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

Tue Feb 7 13:23:59 PST 2012

The assumed contracting parties can be a private entity contracting  with a private person under  255.05(1)(a).

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 1:57 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land

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

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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

 <http://www.gray-robinson.com/> GRAY | ROBINSON

ATTORNEYS AT LAW

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended 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.

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 be used for that purpose.

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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

Fax: (305) 444-5366

peytonwhitelumpkin at bellsouth.net

thelumpkinlawfirm.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
 <mailto:fred.dudley at hklaw.com> fred.dudley at hklaw.com |  <http://www.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 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
 <mailto:fred.dudley at hklaw.com> fred.dudley at hklaw.com |  <http://www.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

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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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