[RPPTL-constructionlaw] 713.10 lien for private leaseholdon public land

Tue Feb 7 09:05:45 PST 2012

It’s like searching for a needle in a haystack.  At this point, the Court will have to decide whether the bond threshold is based upon the contract as a whole, or the individual projects thereunder. There doesn’t seem to be any law on this specific issue. 

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

Facsimile: (305) 612-0801

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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: Tuesday, February 07, 2012 11:37 AM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leaseholdon public land

It occurs to me that the local government’s “public records” should shed some light on any attempt to “slice and dice” as you describe it; otherwise, it may be hard to prove.

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
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Monday, February 06, 2012 4:28 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

Yes, I know about Glens Falls. (I love that case). I have a dec action pending with a Prime Contract that well exceeds the threshold, but where the individual projects thereunder were less than $200K each (after they deducted the DPO’s-change orders). Hence the “slice and dice” question. 

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

Facsimile: (305) 612-0801

http://www.solovelawfirm.com <http://www.solovelawfirm.com/> 

Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures

This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you. 

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 4:07 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

The case I was referring to is Warren, Governor for Use and Benefit of Hughes Supply Co., Inc. vs. Glens Falls Indemnity Co., 66 So. 2d 54 (Fla. 1953) and 74 So. 2d 888 (Fla. 1954), in which liability was found against the statutory surety bonds of school board members who had failed to require a s. 255 bond.  I used this case in Lee County to effect a $50,000 settlement against five (5) county commissioners each of who had posted the then required statutory $10,000 surety bonds (maybe since repealed?).

P. S. I was a mere child when Warren was Governor and this case was decided! A really old lawyer told me about it!

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 kim.ashby at akerman.com
Sent: Monday, February 06, 2012 3:43 PM
To: constructionlaw at lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land

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  

P.O. Box 231, Orlando, Florida 32802

Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229

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/>  

________________________________________________
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] 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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