New Jersey residential lien law arbitration
We hear from time to time that residential (Ma & Pa) construction liens should be treated differently from the typical commercial lien. The next time we hear about that we may want to look at something akin to what New Jersey implemented in January, 2011, copy attached.
I just put it out there for reaction from the committee, without recommendation for or against. If it were to be considered, it would need a little surgery to make it comport with Florida procedure. I just found it interesting and thought I would share.
Regards,
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@mkpalaw.com
Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
Thanks for sharing this with us Larry. Interesting, though fairly
complex, approach to residential construction liens. I wonder if Ma &
Pa in NJ will understand this new process any better than the old one?
To me one of the more interesting provision is the last subsection (13),
which reduces the construction lien amount based upon the net sales
proceeds generated by a sale of the residential ppty. Looks like a way
for individuals and banks to get construction liens more easily removed
to allow them to more easily sell off their residential ppty's that are
financially underwater.
George
George J. Meyer
Attorney At Law
4221 W. Boy Scout Boulevard, Suite 1000
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Larry Leiby
Sent: Tuesday, June 14, 2011 12:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] New Jersey residential lien law
arbitration
We hear from time to time that residential (Ma & Pa) construction liens
should be treated differently from the typical commercial lien. The
next time we hear about that we may want to look at something akin to
what New Jersey implemented in January, 2011, copy attached.
I just put it out there for reaction from the committee, without
recommendation for or against. If it were to be considered, it would
need a little surgery to make it comport with Florida procedure. I just
found it interesting and thought I would share.
Regards,
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@mkpalaw.com
Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
I like the NJ statute in general but it would need a lot of work.
I don't like the AAA requirement. For small liens under 5K, their filing
fee is too high. If arbitration is being used, the parties should be
able to jointly select an arbitrator outside of AAA.
Ed
Ed Kinberg
Fellow, National Contract Management Association
Board Certified, Construction Law Attorney
Government Contract Law, Construction Law, and Business Law
Attorneys At Law
1290 W. Eau Gallie Boulevard
Melbourne, FL 32935
Tel. (321) 259-1910
Fax (321) 259-1996
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Larry Leiby
Sent: Tuesday, June 14, 2011 12:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] New Jersey residential lien law
arbitration
We hear from time to time that residential (Ma & Pa) construction liens
should be treated differently from the typical commercial lien. The
next time we hear about that we may want to look at something akin to
what New Jersey implemented in January, 2011, copy attached.
I just put it out there for reaction from the committee, without
recommendation for or against. If it were to be considered, it would
need a little surgery to make it comport with Florida procedure. I just
found it interesting and thought I would share.
Regards,
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@mkpalaw.com
Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
Larry: As you well know, bifurcating construction liens into residential and non-residential probably hasten the day the legislature abolishes ALL such liens on residential property (as has been proposed numerous times).
In addition, this particular statute (NJ), appears to require that the arbitration proceedings take place BEFORE a lien can even be recorded, and may not require the owner to be a party to the arbitration (I'd not be surprised if it was intended for the owner to be a party, but it's not real clear).
P. S. I'm not supportive.
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Tuesday, June 14, 2011 12:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] New Jersey residential lien law arbitration
We hear from time to time that residential (Ma & Pa) construction liens should be treated differently from the typical commercial lien. The next time we hear about that we may want to look at something akin to what New Jersey implemented in January, 2011, copy attached.
I just put it out there for reaction from the committee, without recommendation for or against. If it were to be considered, it would need a little surgery to make it comport with Florida procedure. I just found it interesting and thought I would share.
Regards,
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@mkpalaw.com
Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
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In actuality, New Jersey has had some version a statute imposing arbitration
and other requirements to perfect a lien for residential construction since
1994. There are 10 to 12 decisions reported from the NJ appellate courts in
which the 1994 law was treated, but it was first taken up by the NJ Supreme
Court in 2000. My understanding from various online commentaries is that
the 2011 enactments are largely directed to addressing concerns brought to
the legislature from the various court decisions interpreting the original
law. Here is a link to the NJ Supreme Court case in which the 1994 law is
interpreted: http://caselaw.findlaw.com/nj-supreme-court/1156366.html
Here is a link to some commentary by a NJ practitioner that (I believe)
gives those of us who are otherwise unfamiliar with the path NJ has followed
some context: http://caselaw.findlaw.com/nj-supreme-court/1156366.html
The first concern that came to mind when I read the legislation was the
costs for arbitration through AAA and I did see that Mr. Martin commented on
this, as well. We have had success in arbitration through AAA, both where
required by contract or imposed by statute (See, Chrysler), but the costs
were in my view outrageous. I do see, however, that AAA adopted specific
rules for New Jersey construction lien arbitration as far back as 1994. The
most recent filing fees by Rule were $175 for a paper submission and $450 if
the parties want the case to be formally heard.
Personally, I am opposed to any lien law revisions that further complicate
perfection and enforcement of liens, particularly in the residential
construction arena. Florida's present lien law quite adequately balances
the interests of owners and lenders, against those of claimants. I agree
with Mr. Dudley. This sort of law looks more like a foot in the door for
legislation that casts labor, subs and materialmen out to sea.
One glaring issue: What if the property owner files a petition in
bankruptcy while the materialman holds a lien claim in his pocket while
awaiting an arbitrators ruling. He just went from secured to a general
unsecured creditor.
Thank you (Mr. Leiby) for bring the interesting material to the floor, but
put me down as a "no" vote.
Regards,
Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Construction Law
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Larry
Leiby
Sent: Tuesday, June 14, 2011 12:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] New Jersey residential lien law arbitration
We hear from time to time that residential (Ma & Pa) construction liens
should be treated differently from the typical commercial lien. The next
time we hear about that we may want to look at something akin to what New
Jersey implemented in January, 2011, copy attached.
I just put it out there for reaction from the committee, without
recommendation for or against. If it were to be considered, it would need a
little surgery to make it comport with Florida procedure. I just found it
interesting and thought I would share.
Regards,
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@mkpalaw.com
Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
