[RPPTL-constructionlaw] [RPPTL- QUESTION:no building permit....[Scanned]
David C. Agee
dagee at reidagee.com
Fri Apr 13 13:45:27 PDT 2012
Unclean hands are an affirmative defense, which would hinge on whether the labor in question required a permit, not necessarily a complete bar to recover depending on the circumstance. Additionally, would materialmen and other subs unaware of the permitting issues have a claim under those facts?
David C. Agee, Esquire
REID & AGEE, PLLC
3633 26th Street West
Bradenton, FL 34205
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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 Charles B. Hernicz, Esq
Sent: Friday, April 13, 2012 3:45 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL- QUESTION:no building permit....[Scanned]
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
*************Ask us about Real Estate and Estate Planning************************
The information transmitted in this email, including any attachments, is from Reid & Agee, PLLC and is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This electronic information is intended only for the person(s) or entity/entities to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient(s) is strictly prohibited. If you received this in error, please contact the sender via telephone at (941) 756-8791 or reply email and delete the email and any attachments from any computer. Thank You.
IRS Circular 230 Disclosure: To the extent that this message or any attachment concerns tax matters, it is not intended to be used as or intended to constitute a "reliance opinion" under applicable Treasury Regulations, and accordingly this message or any attachment is not intended or written to be used, and may not be used or relied upon, for the purpose of (i) avoiding tax-related penalties that may be imposed by the Internal Revenue Service, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. Please be assured that this policy does not reflect any decrease in the quality of services or the amount of thought that we put in our correspondence.
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
Attorneys At Law
1290 W. Eau Gallie Boulevard
Melbourne, FL 32935
Tel. (321) 259-1910
Fax (321) 259-1996
www.kblegal.com <http://www.kblegal.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: 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: 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 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
mromm at rommlaw.com <mailto:mromm at rommlaw.com>
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-------- Original Message --------
Subject: Re: [RPPTL-constructionlaw] ABA - Construction Law Forum
From: "Michael Kamprath" <Michael.Kamprath at thresherpa.com <mailto:Michael.Kamprath at thresherpa.com> >
Date: Thu, April 12, 2012 11:55 am
To: "'RPPTL constructionlaw'" <constructionlaw at lists.flabarrpptl.org <mailto: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: constructionlaw-bounces at lists.flabarrpptl.org <mailto: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,
CONFIDENTIALITY: This electronic message transmission contains information from the law firm Rogers, Morris & Ziegler LLP that is considered confidential or privileged. The information is intended solely for the recipient and use by any other party is not authorized. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this electronic transmission in error, please notify me immediately by telephone (954-462-1431).
From: constructionlaw-bounces at lists.flabarrpptl.org <mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org <mailto:constructionlaw-bounces at lists.flabarrpptl.org> ] On Behalf Of fred.dudley at hklaw.com <mailto:fred.dudley at hklaw.com>
Sent: Tuesday, April 10, 2012 8:45 AM
To: constructionlaw at lists.flabarrpptl.org <mailto: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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