[RPPTL LandTen] N-1003 - Landlord Tenant Committee: Re:Proposed Revisions to Section 713.10, Florida Statutes

Arthur J. Menor AMenor at shutts.com
Wed Jun 2 07:30:26 PDT 2010


Lloyd, see my responses below.
 
 <http://www.shutts.com/shutts100.jpg> 	 Arthur J. Menor 
Partner  
________________________________

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________________________________

	From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Lloyd Granet
	Sent: Wednesday, June 02, 2010 10:04 AM
	To: RPPTL Landlord Tenant Committee
	Subject: Re: [RPPTL LandTen] N-1003 - Landlord Tenant Committee:
Re:Proposed Revisions to Section 713.10, Florida Statutes
	
	

	I agree that we need to create a mechanism to protect landlord
from tenant work.  
	  
	I am confused by two things 
	  
	    1.    It seems to me that with alternative 2 we are
effectively telling a contractor who does a search, that there may be a
lien prohibition in the lease and you have a duty of further inquiry,
which seems to defeat the purpose of doing the search.   The contractor
will find the notice in his search.  The statute also requires the
tenant to notify him if the lease exculpates the landlord's interest
from liens.  If the notice is recorded but the lease does not contain
the exculpatory language the contractor will still have a claim against
the landlord's interest.  I don't think this scenario is unfair to the
contractor. 

	
	    2.    I do not understand what happens if we use alternative
1 and a future lease does not contain the prohibition.  Is the
protection lost for the individual lease or for all leases?   I think
with alternative 1 if a future lease contained no exculpation at all the
protection would be lost not just for that but for all leases in the
entire project (the result in the Everglades Electric case).  That is
why I think alternative 2 deserves some consideration. 

	
	While it may not be politically palatable, if you really want to
make it clear and simple provide that someone doing work on behalf of
the Tenant can not lien Landlord's interest unless Landlord signs the
notice of commencement or otherwise consents. This will force the issue
up front and everyone will understand the risks. 

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	________________________________ 

	        From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Arthur J.
Menor

	        Sent: Wednesday, June 02, 2010 9:40 AM 
	        To: RPPTL Landlord Tenant Committee 
	        Cc: lweintraub at becker-poliakoff.com;
mjgelfand at gelfandarpe.com 
	        Subject: N-1003 - Landlord Tenant Committee: Re: [RPPTL
LandTen] Proposed Revisions to Section 713.10,Florida Statutes

	        
	        
	        Alternative 1 essentially says that the notice will
still be effective to exculpate the landlord for liens even if all of
the leases do not contain the same exculpation language but do contain
some form of exculpation language.  Alternative 2 essentially say the
notice will still be effective even if all of the leases do not contain
the same exculpation language so long as the lease in question contains
that language.  I created alternative 2 because it seems to me that the
basic idea of the statute is that the landlord can avoid lien liability
by including an exculpation in a lease and recording notice of the
exculpation.  I don't see why it should matter that every lease for the
property have the exact same exculpation language.  The notice advises
lienors that they need to look to the tenant's interest only, it
shouldn't matter whether some leases don't have the same exculpatory
language or don't have any exculpatory language at all so long as the
lease for the premises which they are improving contains an exculpation.
The difference in exculpatory provisions or the absence of an
exculpatory provision could result from specific negotiations of
individual leases.

	         
	         <http://www.shutts.com/shutts100.jpg>          Arthur
J. Menor 
	        Partner  
	________________________________ 

	        Shutts & Bowen LLP 
	        1100 CityPlace Tower, 525 Okeechobee Boulevard | West
Palm Beach, FL 33401 
	        Direct: (561) 650-8510 | Fax: (561) 822-5510 
	        E-Mail <mailto:AMenor at shutts.com>  | Biography
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<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a
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<http://www.shutts.com/> 

	         
	                
	         
	        
	        

	________________________________ 

	                From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B.
Shoter

	                Sent: Tuesday, June 01, 2010 3:31 PM 
	                To: RPPTL Landlord Tenant Committee 
	                Cc: mjgelfand at gelfandarpe.com;
lweintraub at becker-poliakoff.com 
	                Subject: Re: [RPPTL LandTen] Proposed Revisions
to Section 713.10,Florida Statutes 
	                
	                
	                Good work.  I also like Alternate 1 but have
this suggestion: 
	                 
	                The protections against liens afforded by this
part shall apply notwithstanding all leases do not contain the same
language prohibiting such liability, so long as they substantially
express the intention that the interest of the lessor shall not be
subject to liens for improvements made by the lessee. 

	                                

	                 
	                 
	
<http://www.shutts.com/shutts100.jpg>                  Neil B. Shoter 
	                Partner / LEED Accredited Professional  
	________________________________ 

	                Shutts & Bowen LLP 
	                1100 CityPlace Tower, 525 Okeechobee Boulevard |
West Palm Beach, FL 33401 
	                Direct: (561) 650-8535 | Fax: (561) 822-5525 
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-af4b-a56f3cb8a441/Neil_B_Shoter.cfm/>  | Website
<http://www.shutts.com/> 

	                 
	                        
	                 


	________________________________ 

	                        From:
landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Arthur J.
Menor

	                        Sent: Friday, May 28, 2010 12:12 PM 
	                        To: RPPTL Landlord Tenant Committee 
	                        Cc: lweintraub at becker-poliakoff.com;
mjgelfand at gelfandarpe.com 
	                        Subject: [RPPTL LandTen] Proposed
Revisions to Section 713.10,Florida Statutes 
	                        
	                        
	                        Attached is my first draft (redlined to
show changes to current statute) of proposed statutory revisions to
address the Everglades Electric Supply, Inc. v. Paraiso Granite, LLC
case (28 So.3d 235 (Fla. 4th DCA 2010).

	                         
	                         <http://www.shutts.com/shutts100.jpg>
Arthur J. Menor 
	                        Partner  
	________________________________ 

	                        Shutts & Bowen LLP 
	                        1100 CityPlace Tower, 525 Okeechobee
Boulevard | West Palm Beach, FL 33401 
	                        Direct: (561) 650-8510 | Fax: (561)
822-5510 
	                        E-Mail <mailto:AMenor at shutts.com>  |
Biography
<http://www.shutts.com/index.cfm/fa/attorney.bio/atty/8051073b-833e-444a
-8b57-a6912a6d5435/Arthur_J_Menor.cfm/>  | V-Card
<http://www.shutts.com/index.cfm/fa/attorney.vcf/atty/8051073b-833e-444a
-8b57-a6912a6d5435/Arthur_J_Menor.cfm/>  | Website
<http://www.shutts.com/> 

	                                
	                         
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</pre>IRS CIRCULAR 230 NOTICE:   Pursuant to recently enacted<br>U.S. Treasury Department Regulations, we are now required<br>to advise you that, unless otherwise expressly indicated,<br>any federal tax advice expressed above was neither<br>written nor intended by the sender or this firm to be<br>used and cannot be used by any taxpayer for the purpose <br>of avoiding penalties that may be imposed under U.S. tax <br>law.  If any person uses or refers to any such tax advice<br>in promoting, marketing or recommending a partnership or<br>other entity, investment plan or arrangement to any <br>taxpayer, then the advice should be considered to have<br>been written to support the promotion or marketing by a <br>person other than the sender or this firm of that <br>transaction or matter, and such taxpayer should seek<br>advice based on the taxpayer's particular circumstances<br>from an independent tax advisor.<br><br><br>The information in this email transmission is privileged<br>and confidential.  If you are not the intended recipient,<br>nor the employee or agent responsible for delivering it to<br>the intended recipient, you are hereby notified that any<br>dissemination or copying of this transmission (including<br>any attachments) is strictly prohibited.  If you have<br>received this email in error, please notify the sender by<br>email reply.  Thank you.<br><pre>
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