[RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Mon Feb 6 12:03:50 PST 2012

There's also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!

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<mailto:fred.dudley at hklaw.com> | www.hklaw.com<http://www.hklaw.com/>
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Why not enforce your bond remedy?
Note the first sentence of 255.05(1)(a); the recent amendments creating existing language requires private party to obtain bond(s) for work that private party contracts for as improvement to public property or a Public Work .  To understand better the meaning of the amendment, do research on use of "public work"; that wording is not limited to " public property" or there would be no disjunctive "or". A very early case used "public work"  as private property of a railroad that would serve the public; that case did not deal with lien or bond, but it illustrates how general "public work" means in current version of statute.   A more interesting issue is defining the remedy for non-compliance against the public body or the private party that failed to obtain bonds. In some past cases the commissioners or council members were liable to person or entity that by law had right to rely upon existence of the required bonds. Who was advising the public body; the private party. Does the license or lease have an indemnity clause in favor of public entity?  Have fun.
         JG Thresher
813-229-7744

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of fred.dudley at hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Can you send a copy of the Order on your motion for SJ?

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<mailto:fred.dudley at hklaw.com> | www.hklaw.com<http://www.hklaw.com/>
________________________________________________
Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley>
From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property.  Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease.  The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction.  The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable.  We moved for and were granted summary judgment in our favor on that issue.  Attached is the motion/brief, which is a matter of public record and may be helpful.  Presumably much of the law has changed/evolved over the past 14 or so years.

Bryan Capps

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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there).  The statutory reason that you can't lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01.  The definition of real property also excludes governmentally owned property.  This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.

An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property.  Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property.  You want to be careful when you prepare the lien to only seek it against the leasehold.  Also a lien on a leasehold is typically only as valuable as the tenant is collectable.

Go get em.

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<mailto: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> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw at lists.flabarrpptl.org<mailto:constructionlaw at lists.flabarrpptl.org>
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on public land

Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)?  The lessee contracted for the improvements which were required by the lease agreement.  The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: "However, there may be private leasehold interests on governmental property that are lienable."   I have found no other authority.

Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez at mcper.com<mailto:rperez at mcper.com>

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