[RPPTL-constructionlaw] 255 bond requirement.

Mon Feb 6 12:32:31 PST 2012

This isn't what you were emailing about, but it is related. I know of
cases where County Boards were held personally liable for failure to
require construction bonds, but could use additional case law. Do you
remember the name of the county commission case? Also, do you know of
any case law that discusses a public entity "slicing and dicing" a
contract into separate projects in order to bypass the bond requirement?

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye at solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

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From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
fred.dudley at hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lienfor private leasehold
onpublic land

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
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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>  | 
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From: 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

________________________________

From: 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

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
Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: 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

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