Hi all,

Crazy question of the day (for me at least):

May a contractor file a lien against property titled as below where the residential improvement contract (over $2,500) was only between Husband and Wife and contractor (not Son):

Wife, as 7.5 percent tenant in common with Husband, as 42.5 percent tenant in common with Son, as 50 percent owner with Husband and Son holding their individual interests with right of survivorship only between themselves.

Any input or help would be most appreciated!

Best regards,

Tim

Timothy P. Atkinson*
Oertel, Fernandez, Bryant & Atkinson, P.A.
PO Box 1110, Tallahassee, FL 32302
850.521.0700-w | 850.521.0720-f | 850.544.5304-m

• Board Certified State and Federal
  Government and Administrative Practice

[cid:image002.jpg@01CD765F.22314F40]

Yes.  Jim McCrae

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tim Atkinson
Sent: Thursday, August 09, 2012 6:54 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] construction lien - title question

Hi all,

Crazy question of the day (for me at least):

May a contractor file a lien against property titled as below where the residential improvement contract (over $2,500) was only between Husband and Wife and contractor (not Son):

Wife, as 7.5 percent tenant in common with Husband, as 42.5 percent tenant in common with Son, as 50 percent owner with Husband and Son holding their individual interests with right of survivorship only between themselves.

Any input or help would be most appreciated!

Best regards,

Tim

Timothy P. Atkinson*
Oertel, Fernandez, Bryant & Atkinson, P.A.
PO Box 1110, Tallahassee, FL 32302
850.521.0700-w | 850.521.0720-f | 850.544.5304-m

• Board Certified State and Federal
  Government and Administrative Practice

[cid:image001.jpg@01CD7663.19CC9450]

Off the top of my head I would say yes if you can show that the son was aware of the improvement and did not object.  The argument is that the parents were acting as agents for the son.  If you can't show that the son knew then be sure to add counts under 713.11 and a claim for an equitable lien.  The language on service of documents is helpful. 713.18(4) but it only addresses service.  You have to be concerned with the first sentence of 713.10(1).

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
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[cid:image001.jpg@01CD7676.5B962F00]

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tim Atkinson
Sent: Thursday, August 09, 2012 6:54 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] construction lien - title question

Hi all,

Crazy question of the day (for me at least):

May a contractor file a lien against property titled as below where the residential improvement contract (over $2,500) was only between Husband and Wife and contractor (not Son):

Wife, as 7.5 percent tenant in common with Husband, as 42.5 percent tenant in common with Son, as 50 percent owner with Husband and Son holding their individual interests with right of survivorship only between themselves.

Any input or help would be most appreciated!

Best regards,

Tim

Timothy P. Atkinson*
Oertel, Fernandez, Bryant & Atkinson, P.A.
PO Box 1110, Tallahassee, FL 32302
850.521.0700-w | 850.521.0720-f | 850.544.5304-m

• Board Certified State and Federal
  Government and Administrative Practice

[cid:image002.jpg@01CD7676.5B962F00]

I agree one can lien, but I am curious as to the validity of the title as stated.  Any thoughts?

MICHELLE B. KANE, ESQUIRE
Law Office of Michelle B. Kane, P.A.
P.O. Box 268
Winter Park, Florida 32790
407.254.5450 Telephone
407.536.5043 Facsimile

[cid:image001.jpg@01CC6739.2E699550]
Florida Board Certified Specialist in Construction Law
Florida Supreme Court Certified Appellate Mediator
Florida Supreme Court Certified Circuit Civil Mediator
Florida Supreme Court Certified Family Mediator
Residential Foreclosure Mediator - 9th Judicial Circuit

Confidentiality:  The information contained herein, including attachments is confidential and may be privileged.  If you are not the intended recipient, you may not, and must not read, print, forward, use or disseminate the information contained herein.  Although this correspondence and its attachments are believed to be free of any virus or other defect, it is the responsibility of the receipient to ensure that it is free of viruses or defects and this law firm shall not accept any responsibility by the sender for any loss or damage arising or resulting in any way from its receipt or use.  If you are not the intended recipient of this correspondence, please reply to the sender and include this correspondence and delete from your inbox and your archives and/or discarded file directory.  Any unintended disclosure of legally privileged and or confidential information that may have occurred is inadvertent and does not constitute a waiver of any such privilege or confidentiality.

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, August 09, 2012 9:41 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] construction lien - title question

Off the top of my head I would say yes if you can show that the son was aware of the improvement and did not object.  The argument is that the parents were acting as agents for the son.  If you can't show that the son knew then be sure to add counts under 713.11 and a claim for an equitable lien.  The language on service of documents is helpful. 713.18(4) but it only addresses service.  You have to be concerned with the first sentence of 713.10(1).

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
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[Description: JAMSadr.com.jpg]

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tim Atkinson
Sent: Thursday, August 09, 2012 6:54 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] construction lien - title question

Hi all,

Crazy question of the day (for me at least):

May a contractor file a lien against property titled as below where the residential improvement contract (over $2,500) was only between Husband and Wife and contractor (not Son):

Wife, as 7.5 percent tenant in common with Husband, as 42.5 percent tenant in common with Son, as 50 percent owner with Husband and Son holding their individual interests with right of survivorship only between themselves.

Any input or help would be most appreciated!

Best regards,

Tim

Timothy P. Atkinson*
Oertel, Fernandez, Bryant & Atkinson, P.A.
PO Box 1110, Tallahassee, FL 32302
850.521.0700-w | 850.521.0720-f | 850.544.5304-m

• Board Certified State and Federal
  Government and Administrative Practice

[OFBA 60% SM]

It also would seem that the lien against the parents' portion of the property is valid. So if you can't establish the parents were acting in a agency capacity with respect to their son as suggested by Larry, do a partial lien release of only the son's interest in the ppty, take the parent's interest through foreclosure of your lien and then bring a partition action to require the partitioning of the property based upon the respective interests of the parties' in the ppty. If the ppty can't be partitioned because of its nature, I believe the statute allows for a forced sale of the entire ppty and a splitting of the proceeds from the sale based upon the parties respective interests in the ppty.

George

[Carlton Fields]
George J. Meyer
Attorney at Law

4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
Direct:  813.229.4140 | Fax:  813.229.4133

gmeyer@carltonfields.commailto:gmeyer@carltonfields.com | www.carltonfields.comhttp://www.carltonfields.com
biohttp://www.carltonfields.com/gmeyer/ | vcardhttp://www.carltonfields.com/load.vcf?type=atty&id=c92aac8a-d713-42f8-bd11-3a5101f160db

From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, August 09, 2012 9:41 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] construction lien - title question

Off the top of my head I would say yes if you can show that the son was aware of the improvement and did not object.  The argument is that the parents were acting as agents for the son.  If you can't show that the son knew then be sure to add counts under 713.11 and a claim for an equitable lien.  The language on service of documents is helpful. 713.18(4) but it only addresses service.  You have to be concerned with the first sentence of 713.10(1).

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.commailto:leiby@mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[Description: JAMSadr.com.jpg]

From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tim Atkinson
Sent: Thursday, August 09, 2012 6:54 PM
To: constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] construction lien - title question

Hi all,

Crazy question of the day (for me at least):

May a contractor file a lien against property titled as below where the residential improvement contract (over $2,500) was only between Husband and Wife and contractor (not Son):

Wife, as 7.5 percent tenant in common with Husband, as 42.5 percent tenant in common with Son, as 50 percent owner with Husband and Son holding their individual interests with right of survivorship only between themselves.

Any input or help would be most appreciated!

Best regards,

Tim

Timothy P. Atkinson*
Oertel, Fernandez, Bryant & Atkinson, P.A.
PO Box 1110, Tallahassee, FL 32302
850.521.0700-w | 850.521.0720-f | 850.544.5304-m

• Board Certified State and Federal
  Government and Administrative Practice

[OFBA 60% SM]