[RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
Greg Elliott
gelliott at elliott-berger.com
Tue Feb 7 11:13:58 PST 2012
My apologies for chiming in... (again)
The terms "public work" or "public building" are not defined for
purposes of Chapter 255, and no reported opinion has addressed it in
that context. The term 'public works' has been otherwise defined as all
fixed works, constructed for public use, as railways, docks, canals,
water-works, roads, etc. (citation omitted)". Demeter Land Co. v.
Florida Public Service Co., 99 Fla. 954, 963, 128 So. 402, 406 (1930).
In Housing by Vogue, Inc. v. Department of Revenue, 422 So.2d 3 (Fla.
1982), the Court broadened the definition of "public works" to include
portable classrooms despite their character as "personalty", citing to
the general definition of public works contained in American
Jurisprudence, Second Edition:
The determination of what are public works is often a question
of statutory construction and interpretation. The question of whether
a work is a public work is not to be determined by the mode of payment
or by the instruments used in attaining it, but rather by the objects
to be accomplished.
(If you are listening out there Arnie . . . I really need to find time
to finish that article with RJ)
G. Elliot
Gregory T. Elliott
**/ELLIOTT - BERGER, P. A./**//
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On 2/7/2012 1:57 PM, Reese J. Henderson, Jr. wrote:
> I assume you are referring to the addition of "or private entity" to
> the first sentence of 255.05(1)(a). However, the contract in question
> still must have as its object one of the following three enumerated in
> that sentence: "the construction of a public building, for the
> prosecution and completion of a public work, or for repairs upon a
> public building or public work . . . ." Is it the case that an
> improvement constructed and occupied by a private entity under a lease
> with a governmental entity necessarily is a "public building" or that
> the construction of same is a "public work"? If it's procurement is
> done pursuant to the applicable procurement statutes and regulations,
> then I suppose it would be. However, I don't believe that is always
> or even mostly the case. One example that springs to mind is an
> airport hotel constructed upon public land. Is that a "public building"?
>
>
> *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
> Email: Reese.Henderson at gray-robinson.com
>
> *GRAY**| ROBINSON* <http://www.gray-robinson.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:* Tuesday, February 07, 2012 1:35 PM
> *To:* 'RPPTL constructionlaw'
> *Subject:* Re: [RPPTL-constructionlaw]713.10 lien for private
> leasehold onpublic land
>
> If you diagramed sentences in grade school, diagram 255.05(1)(a). That
> yields conclusion I offered for interpretation of 255.05(1)(a). The
> person contracting for improvement with a private entity to be
> constructed upon public property or public work "shall be required" to
> get and record payment and performance bond. There are many cases that
> explain the purpose of 255.05 as to supply a remedy because the lien
> laws don't supply remedy for lienors when improvement is to public
> work. Both the grammatical structure and purpose for the amendment was
> to make private participants to construction to be accountable for
> security for payment because lien remedies are insufficient on public
> property. There is no "right" to contract for improvements for benefit
> of private parties. The amendment in 2007 merely corrects a gap in
> what has always been intention under 255.05 to protect Lienors.
>
> *From:*constructionlaw-bounces at lists.flabarrpptl.org
> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] *On Behalf Of
> *Reese J. Henderson, Jr.
> *Sent:* Tuesday, February 07, 2012 12:25 PM
> *To:* RPPTL constructionlaw; Danay Diaz
> *Subject:* Re: [RPPTL-constructionlaw] 713.10 lien for private
> leasehold onpublic land
>
> 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
>
> Email: Reese.Henderson at gray-robinson.com
> <mailto:Reese.Henderson at gray-robinson.com>
>
> *GRAY | **ROBINSON* <http://www.gray-robinson.com/>
>
> ATTORNEYS AT LAW
>
>
> This e-mail is intended only for the individual(s) or entity(s) named
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> recipient, or the agent responsible to deliver it to the intended
> recipient, you are hereby notified that any review, dissemination,
> distribution or copying of this communication is prohibited by the
> sender and to do so might constitute a violation of the Electronic
> Communications Privacy Act, 18 U.S.C. section 2510-2521. If this
> communication was received in error we apologize for the intrusion.
> Please notify us by reply e-mail and delete the original message
> without reading same. Nothing in this e-mail message shall, in and of
> itself, create an attorney-client relationship with the sender.
>
> Disclaimer under Circular 230: Any statements regarding tax matters
> made herein, including any attachments, are not formal tax opinions by
> this firm, cannot be relied upon or used by any person to avoid tax
> penalties, and are not intended to be used or referred to in any
> marketing or promotional materials.
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> Please be advised that this law firm may be acting as a debt collector
> and is attempting to collect a debt and any information provided will
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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:* 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>
> [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
>
> Fax: (305) 444-5366
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> _peytonwhitelumpkin at bellsouth.net
> <mailto:peytonwhitelumpkin at bellsouth.net>_
>
> __
>
> _thelumpkinlawfirm.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/>
>
> ________________________________________________
> 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>
> [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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