Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
Joseph: Your meaning is not at all clear. How would a statutory
chapter 255.05 payment bond even be required for an improvement
contracted and paid for by a private entity leasing public land? The
purpose of 255.05, as I had understood it, was to secure payment for
subcontractors supplying labor, services and materials to governmental
entities, not private parties.
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Joseph G. Thresher
Sent: Tuesday, February 07, 2012 12:10 PM
To: 'RPPTL constructionlaw'; 'Danay Diaz'
Subject: Re: [RPPTL-constructionlaw]713.10 lien for private leasehold
onpublic land
Not if the amendment by 2007-221 laws of Florida are interpreted
consistent with purpose of 255.05.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Peyton White Lumpkin
Sent: Monday, February 06, 2012 3:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
A 255 bond would not apply to a ground lease of public vacant property
being developed by a private developer, with title to the improvements
in the developer until the end of the lease when they revert back to the
public entity, correct?
Peyton White Lumpkin, Esq., LEED AP
The Lumpkin Law Firm P.A.
2655 Le Jeune Road
Fifth Floor
Coral Gables, FL 33134
Tel: (305) 667-1808
Fax: (305) 444-5366
peytonwhitelumpkin@bellsouth.net
thelumpkinlawfirm.com
Confidentiality Notice: This e-mail message, including any attachments,
is for the sole use of the intended recipient and may contain
confidential and privileged information. Any unauthorized review, use,
disclosure or distribution is prohibited. If you are not the intended
recipient, please contact the sender by reply e-mail and destroy all
copies of the original message, including all attachments.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
There's also an old case out of north Florida holding county
commissioners PERSONALLY liable for failing to require a 255 bond!
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
Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
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
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
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
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.
To be precise (copying and pasting from an old brief), The purpose of
the statute requiring a contractor's bond on public works contracts is
to protect laborers and materialmen on projects on which they can
acquire no lien. State of Florida f/b/o Westinghouse Electric Corp. v.
Clutter Construction Corp., 132 So.2d 21 (Fla. 3d DCA 1961). ". . .
As held in Fulghum v. State, 92 Fla. 662, 109 So. 644, it was the broad
legislative intent to afford those supplying labor and materials on
public works projects a means of protection in lieu of the lien afforded
to them on private work as provided by other statutes." Id. at 22,
citing Fulghum v. State, 92 Fla. 662, 109 So. 644 (1926) . F lorida
Statutes §255.05 (2005) "is remedial in nature and therefor, entitled to
a liberal construction, within reason, to effect its intended purpose.
Ostensibly (and with limitations) a "claimant" could acquire a lien
against the leasehold interest of the contracting "tenant" (and no
more). In my view the protection of such a lien is only illusory.
What is the likelihood that a public sale after foreclosure will result
in proceeds to the claimant. . . Then what does the claimant do with
his brand new "leasehold interest". Pay rent if the landlord will have him.
GTE
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 2/7/2012 12:24 PM, Reese J. Henderson, Jr. wrote:
Joseph: Your meaning is not at all clear. How would a statutory
chapter 255.05 payment bond even be required for an improvement
contracted and paid for by a private entity leasing public land? The
purpose of 255.05, as I had understood it, was to secure payment for
subcontractors supplying labor, services and materials to governmental
entities, not private parties.
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
GRAY*| ROBINSON* http://www.gray-robinson.com/
ATTORNEYS AT LAW
**
This e-mail is intended only for the individual(s) or entity(s) named
within the message. This e-mail might contain legally privileged and
confidential information. If you properly received this e-mail as a
client or retained expert, please hold it in confidence to protect the
attorney-client or work product privileges. Should the intended
recipient forward or disclose this message to another person or party,
that action could constitute a waiver of the attorney-client
privilege. If the reader of this message is not the intended
recipient, or the agent responsible to deliver it to the intended
recipient, you are hereby notified that any review, dissemination,
distribution or copying of this communication is prohibited by the
sender and to do so might constitute a violation of the Electronic
Communications Privacy Act, 18 U.S.C. section 2510-2521. If this
communication was received in error we apologize for the intrusion.
Please notify us by reply e-mail and delete the original message
without reading same. Nothing in this e-mail message shall, in and of
itself, create an attorney-client relationship with the sender.
Disclaimer under Circular 230: Any statements regarding tax matters
made herein, including any attachments, are not formal tax opinions by
this firm, cannot be relied upon or used by any person to avoid tax
penalties, and are not intended to be used or referred to in any
marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector
and is attempting to collect a debt and any information provided will
be used for that purpose.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*Joseph G. Thresher
Sent: Tuesday, February 07, 2012 12:10 PM
To: 'RPPTL constructionlaw'; 'Danay Diaz'
Subject: Re: [RPPTL-constructionlaw]713.10 lien for private
leasehold onpublic land
Not if the amendment by 2007-221 laws of Florida are interpreted
consistent with purpose of 255.05.
*From:*constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*Peyton White Lumpkin
Sent: Monday, February 06, 2012 3:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private
leasehold onpublic land
A 255 bond would not apply to a ground lease of public vacant
property being developed by a private developer, with title to the
improvements in the developer until the end of the lease when they
revert back to the public entity, correct?
Peyton White Lumpkin, Esq., LEED AP
The Lumpkin Law Firm P.A.
2655 Le Jeune Road
Fifth Floor
Coral Gables, FL 33134
Tel: (305) 667-1808
Fax: (305) 444-5366
_peytonwhitelumpkin@bellsouth.net
mailto:peytonwhitelumpkin@bellsouth.net_
__
thelumpkinlawfirm.com
Confidentiality Notice: This e-mail message, including any
attachments, is for the sole use of the intended recipient and may
contain confidential and privileged information. Any unauthorized
review, use, disclosure or distribution is prohibited. If you are not
the intended recipient, please contact the sender by reply e-mail and
destroy all copies of the original message, including all attachments.
*From:*constructionlaw-bounces@lists.flabarrpptl.org
mailto:constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
mailto:constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private
leasehold onpublic land
There's also an old case out of north Florida holding county
commissioners PERSONALLY liable for failing to require a 255 bond!
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
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private
leasehold onpublic land
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
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.org
mailto: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
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
[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
mailto: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 mailto: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
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*Rafael Perez
Sent: Thursday, February 02, 2012 2:56 PM
To: constructionlaw@lists.flabarrpptl.org
mailto: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.com mailto: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.
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
If you diagramed sentences in grade school, diagram 255.05(1)(a). That yields conclusion I offered for interpretation of 255.05(1)(a). The person contracting for improvement with a private entity to be constructed upon public property or public work “shall be required” to get and record payment and performance bond. There are many cases that explain the purpose of 255.05 as to supply a remedy because the lien laws don’t supply remedy for lienors when improvement is to public work. Both the grammatical structure and purpose for the amendment was to make private participants to construction to be accountable for security for payment because lien remedies are insufficient on public property. There is no “right” to contract for improvements for benefit of private parties. The amendment in 2007 merely corrects a gap in what has always been intention under 255.05 to protect Lienors.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Tuesday, February 07, 2012 12:25 PM
To: RPPTL constructionlaw; Danay Diaz
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
Joseph: Your meaning is not at all clear. How would a statutory chapter 255.05 payment bond even be required for an improvement contracted and paid for by a private entity leasing public land? The purpose of 255.05, as I had understood it, was to secure payment for subcontractors supplying labor, services and materials to governmental entities, not private parties.
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
http://www.gray-robinson.com/ GRAY | ROBINSON
ATTORNEYS AT LAW
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Tuesday, February 07, 2012 12:10 PM
To: 'RPPTL constructionlaw'; 'Danay Diaz'
Subject: Re: [RPPTL-constructionlaw]713.10 lien for private leasehold onpublic land
Not if the amendment by 2007-221 laws of Florida are interpreted consistent with purpose of 255.05.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Peyton White Lumpkin
Sent: Monday, February 06, 2012 3:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
A 255 bond would not apply to a ground lease of public vacant property being developed by a private developer, with title to the improvements in the developer until the end of the lease when they revert back to the public entity, correct?
Peyton White Lumpkin, Esq., LEED AP
The Lumpkin Law Firm P.A.
2655 Le Jeune Road
Fifth Floor
Coral Gables, FL 33134
Tel: (305) 667-1808
Fax: (305) 444-5366
peytonwhitelumpkin@bellsouth.net
thelumpkinlawfirm.com
Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message, including all attachments.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
There’s also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!
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 Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
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
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.
We need to remember that foreclosure is not the only lien remedy. Look at 85.011 and 85.021.
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 Greg Elliott
Sent: Tuesday, February 07, 2012 1:32 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
To be precise (copying and pasting from an old brief), The purpose of the statute requiring a contractor's bond on public works contracts is to protect laborers and materialmen on projects on which they can acquire no lien. State of Florida f/b/o Westinghouse Electric Corp. v. Clutter Construction Corp., 132 So.2d 21 (Fla. 3d DCA 1961). ". . . As held in Fulghum v. State, 92 Fla. 662, 109 So. 644, it was the broad legislative intent to afford those supplying labor and materials on public works projects a means of protection in lieu of the lien afforded to them on private work as provided by other statutes." Id. at 22, citing Fulghum v. State, 92 Fla. 662, 109 So. 644 (1926) . F lorida Statutes §255.05 (2005) "is remedial in nature and therefor, entitled to a liberal construction, within reason, to effect its intended purpose.
Ostensibly (and with limitations) a "claimant" could acquire a lien against the leasehold interest of the contracting "tenant" (and no more). In my view the protection of such a lien is only illusory. What is the likelihood that a public sale after foreclosure will result in proceeds to the claimant. . . Then what does the claimant do with his brand new "leasehold interest". Pay rent if the landlord will have him.
GTE
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
[cid:image001.jpg@01CCE5AA.97D91890]
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 2/7/2012 12:24 PM, Reese J. Henderson, Jr. wrote:
Joseph: Your meaning is not at all clear. How would a statutory chapter 255.05 payment bond even be required for an improvement contracted and paid for by a private entity leasing public land? The purpose of 255.05, as I had understood it, was to secure payment for subcontractors supplying labor, services and materials to governmental entities, not private parties.
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.commailto:Reese.Henderson@gray-robinson.com
GRAY | ROBINSONhttp://www.gray-robinson.com/
ATTORNEYS AT LAW
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Tuesday, February 07, 2012 12:10 PM
To: 'RPPTL constructionlaw'; 'Danay Diaz'
Subject: Re: [RPPTL-constructionlaw]713.10 lien for private leasehold onpublic land
Not if the amendment by 2007-221 laws of Florida are interpreted consistent with purpose of 255.05.
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Peyton White Lumpkin
Sent: Monday, February 06, 2012 3:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
A 255 bond would not apply to a ground lease of public vacant property being developed by a private developer, with title to the improvements in the developer until the end of the lease when they revert back to the public entity, correct?
Peyton White Lumpkin, Esq., LEED AP
The Lumpkin Law Firm P.A.
2655 Le Jeune Road
Fifth Floor
Coral Gables, FL 33134
Tel: (305) 667-1808
Fax: (305) 444-5366
peytonwhitelumpkin@bellsouth.netmailto:peytonwhitelumpkin@bellsouth.net
thelumpkinlawfirm.com
Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message, including all attachments.
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
There's also an old case out of north Florida holding county commissioners PERSONALLY liable for failing to require a 255 bond!
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.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold onpublic land
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.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
Sent: Friday, February 03, 2012 2:25 PM
To: constructionlaw@lists.flabarrpptl.orgmailto: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
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.orgmailto: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.orgmailto: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.commailto: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.orgmailto: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.orgmailto: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
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.
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
I can see you are having fun. With copies of the messages, there is at
least a luncheon seminar outlined for detailed development. Add some
procurement issues for 255.103 and a ½ day seminar is waiting for a
volunteer. On that procurement topic of slicing up scope to avoid bonds,
similar issues arise under 287.055 for design, and 255.103 for CM or PM
management.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Tuesday, February 07, 2012 1:32 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
To be precise (copying and pasting from an old brief), The purpose of the
statute requiring a contractors bond on public works contracts is to
protect laborers and materialmen on projects on which they can acquire no
lien. State of Florida f/b/o Westinghouse Electric Corp. v. Clutter
Construction Corp., 132 So.2d 21 (Fla. 3d DCA 1961). . . . As held in
Fulghum v. State, 92 Fla. 662, 109 So. 644, it was the broad legislative
intent to afford those supplying labor and materials on public works
projects a means of protection in lieu of the lien afforded to them on
private work as provided by other statutes. Id. at 22, citing Fulghum v.
State, 92 Fla. 662, 109 So. 644 (1926) . F lorida Statutes §255.05 (2005)
is remedial in nature and therefor, entitled to a liberal construction,
within reason, to effect its intended purpose.
Ostensibly (and with limitations) a "claimant" could acquire a lien against
the leasehold interest of the contracting "tenant" (and no more). In my
view the protection of such a lien is only illusory. What is the
likelihood that a public sale after foreclosure will result in proceeds to
the claimant. . . Then what does the claimant do with his brand new
"leasehold interest". Pay rent if the landlord will have him.
GTE
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 2/7/2012 12:24 PM, Reese J. Henderson, Jr. wrote:
Joseph: Your meaning is not at all clear. How would a statutory chapter
255.05 payment bond even be required for an improvement contracted and paid
for by a private entity leasing public land? The purpose of 255.05, as I
had understood it, was to secure payment for subcontractors supplying labor,
services and materials to governmental entities, not private parties.
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
http://www.gray-robinson.com/ GRAY | ROBINSON
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Joseph
G. Thresher
Sent: Tuesday, February 07, 2012 12:10 PM
To: 'RPPTL constructionlaw'; 'Danay Diaz'
Subject: Re: [RPPTL-constructionlaw]713.10 lien for private leasehold
onpublic land
Not if the amendment by 2007-221 laws of Florida are interpreted consistent
with purpose of 255.05.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Peyton
White Lumpkin
Sent: Monday, February 06, 2012 3:35 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
A 255 bond would not apply to a ground lease of public vacant property
being developed by a private developer, with title to the improvements in
the developer until the end of the lease when they revert back to the public
entity, correct?
Peyton White Lumpkin, Esq., LEED AP
The Lumpkin Law Firm P.A.
2655 Le Jeune Road
Fifth Floor
Coral Gables, FL 33134
Tel: (305) 667-1808
Fax: (305) 444-5366
peytonwhitelumpkin@bellsouth.net
thelumpkinlawfirm.com
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Monday, February 06, 2012 3:04 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
Theres also an old case out of north Florida holding county commissioners
PERSONALLY liable for failing to require a 255 bond!
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 Joseph
G. Thresher
Sent: Monday, February 06, 2012 2:44 PM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] 713.10 lien for private leasehold
onpublic land
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 |
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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 cant 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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