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

Tue Feb 7 13:34:27 PST 2012

I can see you are having fun.  With copies of  the messages, there is at
least a luncheon seminar outlined for detailed development. Add some
procurement issues for 255.103 and a ½ day seminar is  waiting for a
volunteer. On that procurement topic of slicing up scope to avoid bonds,
similar issues arise under 287.055 for design, and 255.103 for CM or PM
management.  

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Tuesday, February 07, 2012 1:32 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land

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
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law

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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

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 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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