Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttp://www.floridahardhatlaw.com/
Board Certified by the Florida Bar in Construction Law
AV(r)Preeminent Peer Review Rated by Martindale-Hubbell
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Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett krb@floridahardhatlaw.com
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttp://www.floridahardhatlaw.com/
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
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More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103 http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html (16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett krb@floridahardhatlaw.com
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: mailto:acl@FloridaHardhatLaw.com acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: http://www.floridahardhatlaw.com/ www.Floridahardhatlaw.com
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
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[v4.30]
You must be a licensed contractor in Florida to perform CM work. See CILB Dec. Statement 2011-082.
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett krb@floridahardhatlaw.com
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103https://linkprotect.cudasvc.com/url?a=http://www.leg.state.fl.us/Statutes/index.cfm%3fApp_mode%3dDisplay_Statute%26Search_String%3d%26URL%3d0400-0499/0489/Sections/0489.103.html&c=E,1,2bOhmrrxn0hkmwEmHi7oU-rkYa74xVAPPnlzygriNIwNmw_Pq5Y-o_MuzmDD4ZlxNcLBvQWoGVV_g2NfDrZPB8-UrjcHRIr9dxA34eR7BWY,&typo=1(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttps://linkprotect.cudasvc.com/url?a=http://www.lowndes-law.com&c=E,1,mrCHDNO9f_GM0r99Y8IuJzJjrUaeykXQz9mhHvglIg7gy46kl8j7RvdrhqiiwCBy4wTpVs7sTnNhQ-vBYi-Xjm0zuQjbOO_UaivMYY5jr-q_3PWWsAN0avPD&typo=1
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttps://linkprotect.cudasvc.com/url?a=http://www.floridahardhatlaw.com/&c=E,1,8oimuNKqc2e0WxHBGhr0zJl069-O7VX-uP4MZ2j5Vopxu2laX_RA0q_8EF-Z9Ecg-f9kblzJVKOq8HRpYL61h-US7pGthSWcwt8d1LNFcJSd&typo=1
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
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[v4.30]
CM could be a professional lienor, if it has a professional license (architect or engineer), for performing “professional services” for the owner.
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, November 15, 2017 3:05 PM
To: 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' krb@floridahardhatlaw.com
Subject: Re: [CLC-Discussion] Question CM lien rights
More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
[cid:image003.jpg@01D278BA.70183310]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttp://www.floridahardhatlaw.com/
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
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Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.
Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.
[v4.30]
They do meet the definition of contractor.
See attached from CILB
Sincerely yours,
Address: 1720 Harrison Street, Penthouse B
Hollywood, FL 33020
Office: (954) 620-5000
Fax: (954) 620-5105
Web#1: www.TheConstructionLawyers.comhttp://www.theconstructionlawyers.com/
Randall Gilbert, Esq.
Web#2: www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/
Board Certified Construction Lawyer
Web#3: www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/
[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, November 15, 2017 3:05 PM
To: 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' krb@floridahardhatlaw.com
Subject: Re: [CLC-Discussion] Question CM lien rights
More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
[cid:image003.jpg@01D278BA.70183310]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttp://www.floridahardhatlaw.com/
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
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[v4.30]
There is a difference between a CM as agent and an Owner’s Rep. If the CM/Owner’s agreement is based on the AIA, the CM has duties which would constitute services under 713.01 and which require the CM to be licensed under 489. If it is just an Owner’s Rep agreement, may not have lien rights, but don’t need to be licensed.
Stuart H. Sakwa
Board Certified in Construction Law
Stuart H. Sakwa, P.A.
8888 Rockridge Glen Cove
Boynton Beach, Florida 33473
Phone 561-810-5855
Mobile 954-261-9598
Fax 561-763-7368
shsakwa@outlook.commailto:shsakwa@outlook.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Sean A. Mickley
Sent: Wednesday, November 15, 2017 3:19 PM
To: CHernicz@Herniczlegal.com; 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' krb@floridahardhatlaw.com
Subject: Re: [CLC-Discussion] Question CM lien rights
CM could be a professional lienor, if it has a professional license (architect or engineer), for performing “professional services” for the owner.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, November 15, 2017 3:05 PM
To: 'Gibbons, Michael' <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com>; 'Adam C. Linkhorst' <ACL@floridahardhatlaw.commailto:ACL@floridahardhatlaw.com>; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: Re: [CLC-Discussion] Question CM lien rights
More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.comhttps://eur03.safelinks.protection.outlook.com/?url=Chernicz%40HerniczLegal.com&data=02%7C01%7Cshsakwa%40outlook.com%7C42d2f7a1ab0e4bd7529b08d52c67fcaf%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636463747489925282&sdata=HlECTmuHsy2uggy9wRBAHOhsPnbtp0Yx3xqdY2ogbxM%3D&reserved=0
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103https://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.leg.state.fl.us%2FStatutes%2Findex.cfm%3FApp_mode%3DDisplay_Statute%26Search_String%3D%26URL%3D0400-0499%2F0489%2FSections%2F0489.103.html&data=02%7C01%7Cshsakwa%40outlook.com%7C42d2f7a1ab0e4bd7529b08d52c67fcaf%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636463747489925282&sdata=55S3p4NYkiSKOkMdEqAHYIzex5uJwWc0RO8sdy34XUY%3D&reserved=0(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttps://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.lowndes-law.com&data=02%7C01%7Cshsakwa%40outlook.com%7C42d2f7a1ab0e4bd7529b08d52c67fcaf%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636463747489925282&sdata=Ef0%2BRT43dFc%2BayOwUJ7YLKIghoeCq4%2BdC3nvdmmR5jY%3D&reserved=0
[cid:image003.jpg@01D278BA.70183310]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttps://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.floridahardhatlaw.com%2F&data=02%7C01%7Cshsakwa%40outlook.com%7C42d2f7a1ab0e4bd7529b08d52c67fcaf%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C636463747489925282&sdata=R4XCiqZZZZZ%2F1MHPEYcMAqMoyEzMgaaubWxBbafXYIU%3D&reserved=0
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
[LH_Logo_ConstLaw_Fnl_300dpi]
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Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.
Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.
[v4.30]
The DS just says that one must be a licensed contractor to perform CM role where that involves supervision of construction. The issue was not presented or addressed whether lien righs attach to that activity. It appears the DS was considering the 489 definition of Contractor and not the 713 definition. Not everything a licensed GC does is lienable. For example, preconstruction services of a GC consisting of estimating, bidding, VE etc.. do not in my opinion constitute lienable services supporting the filing of a lien under Ch. 713 since real estate was not actually improved.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
[cid:image003.jpg@01D278BA.70183310]
From: Randall Gilbert [mailto:rgilbert@theconstructionlawyers.com]
Sent: Wednesday, November 15, 2017 3:27 PM
To: CHernicz@Herniczlegal.com; Gibbons, Michael Michael.Gibbons@lowndes-law.com; 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' krb@floridahardhatlaw.com
Subject: RE: [CLC-Discussion] Question CM lien rights
They do meet the definition of contractor.
See attached from CILB
Sincerely yours,
Address: 1720 Harrison Street, Penthouse B
Hollywood, FL 33020
Office: (954) 620-5000
Fax: (954) 620-5105
Web#1: www.TheConstructionLawyers.comhttp://www.theconstructionlawyers.com/
Randall Gilbert, Esq.
Web#2: www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/
Board Certified Construction Lawyer
Web#3: www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/
[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, November 15, 2017 3:05 PM
To: 'Gibbons, Michael' <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com>; 'Adam C. Linkhorst' <ACL@floridahardhatlaw.commailto:ACL@floridahardhatlaw.com>; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: Re: [CLC-Discussion] Question CM lien rights
More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
[cid:image003.jpg@01D278BA.70183310]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttp://www.floridahardhatlaw.com/
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
[LH_Logo_ConstLaw_Fnl_300dpi]
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Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.
Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.
[v4.30]
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Not unless it is one of the “professional services” listed in 713.03—architect, landscape architect, interior designer, engineer, or surveyor.
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: Sean A. Mickley [mailto:smickley@gouldcooksey.com]
Sent: Wednesday, November 15, 2017 3:19 PM
To: CHernicz@Herniczlegal.com; 'Gibbons, Michael'; 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett'
Subject: RE: [CLC-Discussion] Question CM lien rights
CM could be a professional lienor, if it has a professional license (architect or engineer), for performing “professional services” for the owner.
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, November 15, 2017 3:05 PM
To: 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' krb@floridahardhatlaw.com
Subject: Re: [CLC-Discussion] Question CM lien rights
More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103 http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html (16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
cid:image003.jpg@01D278BA.70183310
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett krb@floridahardhatlaw.com
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: mailto:acl@FloridaHardhatLaw.com acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
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[v4.30]
Agree with Mr. Gibbons – the issue hinges on what kind of activities the CM performed (or will perform) and whether they fit the definition of an improvement under the lien law. The items Mr. Linkhorst set forth in in his inquiry (project management/coordination type activities) do not appear to be lienable items (regardless of whether they are being performed by a licensed gc or not). In Medellin v. MLA Consulting, Inc., 69 So.3d 372 (Fla. 5th DCA 2011), the 5th DCA held that an (unlicensed) owner consultant’s lien was improper. However, the focus was not on the fact that he was unlicensed, rather on the fact that the type of services he provided (site review, budget meetings, plan reviews, cost estimating, etc.) did not constitute labor or services constituting a lienable “improvement”.
Jennifer C. Gonzalez, Esq.
Board Certified in Construction Law
Taylor Espino Vega & Touron, P.A.
55 Merrick Way, Suite 406
Coral Gables, Florida 33134
Telephone: (305) 441-9355
Facsimile: (305) 441-0051
Cell: (305) 773-0602
E-mail: JGonzalez@TEVTLaw.commailto:jgonzalez@tevtlaw.com
[cid:image005.png@01CFF756.50BA2BA0]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 3:48 PM
To: 'Randall Gilbert' rgilbert@theconstructionlawyers.com; CHernicz@Herniczlegal.com; 'Adam C. Linkhorst' ACL@floridahardhatlaw.com; CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' krb@floridahardhatlaw.com
Subject: Re: [CLC-Discussion] Question CM lien rights
The DS just says that one must be a licensed contractor to perform CM role where that involves supervision of construction. The issue was not presented or addressed whether lien righs attach to that activity. It appears the DS was considering the 489 definition of Contractor and not the 713 definition. Not everything a licensed GC does is lienable. For example, preconstruction services of a GC consisting of estimating, bidding, VE etc.. do not in my opinion constitute lienable services supporting the filing of a lien under Ch. 713 since real estate was not actually improved.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
[cid:image003.jpg@01D278BA.70183310]
From: Randall Gilbert [mailto:rgilbert@theconstructionlawyers.com]
Sent: Wednesday, November 15, 2017 3:27 PM
To: CHernicz@Herniczlegal.commailto:CHernicz@Herniczlegal.com; Gibbons, Michael <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com>; 'Adam C. Linkhorst' <ACL@floridahardhatlaw.commailto:ACL@floridahardhatlaw.com>; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: RE: [CLC-Discussion] Question CM lien rights
They do meet the definition of contractor.
See attached from CILB
Sincerely yours,
Address: 1720 Harrison Street, Penthouse B
Hollywood, FL 33020
Office: (954) 620-5000
Fax: (954) 620-5105
Web#1: www.TheConstructionLawyers.comhttp://www.theconstructionlawyers.com/
Randall Gilbert, Esq.
Web#2: www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/
Board Certified Construction Lawyer
Web#3: www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/
[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Wednesday, November 15, 2017 3:05 PM
To: 'Gibbons, Michael' <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com>; 'Adam C. Linkhorst' <ACL@floridahardhatlaw.commailto:ACL@floridahardhatlaw.com>; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: 'Kelly R. Bennett' <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: Re: [CLC-Discussion] Question CM lien rights
More importantly, I don’t think the CM Agent meets the definition of a lienor in 713.01(18) – if it is not a “lienor” under the definitions prescribed in law, there is no lien rights.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Wednesday, November 15, 2017 2:49 PM
To: 'Adam C. Linkhorst'; CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett
Subject: Re: [CLC-Discussion] Question CM lien rights
Interesting question, Adam. I don’t believe a CM Agent has lien rights technically since they don’t fit the definition of “Contractor” under Ch. 713 (or 489). I don’t think the statutory definitions of “Contractor” and “improve” support statutory lien rights in that context.
(8) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as so defined the entire remaining work under such contract. The term “contractor” includes an architect, landscape architect, or engineer who improves real property pursuant to a design-build contract authorized by s. 489.103http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0489/Sections/0489.103.html(16).
14) “Improve” means build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.
A CM Agent is typically functioning in an Owner’s Rep capacity and is acting on behalf of Owner while supplying expertise the Owner typically does not possess. If you ask does an Owner’s Rep have lien rights, the answer would appear to be “no” and same answer in my opinion for CM Agent.
Michael R. Gibbons (Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.com
[cid:image003.jpg@01D278BA.70183310]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Adam C. Linkhorst
Sent: Wednesday, November 15, 2017 2:04 PM
To: CLC-Discussion@lists.flabarrpptl.orgmailto:CLC-Discussion@lists.flabarrpptl.org
Cc: Kelly R. Bennett <krb@floridahardhatlaw.commailto:krb@floridahardhatlaw.com>
Subject: [CLC-Discussion] Question CM lien rights
Does a GC working directly for an Owner under a CM Agency Contract have lien rights? The type of services being provided generally include preconstruction, project management, coordination, etc. The CM is not subbing any work directly. Thanks for any feedback. Adam
Adam C. Linkhorst, Esq.
Linkhorst & Hockin, P.A.
4495 Military Trail, Suite 106
Jupiter, FL 33458
Email: acl@FloridaHardhatLaw.commailto:acl@FloridaHardhatLaw.com
Tel. 561.626.8880 / Cell. 954.562.9199
Fax. 561.626.8885
Website: www.Floridahardhatlaw.comhttp://www.floridahardhatlaw.com/
Board Certified by the Florida Bar in Construction Law
AV®Preeminent Peer Review Rated by Martindale-Hubbell
[LH_Logo_ConstLaw_Fnl_300dpi]
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[v4.30]
Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.
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Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.
[v4.30]
