[RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

Tue Feb 7 10:31:53 PST 2012

To be precise (copying and pasting from an old brief), The purpose of 
the statute requiring a contractor's bond on public works contracts is 
to protect laborers and materialmen on projects on which they can 
acquire no lien.  State of Florida f/b/o Westinghouse Electric Corp. v. 
Clutter Construction Corp., 132 So.2d 21 (Fla. 3d  DCA 1961).   ". . . 
As held in Fulghum v. State, 92 Fla. 662, 109 So. 644, it was the broad 
legislative intent to afford those supplying labor and materials on 
public works projects a means of protection in lieu of the lien afforded 
to them on private work as provided by other statutes."  Id. at 22, 
citing Fulghum v. State, 92 Fla. 662, 109 So. 644 (1926)  . F lorida 
Statutes §255.05 (2005) "is remedial in nature and therefor, entitled to 
a liberal construction, within reason, to effect its intended purpose.

Ostensibly (and with limitations) a "claimant" could acquire a lien 
against the leasehold interest of the contracting "tenant" (and no 
more).  In my view the protection of such a lien is only illusory.   
What is the likelihood that a public sale after foreclosure will result 
in proceeds to the claimant. . .  Then what does the claimant do with 
his brand new "leasehold interest".  Pay rent if the landlord will have him.

GTE

Gregory T. Elliott
**/ELLIOTT - BERGER, P. A./**//
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
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On 2/7/2012 12:24 PM, Reese J. Henderson, Jr. wrote:
> Joseph:  Your meaning is not at all clear.  How would a statutory 
> chapter 255.05 payment bond even be required for an improvement 
> contracted and paid for by a private entity leasing public land?  The 
> purpose of 255.05, as I had understood it, was to secure payment for 
> subcontractors supplying labor, services and materials to governmental 
> entities, not private parties.
>
>
> *Reese J. Henderson, Jr.*
> Shareholder
> GrayRobinson, P.A.
> 50 North Laura Street, Suite 1100
> Jacksonville, Florida 32202
> Main: 904-598-9929 | Fax: 904-598-9109
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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:* Tuesday, February 07, 2012 12:10 PM
> *To:* 'RPPTL constructionlaw'; 'Danay Diaz'
> *Subject:* Re: [RPPTL-constructionlaw]713.10 lien for private 
> leasehold onpublic land
>
> Not if the amendment by 2007-221 laws of Florida are interpreted 
> consistent with purpose of 255.05.
>
> *From:*constructionlaw-bounces at lists.flabarrpptl.org 
> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] *On Behalf Of 
> *Peyton White Lumpkin
> *Sent:* Monday, February 06, 2012 3:35 PM
> *To:* 'RPPTL constructionlaw'
> *Subject:* Re: [RPPTL-constructionlaw] 713.10 lien for private 
> leasehold onpublic land
>
> A 255 bond would not apply to a ground lease of public  vacant 
> property being developed by a private developer, with title to the 
> improvements in the developer until the end of the lease when they 
> revert back to the public entity, correct?
>
> Peyton White Lumpkin, Esq., LEED AP
>
> The Lumpkin Law Firm P.A.
>
> 2655 Le Jeune Road
>
> Fifth Floor
>
> Coral Gables, FL 33134
>
> Tel: (305) 667-1808
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> Fax: (305) 444-5366
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> _peytonwhitelumpkin at bellsouth.net 
> <mailto:peytonwhitelumpkin at bellsouth.net>_
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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 
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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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