713.10 lien for private leasehold on public land
...and for writing them!
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Thursday, February 02, 2012 4:08 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
Thank you Larry. I think we should get CLE credit for reading these emails!
[Logo]
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.comhttp://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures
This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, February 02, 2012 3:45 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there). The statutory reason that you can't lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01. The definition of real property also excludes governmentally owned property. This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.
An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property. Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property. You want to be careful when you prepare the lien to only seek it against the leasehold. Also a lien on a leasehold is typically only as valuable as the tenant is collectable.
Go get em.
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. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)? The lessee contracted for the improvements which were required by the lease agreement. The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: "However, there may be private leasehold interests on governmental property that are lienable." I have found no other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.commailto:rperez@mcper.com
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
People. People. Let us not forget what day it is. It is Groundhog's
Day!! 500 or so of my closest friends are on their way to a little
party I throw every year. So, I say let's suspend the emails about lien
rights until tomorrow and instead think about "the meaning of the
season" - a furry marmot and pounding drinks. Happy GHD!!! Arnie.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Thursday, February 02, 2012 4:44 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leaseholdon
public land
...and for writing them!
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com
http://www.hklaw.com/
Add to address book http://www.hklaw.com/vcard.aspx?user=frdudley |
View professional biography http://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Tracye
Sent: Thursday, February 02, 2012 4:08 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
on public land
Thank you Larry. I think we should get CLE credit for reading these
emails!
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida 33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com http://www.solovelawfirm.com/
Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures
This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Larry Leiby
Sent: Thursday, February 02, 2012 3:45 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
on public land
The answer is in the definitions in 713.01 (and if you are referring to
8:3 of my book, it is set out there). The statutory reason that you
can't lien publicly owned property is because a governmental owner is
not within the definition of owner in 713.01. The definition of real
property also excludes governmentally owned property. This is intended
to keep governmentally owned property out of the lien law because a
government must usually go through an election to subject public owned
property to liens, e.g., financing bond issues.
An owner is also defined as one having an interest in the property and
who enters into a contract for the improvement of the real property.
Thus there is no reason that you cannot have a lien on a private
leasehold interest that sits on public property. You want to be careful
when you prepare the lien to only seek it against the leasehold. Also a
lien on a leasehold is typically only as valuable as the tenant is
collectable.
Go get em.
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. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] 713.10 lien for private leasehold on
public land
Does anyone have any authority for a construction lien on a leasehold
where the lessee is a private party but the lessor is a municipality
(i.e. on public land)? The lessee contracted for the improvements which
were required by the lease agreement. The only authority I have found
is Section 8.3 of the Fla. Prac. Construction Law Manual which states in
the first paragraph, in part: "However, there may be private leasehold
interests on governmental property that are lienable." I have found no
other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS
IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS
COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY
HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF
(I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR
(II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY
TAX-RELATED MATTER HEREIN.
Arnold D. Tritt, Jr.
Board Certified Construction Attorney
707 Peninsular Place
Jacksonville, Florida 32204
Phone (904) 354-5200
Facsimile (904) 354-5256
Arnold.Tritt@atritt.com
www.atritt.com
CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients . If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise . Unauthorized interception of this e-mail is a violation of federal criminal law.
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NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and
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privilege that may be available to protect confidentiality.
Attached is a form of lien I filed some years back against the leasehold
interest of a tenant on public airport authority property. It is in the
public record. My recollection is that I carefully drafted it to insure
that the interest lien'd was no more than the interest the tenant held
by a recorded lease.
As I think others have pointed out, it is fortunate that we never had to
actually secure payment for the work by foreclosing the lien. We never
considered it particularly likely that foreclosing and putting that
interest up for public sale would actually accomplish the goal of
payment to the contractor. However, recording it and furnishing copies
to the interested parties as required by the statute did seem
motivational to the developer.
Regards,
G. Elliott
Gregory T. Elliott
/ELLIOTT - BERGER, P. A.///
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)*
Board Certified In Construction Law
*NOTICE OF CONFIDENTIALITY:***This message and its attachments are
intended solely for the use of the addressee. In addition, this message
and the attachments may contain information that is confidential,
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On 2/2/2012 2:55 PM, Rafael Perez wrote:
Does anyone have any authority for a construction lien on a leasehold
where the lessee is a private party but the lessor is a municipality
(i.e. on public land)? The lessee contracted for the improvements
which were required by the lease agreement. The only authority I have
found is Section 8.3 of the Fla. Prac. Construction Law Manual which
states in the first paragraph, in part: "However, there may be private
leasehold interests on governmental property that are lienable." I
have found no other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.com mailto:rperez@mcper.com
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
On afterthought, I guess I should follow-up by noting that I emphasized
it was a "recorded lease" because my recollection is that the statute
also provides that where a landlord (private or public) has taken care
to record the lease, and the recorded lease includes language
prohibiting the imposition of liens for improvements contracted by the
tenant, then there are no lien rights. I haven't gone back to check the
statute recently, but if my recollection is correct it obviously puts
the burden on the contractor to check public records before inking the
contract to improve leasehold property.
G. Elliott
Gregory T. Elliott
/ELLIOTT - BERGER, P. A.///
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)*
Board Certified In Construction Law
*NOTICE OF CONFIDENTIALITY:***This message and its attachments are
intended solely for the use of the addressee. In addition, this message
and the attachments may contain information that is confidential,
privileged and exempt from disclosure under applicable law. If you are
not the intended recipient of this message, you are prohibited from
reading, disclosing, reproducing, distributing, disseminating or
otherwise using this transmission. Delivery of this message to any
person other than the intended recipient is not intended to waive any
right or privilege. If you have received this message in error, please
promptly notify the sender by reply E-mail and immediately delete this
message from your system.
On 2/2/2012 2:55 PM, Rafael Perez wrote:
Does anyone have any authority for a construction lien on a leasehold
where the lessee is a private party but the lessor is a municipality
(i.e. on public land)? The lessee contracted for the improvements
which were required by the lease agreement. The only authority I have
found is Section 8.3 of the Fla. Prac. Construction Law Manual which
states in the first paragraph, in part: "However, there may be private
leasehold interests on governmental property that are lienable." I
have found no other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.com mailto:rperez@mcper.com
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
As we are now discussing airport leaseholds, I would be remiss if I didn't also point out that many airports have use restrictions on some portions of their real property. The restrictions, which could arise from various sources, including the type of procurement used fo form the lease, may limit the use of the property to aviation, avionics, and support services for aviation and avionics.
Best to all,
Deb
Deborah Bovarnick Mastin
Florida Bar Board Certified in Construction Law
Florida Certified Circuit Court Mediator
Florida Qualified Arbitrator
305.505.7448 (cell)
On Feb 3, 2012, at 3:04 AM, Greg Elliott wrote:
Attached is a form of lien I filed some years back against the leasehold interest of a tenant on public airport authority property. It is in the public record. My recollection is that I carefully drafted it to insure that the interest lien'd was no more than the interest the tenant held by a recorded lease.
As I think others have pointed out, it is fortunate that we never had to actually secure payment for the work by foreclosing the lien. We never considered it particularly likely that foreclosing and putting that interest up for public sale would actually accomplish the goal of payment to the contractor. However, recording it and furnishing copies to the interested parties as required by the statute did seem motivational to the developer.
Regards,
G. Elliott
Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law
<ConstructionLaw 8%.jpg>
NOTICE OF CONFIDENTIALITY: This message and its attachments are intended solely for the use of the addressee. In addition, this message and the attachments may contain information that is confidential, privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error, please promptly notify the sender by reply E-mail and immediately delete this message from your system.
On 2/2/2012 2:55 PM, Rafael Perez wrote:
Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)? The lessee contracted for the improvements which were required by the lease agreement. The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: “However, there may be private leasehold interests on governmental property that are lienable.” I have found no other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.com
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
<leasehold lien public.doc>_______________________________________________
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
Can you send a copy of the Order on your motion for SJ?
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/
Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
Steve Pickert and I had such a case many years ago, wherein the City of Coral Springs entered into a renewable "Concession Agreement" (i.e., a lease) for a private party to build an ice-skating rink on City property. Under the Concession Agreement, the concessionaire/lessee actually owned the improvements subject to the City's reversionary interest at the conclusion of the lease. The concessionaire/lessee didn't pay the contractor and, in fact, sold its interest during construction. The contractor, our client, recorded a lien against the property, and both the concessionaire/lessee and the purchaser said the property was not lienable. We moved for and were granted summary judgment in our favor on that issue. Attached is the motion/brief, which is a matter of public record and may be helpful. Presumably much of the law has changed/evolved over the past 14 or so years.
Bryan Capps
From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
The answer is in the definitions in 713.01 (and if you are referring to 8:3 of my book, it is set out there). The statutory reason that you can't lien publicly owned property is because a governmental owner is not within the definition of owner in 713.01. The definition of real property also excludes governmentally owned property. This is intended to keep governmentally owned property out of the lien law because a government must usually go through an election to subject public owned property to liens, e.g., financing bond issues.
An owner is also defined as one having an interest in the property and who enters into a contract for the improvement of the real property. Thus there is no reason that you cannot have a lien on a private leasehold interest that sits on public property. You want to be careful when you prepare the lien to only seek it against the leasehold. Also a lien on a leasehold is typically only as valuable as the tenant is collectable.
Go get em.
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. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] 713.10 lien for private leasehold on public land
Does anyone have any authority for a construction lien on a leasehold where the lessee is a private party but the lessor is a municipality (i.e. on public land)? The lessee contracted for the improvements which were required by the lease agreement. The only authority I have found is Section 8.3 of the Fla. Prac. Construction Law Manual which states in the first paragraph, in part: "However, there may be private leasehold interests on governmental property that are lienable." I have found no other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
rperez@mcper.commailto:rperez@mcper.com
IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
Why not enforce your bond remedy?
Note the first sentence of 255.05(1)(a); the recent amendments creating
existing language requires private party to obtain bond(s) for work that
private party contracts for as improvement to public property or a Public
Work . To understand better the meaning of the amendment, do research on
use of "public work"; that wording is not limited to " public property" or
there would be no disjunctive "or". A very early case used "public work" as
private property of a railroad that would serve the public; that case did
not deal with lien or bond, but it illustrates how general "public work"
means in current version of statute. A more interesting issue is defining
the remedy for non-compliance against the public body or the private party
that failed to obtain bonds. In some past cases the commissioners or council
members were liable to person or entity that by law had right to rely upon
existence of the required bonds. Who was advising the public body; the
private party. Does the license or lease have an indemnity clause in favor
of public entity? Have fun.
JG Thresher
813-229-7744
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
Can you send a copy of the Order on your motion for SJ?
Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
mailto:fred.dudley@hklaw.com fred.dudley@hklaw.com |
http://www.hklaw.com/ www.hklaw.com
http://www.hklaw.com/vcard.aspx?user=frdudley Add to address book |
http://www.hklaw.com/id77/biosfrdudley View professional biography
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bryan L.
Capps
Sent: Thursday, February 02, 2012 4:34 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
Steve Pickert and I had such a case many years ago, wherein the City of
Coral Springs entered into a renewable "Concession Agreement" (i.e., a
lease) for a private party to build an ice-skating rink on City property.
Under the Concession Agreement, the concessionaire/lessee actually owned the
improvements subject to the City's reversionary interest at the conclusion
of the lease. The concessionaire/lessee didn't pay the contractor and, in
fact, sold its interest during construction. The contractor, our client,
recorded a lien against the property, and both the concessionaire/lessee and
the purchaser said the property was not lienable. We moved for and were
granted summary judgment in our favor on that issue. Attached is the
motion/brief, which is a matter of public record and may be helpful.
Presumably much of the law has changed/evolved over the past 14 or so years.
Bryan Capps
From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Larry Leiby
Sent: Thu 2/2/2012 3:44 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
The answer is in the definitions in 713.01 (and if you are referring to 8:3
of my book, it is set out there). The statutory reason that you can't lien
publicly owned property is because a governmental owner is not within the
definition of owner in 713.01. The definition of real property also
excludes governmentally owned property. This is intended to keep
governmentally owned property out of the lien law because a government must
usually go through an election to subject public owned property to liens,
e.g., financing bond issues.
An owner is also defined as one having an interest in the property and who
enters into a contract for the improvement of the real property. Thus there
is no reason that you cannot have a lien on a private leasehold interest
that sits on public property. You want to be careful when you prepare the
lien to only seek it against the leasehold. Also a lien on a leasehold is
typically only as valuable as the tenant is collectable.
Go get em.
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. S. Ct. Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Rafael
Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-construction law] 713.10 lien for private leasehold on
public land
Does anyone have any authority for a construction lien on a leasehold where
the lessee is a private party but the lessor is a municipality (i.e. on
public land)? The lessee contracted for the improvements which were
required by the lease agreement. The only authority I have found is Section
8.3 of the Fla. Prac. Construction Law Manual which states in the first
paragraph, in part: "However, there may be private leasehold interests on
governmental property that are lienable." I have found no other authority.
Rafael A. Perez
Board Certified Construction Attorney
McArdle and Perez, P.A.
806 S. Douglas Road, Suite 625
Coral Gables, Florida 33134
305-442-2214
Fax 305-442-2291
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