Empathy List Archives

JZ

Justin Zinzow

Fri, Jun 15, 2018 6:13 PM

Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property.

So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)?

Justin R. Zinzow
Board Certified Construction Specialist
AV Preeminent(r) Rated Attorney

P: (727) 787-3121
F: (727) 787-3231
35111 US Highway 19 N, Suite 302
Palm Harbor, Florida 34684
Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/ | Websitehttp://www.zinzowlaw.com/ | Emailmailto:%20jzinzow@zinzowlaw.com

[cid:image001.jpg@01D404A9.3213A780]
Construction | Real Estate | Appellate | Business

Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property. So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)? Justin R. Zinzow Board Certified Construction Specialist AV Preeminent(r) Rated Attorney P: (727) 787-3121 F: (727) 787-3231 35111 US Highway 19 N, Suite 302 Palm Harbor, Florida 34684 Bio<http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/> | Website<http://www.zinzowlaw.com/> | Email<mailto:%20jzinzow@zinzowlaw.com> [cid:image001.jpg@01D404A9.3213A780] Construction | Real Estate | Appellate | Business

LS

Laurie Sams

Fri, Jun 15, 2018 6:33 PM

Justin,

My understanding is that the lien will only attached to whatever interest
the owner has (when I say owner I mean the person with whom the contractor
has privity or that received the NTO). So if it is with a tenant, the lien
only attaches to the leasehold interest absent a separate NTO to the owner.

Laurie B. Sams

Van Winkle & Sams, P.A.
3859 Bee Ridge Road, Suite 202
Sarasota, FL 34233
(941) 923-1685
fax (941) 923-0174
lauriesams@comcast.net mailto:lauriesams@comcast.net

www.vwslaw.com http://www.vwslaw.com

**Due to current banking policies we will require all buyer's closing funds
to be delivered by wire transfer.

Be aware! Online banking fraud is on the rise. If you receive an email
containing WIRE TRANSFER INSTRUCTIONS call us immediately to confirm all
wiring instructions by phone directly with our office prior to sending
funds.

CONFIDENTIALITY NOTE: This transmittal may be a confidential attorney-client
communication or may otherwise be privileged or confidential. If it is not
clear that you are the intended recipient, you are hereby notified that you
have received this transmittal in error. In that case, any review,
dissemination, distribution or copying of this transmittal is strictly
prohibited. If you suspect that you have received this communication in
error, please notify us immediately by telephone (941) 923-1685, or e-mail
at lauriesams@comcast.net mailto:lauriesams@comcast.net and immediately
delete this message and all of its attachments.

From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin
Zinzow
Sent: Friday, June 15, 2018 2:14 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner
required when the contractor is in privity with the lessee?

Dear subcommittee: I have a question I would appreciate your input on. Is
a Notice to Owner to the Fee Simple Owner required when the contractor is in
privity with the lessee?

My instinct was immediately "of course." However, section 713.01 defines
owner as "a person who is the owner of any legal or equitable interest in
real property, which interest can be sold by legal process, and who enters
into a contract for the improvement of the real property." A leasehold
interest is an equitable interest in real property.

So could it be that a lessee with whom the lienor is in privity is deemed
"owner" for NTO purposes such that no notice to owner is required and the
lien attaches to the fee simple interest (assuming the lease requires the
lessee to make improvements to the property and there is no limitation of
lien rights recorded by the fee owner)?

Justin R. Zinzow

Board Certified Construction Specialist

AV PreeminentR Rated Attorney

P: (727) 787-3121

F: (727) 787-3231

35111 US Highway 19 N, Suite 302

Palm Harbor, Florida 34684

http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/ Bio |
http://www.zinzowlaw.com/ Website | mailto:%20jzinzow@zinzowlaw.com
Email

Construction | Real Estate | Appellate | Business

Justin, My understanding is that the lien will only attached to whatever interest the owner has (when I say owner I mean the person with whom the contractor has privity or that received the NTO). So if it is with a tenant, the lien only attaches to the leasehold interest absent a separate NTO to the owner. Laurie B. Sams Van Winkle & Sams, P.A. 3859 Bee Ridge Road, Suite 202 Sarasota, FL 34233 (941) 923-1685 fax (941) 923-0174 lauriesams@comcast.net <mailto:lauriesams@comcast.net> www.vwslaw.com <http://www.vwslaw.com> **Due to current banking policies we will require all buyer's closing funds to be delivered by wire transfer. **Be aware! Online banking fraud is on the rise. If you receive an email containing WIRE TRANSFER INSTRUCTIONS call us immediately to confirm all wiring instructions by phone directly with our office prior to sending funds.** CONFIDENTIALITY NOTE: This transmittal may be a confidential attorney-client communication or may otherwise be privileged or confidential. If it is not clear that you are the intended recipient, you are hereby notified that you have received this transmittal in error. In that case, any review, dissemination, distribution or copying of this transmittal is strictly prohibited. If you suspect that you have received this communication in error, please notify us immediately by telephone (941) 923-1685, or e-mail at lauriesams@comcast.net <mailto:lauriesams@comcast.net> and immediately delete this message and all of its attachments. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow Sent: Friday, June 15, 2018 2:14 PM To: clc-discussion@lists.flabarrpptl.org Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property. So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)? Justin R. Zinzow Board Certified Construction Specialist AV PreeminentR Rated Attorney P: (727) 787-3121 F: (727) 787-3231 35111 US Highway 19 N, Suite 302 Palm Harbor, Florida 34684 <http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/> Bio | <http://www.zinzowlaw.com/> Website | <mailto:%20jzinzow@zinzowlaw.com> Email Construction | Real Estate | Appellate | Business

AF

Andrew Feldman

Fri, Jun 15, 2018 6:41 PM

Justin,

Take a look at Budget Elec. Co. v. Strauss, 417 So. 2d 1143, 1145 (Fla. 5th DCA 1982). I haven't run it to ground in terms of, for example, statutory language comparison from then to now or cases that may discuss it, but it should give you a starting point:

"Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648 (1947). That case held only that where a lease expressly required the lessee to make improvements, the lessee is deemed the owner's agent, the contractor dealing with the lessee may be construed to be in privity with the owner, and no notice to owner is required. Where, as here, the contract neither expressly nor impliedly required the lessee to make improvements, no such privity can be implied and the notice to owner is required. Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942)."

Andrew M. Feldman, Esq.
Feldman Law
Dadeland Square
7700 North Kendall Drive, Suite 809
Miami, Florida 33156
Tel.: 305-445-2005, Ext. 202
Fax: 305-445-2889
Email: AFeldman@FeldmanLawOffices.com mailto:AFeldman@FeldmanLawOffices.com

A portion of our practice involves the collection of a debt. To the extent you are communicating with our firm in its capacity as a debt collector, pursuant to the Fair Debt Collection Practices Act, you are advised that any information obtained may be used for that purpose.

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Justin Zinzow
Sent: Friday, June 15, 2018 2:14 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property.

So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)?

Justin R. Zinzow
Board Certified Construction Specialist
AV Preeminent(r) Rated Attorney

P: (727) 787-3121
F: (727) 787-3231
35111 US Highway 19 N, Suite 302
Palm Harbor, Florida 34684
Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/ | Websitehttp://www.zinzowlaw.com/ | Emailmailto:%20jzinzow@zinzowlaw.com

[cid:image001.jpg@01D0BDB4.D6A53AA0]
Construction | Real Estate | Appellate | Business

Justin, Take a look at Budget Elec. Co. v. Strauss, 417 So. 2d 1143, 1145 (Fla. 5th DCA 1982). I haven't run it to ground in terms of, for example, statutory language comparison from then to now or cases that may discuss it, but it should give you a starting point: "Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648 (1947). That case held only that where a lease expressly required the lessee to make improvements, the lessee is deemed the owner's agent, the contractor dealing with the lessee may be construed to be in privity with the owner, and no notice to owner is required. Where, as here, the contract neither expressly nor impliedly required the lessee to make improvements, no such privity can be implied and the notice to owner is required. Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942)." Andrew M. Feldman, Esq. Feldman Law Dadeland Square 7700 North Kendall Drive, Suite 809 Miami, Florida 33156 Tel.: 305-445-2005, Ext. 202 Fax: 305-445-2889 Email: AFeldman@FeldmanLawOffices.com<mailto:AFeldman@FeldmanLawOffices.com> A portion of our practice involves the collection of a debt. To the extent you are communicating with our firm in its capacity as a debt collector, pursuant to the Fair Debt Collection Practices Act, you are advised that any information obtained may be used for that purpose. From: clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Justin Zinzow Sent: Friday, June 15, 2018 2:14 PM To: clc-discussion@lists.flabarrpptl.org Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property. So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)? Justin R. Zinzow Board Certified Construction Specialist AV Preeminent(r) Rated Attorney P: (727) 787-3121 F: (727) 787-3231 35111 US Highway 19 N, Suite 302 Palm Harbor, Florida 34684 Bio<http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/> | Website<http://www.zinzowlaw.com/> | Email<mailto:%20jzinzow@zinzowlaw.com> [cid:image001.jpg@01D0BDB4.D6A53AA0] Construction | Real Estate | Appellate | Business

DB

Davis Balz

Fri, Jun 15, 2018 7:35 PM

Attached is an old but potentially helpful Fla. Bar Journal article that touches on some of these issues.

Davis D. Balz | 1501 San Marco Blvd., Jacksonville, FL 32207 | main: 904.598.9282 | dbalz@murphyandersonlaw.com mailto:dbalz@murphyandersonlaw.com | www.murphyandersonlaw.com http://www.murphyandersonlaw.com/

[Description: Description: Description: 1.2010]

The information contained in this e-mail is from a law firm and is only intended for the personal and confidential use of the person(s) to whom it is addressed, and may be a PRIVILEGED ATTORNEY-CLIENT COMMUNICATION. If the reader of this message is not the intended recipient (or such recipient's authorized agent), you are hereby notified that you have received this e-mail in error. Any review, disclosure, distribution, or copying of this e-mail or the information contained herein without the written consent of the sender is strictly prohibited. If you have received this e-mail in error, please notify the sender by return e-mail. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrew Feldman
Sent: Friday, June 15, 2018 2:42 PM
To: Justin Zinzow JZinzow@Zinzowlaw.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

Justin,

Take a look at Budget Elec. Co. v. Strauss, 417 So. 2d 1143, 1145 (Fla. 5th DCA 1982). I haven't run it to ground in terms of, for example, statutory language comparison from then to now or cases that may discuss it, but it should give you a starting point:

"Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648 (1947). That case held only that where a lease expressly required the lessee to make improvements, the lessee is deemed the owner's agent, the contractor dealing with the lessee may be construed to be in privity with the owner, and no notice to owner is required. Where, as here, the contract neither expressly nor impliedly required the lessee to make improvements, no such privity can be implied and the notice to owner is required. Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942)."
Andrew M. Feldman, Esq.
Feldman Law
Dadeland Square
7700 North Kendall Drive, Suite 809
Miami, Florida 33156
Tel.: 305-445-2005, Ext. 202
Fax: 305-445-2889
Email: AFeldman@FeldmanLawOffices.com mailto:AFeldman@FeldmanLawOffices.com

A portion of our practice involves the collection of a debt. To the extent you are communicating with our firm in its capacity as a debt collector, pursuant to the Fair Debt Collection Practices Act, you are advised that any information obtained may be used for that purpose.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Justin Zinzow
Sent: Friday, June 15, 2018 2:14 PM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee?

My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property.

So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)?

Justin R. Zinzow
Board Certified Construction Specialist
AV Preeminent(r) Rated Attorney

P: (727) 787-3121
F: (727) 787-3231
35111 US Highway 19 N, Suite 302
Palm Harbor, Florida 34684
Biohttp://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/ | Websitehttp://www.zinzowlaw.com/ | Emailmailto:%20jzinzow@zinzowlaw.com

[cid:image001.jpg@01D0BDB4.D6A53AA0]
Construction | Real Estate | Appellate | Business

Attached is an old but potentially helpful Fla. Bar Journal article that touches on some of these issues. Davis D. Balz | 1501 San Marco Blvd., Jacksonville, FL 32207 | main: 904.598.9282 | dbalz@murphyandersonlaw.com<mailto:dbalz@murphyandersonlaw.com> | www.murphyandersonlaw.com<http://www.murphyandersonlaw.com/> [Description: Description: Description: 1.2010] The information contained in this e-mail is from a law firm and is only intended for the personal and confidential use of the person(s) to whom it is addressed, and may be a PRIVILEGED ATTORNEY-CLIENT COMMUNICATION. If the reader of this message is not the intended recipient (or such recipient's authorized agent), you are hereby notified that you have received this e-mail in error. Any review, disclosure, distribution, or copying of this e-mail or the information contained herein without the written consent of the sender is strictly prohibited. If you have received this e-mail in error, please notify the sender by return e-mail. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrew Feldman Sent: Friday, June 15, 2018 2:42 PM To: Justin Zinzow <JZinzow@Zinzowlaw.com>; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? Justin, Take a look at Budget Elec. Co. v. Strauss, 417 So. 2d 1143, 1145 (Fla. 5th DCA 1982). I haven't run it to ground in terms of, for example, statutory language comparison from then to now or cases that may discuss it, but it should give you a starting point: "Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648 (1947). That case held only that where a lease expressly required the lessee to make improvements, the lessee is deemed the owner's agent, the contractor dealing with the lessee may be construed to be in privity with the owner, and no notice to owner is required. Where, as here, the contract neither expressly nor impliedly required the lessee to make improvements, no such privity can be implied and the notice to owner is required. Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942)." Andrew M. Feldman, Esq. Feldman Law Dadeland Square 7700 North Kendall Drive, Suite 809 Miami, Florida 33156 Tel.: 305-445-2005, Ext. 202 Fax: 305-445-2889 Email: AFeldman@FeldmanLawOffices.com<mailto:AFeldman@FeldmanLawOffices.com> A portion of our practice involves the collection of a debt. To the extent you are communicating with our firm in its capacity as a debt collector, pursuant to the Fair Debt Collection Practices Act, you are advised that any information obtained may be used for that purpose. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> <clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org>> On Behalf Of Justin Zinzow Sent: Friday, June 15, 2018 2:14 PM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: [CLC-Discussion] Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? Dear subcommittee: I have a question I would appreciate your input on. Is a Notice to Owner to the Fee Simple Owner required when the contractor is in privity with the lessee? My instinct was immediately "of course." However, section 713.01 defines owner as "a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property." A leasehold interest is an equitable interest in real property. So could it be that a lessee with whom the lienor is in privity is deemed "owner" for NTO purposes such that no notice to owner is required and the lien attaches to the fee simple interest (assuming the lease requires the lessee to make improvements to the property and there is no limitation of lien rights recorded by the fee owner)? Justin R. Zinzow Board Certified Construction Specialist AV Preeminent(r) Rated Attorney P: (727) 787-3121 F: (727) 787-3231 35111 US Highway 19 N, Suite 302 Palm Harbor, Florida 34684 Bio<http://www.zinzowlaw.com/attorney-profiles/Justin-Zinzow/> | Website<http://www.zinzowlaw.com/> | Email<mailto:%20jzinzow@zinzowlaw.com> [cid:image001.jpg@01D0BDB4.D6A53AA0] Construction | Real Estate | Appellate | Business