[RPPTL-constructionlaw] [RPPTL - QUESTION:no building permit....[Scanned]

Fri Apr 13 12:44:39 PDT 2012

There is no basis for an equitable lien when the lienor comes to bar with
unclean hands.  Conspiring to violate law and failing to comply with the
requirements of law (permitting) would bar a claim of equitable lien.

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

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of David C.
Agee
Sent: Friday, April 13, 2012 2:51 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL - QUESTION:no building
permit....[Scanned]

I think it is a tough road to follow, but wouldn’t there still be an
equitable lien for services rendered, the waters could get muddied pretty
fast as I’d bet as a practical matter not all the work required a permit.  

David C. Agee, Esquire

REID & AGEE, PLLC

3633 26th Street West

Bradenton, FL 34205

Tel 941.756.8791

Fax 941.755.7311

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Ed
Kinberg
Sent: Thursday, April 12, 2012 2:58 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL - QUESTION:no building
permit....[Scanned]

I agree with your conclusion about Braverman.

I do think trying to enforce a lien under these facts is going to create a
substantial problem and the vast majority of courts would find the agreement
was intended to violate the law (if a permit was required) and will find
that the Court’s cannot be used to enforce an agreement that is illegal.

ed

Ed Kinberg

Fellow, National Contract Management Association

Board Certified, Construction Law Attorney

Government Contract Law, Construction Law, and Business Law

kinberg_jpg_bw

Attorneys At Law

1290 W. Eau Gallie Boulevard

Melbourne, FL   32935

Tel. (321) 259-1910

Fax (321) 259-1996

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons,
Michael
Sent: Thursday, April 12, 2012 2:32 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL - QUESTION:no building
permit....

  Thanks Larry.  I was not aware of the Braverman decision.  However, I
don't think it applies on these facts because the homeowner apparently
contracted with the GC not to obtain a permit. In Braverman, the opposite
occurred: owner's contract with GC expressly required GC to get the
permit.Court relied on the express breach of contract in failing to obtain
permit to hold that contractor had not performed and therefore had not
earned the monies claimed in the lien.  The Braverman decision was grounded
on an express contractual undertaking not apparently present in the facts
presented.

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:  <mailto:michael.gibbons at lowndes-law.com>
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 Larry
Leiby
Sent: Thursday, April 12, 2012 1:58 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL - QUESTION: no building
permit....

See Braverman v. Van Bower, Inc., 558 So.2d 381 (Fla. 3rd DCA 1991).  

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. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC

Member, JAMS Global Engineering and Construction Panel

Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
mromm at rommlaw.com
Sent: Thursday, April 12, 2012 1:40 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL - QUESTION: no building
permit....

Does anybody know the answer to this question:

If general contractor fails to obtain a building permit (at owner's request
because it was a small project at a home and the homeowner did not want to
wait for or pay for the permit) and owner does not pay, can GC file a lien
and foreclose?

I read the following and I am still confused:

§ 553.79.  Permits; applications; issuance; inspections [Effective until
July 1, 2012]

   (1) After the effective date of the Florida Building Code adopted as
herein provided, it shall be unlawful for any person, firm, corporation, or
governmental entity to construct, erect, alter, modify, repair, or demolish
any building within this state without first obtaining a permit therefor
from the appropriate enforcing agency or from such persons as may, by
appropriate resolution or regulation of the authorized state or local
enforcing agency, be delegated authority to issue such permits, upon the
payment of such reasonable fees adopted by the enforcing agency. The
enforcing agency is empowered to revoke any such permit upon a determination
by the agency that the construction, erection, alteration, modification,
repair, or demolition of the building for which the permit was issued is in
violation of, or not in conformity with, the provisions of the Florida
Building Code. Installation, replacement, removal, or metering of any load
management control device is exempt from and shall not be subject to the
permit process and fees otherwise required by this section.

§ 553.84.  Statutory civil action 
   Notwithstanding any other remedies available, any person or party, in an
individual capacity or on behalf of a class of persons or parties, damaged
as a result of a violation of this part or the Florida Building Code, has a
cause of action in any court of competent jurisdiction against the person or
party who committed the violation; however, if the person or party obtains
the required building permits and any local government or public agency with
authority to enforce the Florida Building Code approves the plans, if the
construction project passes all required inspections under the code, and if
there is no personal injury or damage to property other than the property
that is the subject of the permits, plans, and inspections, this section
does not apply unless the person or party knew or should have known that the
violation existed.

and Comptech v. Milam Commerce:  711 So.2d 1255 (Fla. 3rd DCA, 1998) which
says no statutory cause of action for violating 553.79 under 553.84 because
it is barred by economic loss if construction done under a contract....

Help?

Michael Romm

Michael R. Romm, P.A.

1213 S. 30th Avenue, Suite 2, Hollywood, FL 33020

Phone: (954) 557-8002

Fax:  (954) 208-0022

 <mailto:mromm at rommlaw.com> mromm at rommlaw.com

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-------- Original Message --------
Subject: Re: [RPPTL-constructionlaw] ABA - Construction Law Forum
From: "Michael Kamprath" < <mailto:Michael.Kamprath at thresherpa.com>
Michael.Kamprath at thresherpa.com>
Date: Thu, April 12, 2012 11:55 am
To: "'RPPTL constructionlaw'" <
<mailto:constructionlaw at lists.flabarrpptl.org>
constructionlaw at lists.flabarrpptl.org>

For all the members who wish to get active in the ABA Forum on the
Construction Industry, I would encourage you, if you are not already, to
join the ABA.  Membership is currently free through August 31 along with
membership in one Section or Forum.  You can do this by going to this site:
<http://joinaba.org/200916738> http://joinaba.org/200916738 Or by calling
1-800-285-2221 and mention promotion code RMM11MRRC.  Once you join the
Section or Forum, you will have the opportunity to join a Division or
Committee.

Michael T. Kamprath

Board Certified in Construction Law

Thresher & Thresher, P.A.

400 North Tampa Street,

Suite 1320

Tampa, Florida 33602

Phone: 813 229 7744

Facsimile: 813 228 0367

From:  <mailto:constructionlaw-bounces at lists.flabarrpptl.org>
constructionlaw-bounces at lists.flabarrpptl.org [
<mailto:constructionlaw-bounces at lists.flabarrpptl.org>
mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Charles
Kramer
Sent: Tuesday, April 10, 2012 10:43 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] ABA - Construction Law Forum

Division 5. Contract Negotiations, Performance and Admin.

Highest regards, 

cid:image0066952.jpg

CONFIDENTIALITY: This electronic message transmission contains information
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From:  <mailto:constructionlaw-bounces at lists.flabarrpptl.org>
constructionlaw-bounces at lists.flabarrpptl.org [
<mailto:constructionlaw-bounces at lists.flabarrpptl.org>
mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
<mailto:fred.dudley at hklaw.com> fred.dudley at hklaw.com
Sent: Tuesday, April 10, 2012 8:45 AM
To:  <mailto:constructionlaw at lists.flabarrpptl.org>
constructionlaw at lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] ABA - Construction Law Forum

As I requested during yesterday meeting, attached from Cary Wright is a list
of the 12 divisions of the Forum, which also reflects the members of each
division’s Steering Committee. Can you find the one Arnie serves on?       

It’s amazing the number of Florida attorneys (and our CLC members) who are
active in this Forum, but with George Myer as chair, we should get MORE
active.

How about picking one you like and letting us know??

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