[RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
Tracye
Tracye at solovelawfirm.com
Tue Feb 7 10:28:36 PST 2012
No apologies, since there does not appear to be anything on point, the
language in Mayes may at least be persuasive. Thank you MUCHO.
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye at solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
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Miami, Florida 33186
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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 1:08 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
on public land
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.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law
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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.
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
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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 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
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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
P.O. Box 231, Orlando, Florida 32802
Dir: 407.419.8424 | Main: 407.423.4000 | Fax: 407.254.4229
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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
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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
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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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