[RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
Greg Elliott
gelliott at elliott-berger.com
Tue Feb 7 10:07:35 PST 2012
My apologies Tracye. . . I had not actually looked at the string, my
interest was just piqued by Ms. Ashby's discussion. Particular to your
question, I suspect you have already made your way through the cases
dealing with "bid splitting" and "piggybacking" in an effort by by the
public procuring agent to avoid putting a job out to competitive
bidding, i.e., Mayes v Flowers, 154/859. Doesn't get you there, but
maybe a foot in the door.
G. Elliott
Gregory T. Elliott
**/ELLIOTT - BERGER, P. A./**//
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On 2/7/2012 10:10 AM, Tracye wrote:
>
> Thank you Greg for the thoughts. The tort route is a long road, but it
> may open up to an E & O policy.
>
> Logo
>
> Tracye K. Solove, Attorney at Law
>
> Certified Civil Circuit Mediator
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> _Tracye at solovelawfirm.com_
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> *From:*constructionlaw-bounces at lists.flabarrpptl.org
> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] *On Behalf Of
> *Greg Elliott
> *Sent:* Tuesday, February 07, 2012 9:04 AM
> *To:* RPPTL constructionlaw
> *Subject:* Re: [RPPTL-constructionlaw] 713.10 lien for private
> leasehold on public land
>
> 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./*
> 10225 Ulmerton Road, Suite 4A
> Largo, Florida 33771
> (727) 360-2600 (Phone)
> (727) 360-6588 (Fax)*
> **Board Certified In Construction Law**
> *
>
> *_NOTICE OF CONFIDENTIALITY:_***This message and its attachments are
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>
> On 2/6/2012 3:42 PM, kim.ashby at akerman.com
> <mailto: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
>
> P.O. Box 231, Orlando, Florida 32802
>
> Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229
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> kim.ashby at akerman.com <mailto:kim.ashby at akerman.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
> *fred.dudley at hklaw.com <mailto:fred.dudley at hklaw.com>
> *Sent:* Monday, February 06, 2012 3:04 PM
> *To:* constructionlaw at lists.flabarrpptl.org
> <mailto: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>
> [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>
> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] *On Behalf Of
> *fred.dudley at hklaw.com <mailto:fred.dudley at hklaw.com>
> *Sent:* Friday, February 03, 2012 2:25 PM
> *To:* constructionlaw at lists.flabarrpptl.org
> <mailto: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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