[RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
Greg Elliott
gelliott at elliott-berger.com
Tue Feb 7 06:03:56 PST 2012
Hmm. Always viewed language added in 255.05(9) as, more or less, a
codification of Miorelli v Brevard and not so much directed to public
entity liability under Palm Beach v. Trinity, etc. Seems the S Ct
indirectly recognized as such in FDEP v. ContractPoint, 986/1260.
Anyway, have had to resort to Palm Beach/Trinity type actions on several
occasions in the recent past, alleging a cause against the public entity
for failure to comply with the "ministerial duties" imposed on it by
statute (to see that a compliant bond is recorded prior to
commencement). A few times I have brought them in cases where a bond
was apparently obtained by the prime but never recorded (prejudicing the
sub-subs & materialmen in getting notices to the proper parties). In my
view liability for the surety (and principal if solvent) was pretty
straightforward when Martin Paving "no recording/no reliance on notice
defenses" prevailed (overlooking common law bond rationale). Now that
liability on the 255.05 Bond count apparently turns on whether the
claimant was "prejudiced" by failure to record (American Home
Assurance), you almost have to add the additional count against the
public entity for failure to see that a compliant bond was recorded
under Palm Beach/Trinity.
When your on that path the attorneys for the entity have started taking
the position the Palm Beach/Trinity type claim is in tort for common law
negligence, with the significance being whether notice requirements and
liability limitations of 768.28 apply, and further, whether comparatives
under 768.81 (Fabre) come in. Usually they try to point fault at the
claimant, whatever "noticing" outfit the sub or materialman used to
serve their notices, and any other party that could have taken action to
avert notice failings. I have even had one where the public entity and
the prime contractor cross-claimed against each other, each claiming
that the other "promised to record the bond". Very murky process.
Experience suggest to me that much of it could be avoided if there was
provision in 255.05, akin to that in 713.23(1)(b) (imposing liability
against the "owner, contractor or surety" for failing to furnish a copy
of the bond on demand). I say this, because sub-subs and materialman
almost always get the "owner" right when serving their notices even if
they can't find the bond. The Notice to Owner/Contractor form
inevitably requests a copy of any bond (713.23/255.05 and 337.18). I
don't recall once in 28 years having seen a single instance in which any
party that received notice actually furnished a copy of the bond. Also,
(and as Mr. Leiby adroitly points out in his learned treatise),
searching for bonds in the public record is never easy where there are
no specifications to the clerk for indexing.
GTE
Gregory T. Elliott
**/ELLIOTT - BERGER, P. A./**//
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On 2/6/2012 3:42 PM, kim.ashby at akerman.com wrote:
>
> Fred, if you look closely at that case, it was the Commissioner's E&O
> carrier (for operational activities) that was the liable party because
> the Commissioners were protected by the same sovereign immunity. See
> /Palm Beach County v. Trinity Industries, Inc./, 661 So. 2d 942 (Fla.
> 4th DCA 1995).//
>
> Since that opinion was published, the legislature made the following
> changes to section 255.05, specifically in adding section 255.05(9):
>
> (9) On any public works project for which the public
> authority requires a performance and payment bond, suits at law and in
> equity may be brought and maintained by and against the public
> authority on any contract claim arising from a breach of an express
> provision or an implied covenant of a written agreement or a written
> directive issued by the public authority pursuant to the written
> agreement. in any such suit, the public authority and the contractor
> shall have all of the same rights and obligations as a private person
> under a like contract except that no liability may be based on an oral
> modification of either the written contract or written directive.
> /Nothing herein shall be construed to waive the sovereign immunity of
> the state and its political subdivisions from equitable claims and
> equitable remedies. / The provisions of this section shall apply only
> to contracts entered into on or after July 1, 1999.
>
> /See also/
>
> /St. Augustine v. Brooks,/55 So. 2d 96 (Fla. 1951) (mechanic's lien
> will not attach to property held and used by a municipality for public
> purposes).
>
> Just saying.
>
> Kim
>
> *Kimberly A. Ashby*
>
> Board Certified in Appellate Law and Construction Law
>
> Akerman Senterfitt | 420 South Orange Avenue | Suite 1200 | Orlando,
> FL 32801
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> kim.ashby at akerman.com
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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 lien for 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
> <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/>
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> *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
>
> ------------------------------------------------------------------------
>
> *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-constructionlaw] 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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