Contest against a lien filed by a
subcontractor?"  The statute reads "An owner or the owner's agent or
attorney..." so the literal words suggest the general contractor could
not,
unless the owner authorized the GC to do so as the owner's agent.
Unfortunately, I don't have any "killer cases" on that question in my
research files. 

Regards,
Lan White

Langfred W. White, Esq.
Board Certified in Construction Law

The Law Offices of Langfred W. White, PA
25400 US Highway 19 North
Suite 160
Clearwater, FL 33763
Phone: (727) 797-5599
Fax: (727) 797-5695
email: lan at lwwhiteattorney.com
Cell: (727) 422-5064

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
fred.dudley at hklaw.com
Sent: Tuesday, September 27, 2011 1:28 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] (no subject)

Why wouldn't it just be the owner of record?

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301 Phone
850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley at hklaw.com |
www.hklaw.com

-----Original Message-----
From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
Steve
Thompson
Sent: Tuesday, September 27, 2011 11:09 AM
To: constructionlaw at lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] (no subject)

Can anyone share any research they may have related to who, in the chain
of
privity, may act as an owner's agent for service of a Notice Of Contest
Of
Lien pursuant to Fl. Stat. 713.22?

Steven F. Thompson, Esq.
Thompson & Brooks
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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