[RPPTL-constructionlaw] "Verification" of Payment Bond

[Larry Leiby]

Chuck,

I agree that the person recording the bond [contractor or any person having an interest in the property per 713.23(2)] is the one that should do the verification of the notice of bond pursuant to 92.525.  It is not the surety.  You can certainly contest whether the lawyer who signed (and verified?) the notice of bond is in the class of persons who are authorized to prepare, or thus verify, a notice of bond, unless the attorney is designated agent for the contractor or person with property ownership interest.  As Mr. Elliott points out if the person who records the bond records a problematic bond (problematic so that the surety argues that the bond is not proper) that is another set of issues.

If the notice of bond does not comport with 713.23(2) arguably it does not clear the lien.  I would want to flush that out with the surety (and lawyer who recorded the notice) quickly, or file a motion/action with the court, to declare that the notice and bond complies with 713.23(2) before you get a later argument about BFP's or acquiescence (whether or not such arguments would be successful).  Of course if the bond complies with 713.23, and the claim is covered under the bond (under the contract with contractor/principal), then the property is exempt from the lien anyway.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985

e-mail:  leiby at mkpalaw.com

Board Certified in Construction Law
Fla. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators


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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