I have a contractor client that has signed an AIA-A133 for a project in Central Florida. The contractor’s client is the lessee of a long term ground lease upon which the project will be constructed.  The ground lease has no prohibition on liens and requires construction of the project.  Precon work has commenced under the A133.  The GMP Amendment (indicating commencement of the construction phase) has not been prepared or signed. To preserve its lien rights against the fee simple interest of the Landlord, does the contractor need to serve a NTO on the Landlord within 45 days of commencing precon work or can that wait until the construction phase commences with the execution of the GMP Amendment.

[Burr & Forman LLP Logo]
AL  • DE • FL  • GA
MS  • NC • SC  • TN

Troy K. Smith  •  Partner
Burr & Forman LLP
50 North Laura Street , Suite 3000, Jacksonville, Florida 32202
direct 904-232-7232 • fax 904-212-2068 • main
tsmith@burr.commailto:tsmith@burr.com • www.burr.comhttp://www.burr.com

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I think it would depend on whether or not the pre-con services include anything that would be considered “improving” the property under 713.01(14). If the contractor is just looking at the design documents and pricing, then probably not. But if the contractor is out there digging (“excavating”) or other things that might be an “improvement,” then he would need to serve the NTO.

Sounds like the “pith of the lease” rule clearly applies – that the lease “requires construction of the project….” – but of course the lease not prohibiting liens helps too.

Bruce Partington | Shareholder
bpartington@clarkpartington.com | (850) 432-1399callto:(850)%20432-1399

CLARK PARTINGTON
Office: (850) 434-9200 | Fax: (850) 432-7340
125 East Intendencia Street, 4th Floor
Pensacola, Florida 32502
clarkpartington.comhttp://clarkpartington.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Friday, October 9, 2020 11:32 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] FW: NTO Timing - A133 Precon Services

I have a contractor client that has signed an AIA-A133 for a project in Central Florida. The contractor’s client is the lessee of a long term ground lease upon which the project will be constructed.  The ground lease has no prohibition on liens and requires construction of the project.  Precon work has commenced under the A133.  The GMP Amendment (indicating commencement of the construction phase) has not been prepared or signed. To preserve its lien rights against the fee simple interest of the Landlord, does the contractor need to serve a NTO on the Landlord within 45 days of commencing precon work or can that wait until the construction phase commences with the execution of the GMP Amendment.

[Burr & Forman LLP Logo]

        AL  • DE • FL  • GA
        MS  • NC • SC  • TN

Troy K. Smith  •  Partner
Burr & Forman LLP

50 North Laura Street , Suite 3000, Jacksonville, Florida 32202
direct 904-232-7232 • fax 904-212-2068 • main
tsmith@burr.commailto:tsmith@burr.com • https://link.edgepilot.com/s/4a3c3c95/jpP5IaWowkKizth_78hKNw?u=http://www.burr.com/

360 Attorneys. 19 Offices. 1 Firm. Southeastern Strong.

The information contained in this email is intended for the individual or entity above. If you are not the intended recipient, please do not read, copy, use, forward or disclose this communication to others; also, please notify the sender by replying to this message, and then delete this message from your system. Thank you.

Interesting question.  IMO, a contractor (as opposed to an A/E) during the design phase performing precon services under an A133 (e.g.., VE design reviews, constructability reviews, and pricing exercises) is not performing a  lienable service as a contractor since it is not building any permanent improvement on Owner’s property.  Assuming no early release or early start permit outside of the GMP Amendment, I agree that the GMP Amendment would function as the stand in for the normal A101 or A102 construction contract and actual  construction phase services would flow from the execution of that document.  As far as serving the NTO, many contractors improving leasehold space do not serve the NTO and operate on the belief that, in the absence of a 713.10 recorded instrument, they enjoy lien rights against the fee simple interest.  I would be interested if anyone has any caselaw on the subject of whether a contractor must serve a NTO on a  fee owner in order to enjoy lien rights against the fee simple interest in instances where the GC/CM has a contract with the tenant but not the fee owner and no 713.10 instrument has been recorded (and improvements are the “pith” of the lease).  It’s been years since I last reviewed pith of the lease caselaw and I don’t remember seeing discussions of the GC having to serve a NTO on the fee owner in order to have lien rights (where improvements are the pith of the lease and no 713.10 instrument recorded).

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
Emailmailto:Michael.Gibbons@lowndes-law.com | Websitehttp://lowndes-law.com | Bio<lowndes-law.com/people/Michael-Gibbons> | VCardhttps://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64

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LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Friday, October 9, 2020 12:32 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] FW: NTO Timing - A133 Precon Services

CAUTION: THIS IS AN EXTERNAL EMAIL

I have a contractor client that has signed an AIA-A133 for a project in Central Florida. The contractor’s client is the lessee of a long term ground lease upon which the project will be constructed.  The ground lease has no prohibition on liens and requires construction of the project.  Precon work has commenced under the A133.  The GMP Amendment (indicating commencement of the construction phase) has not been prepared or signed. To preserve its lien rights against the fee simple interest of the Landlord, does the contractor need to serve a NTO on the Landlord within 45 days of commencing precon work or can that wait until the construction phase commences with the execution of the GMP Amendment.

[Burr & Forman LLP Logo]
AL  • DE • FL  • GA
MS  • NC • SC  • TN
Troy K. Smith  •  Partner
Burr & Forman LLP
50 North Laura Street , Suite 3000, Jacksonville, Florida 32202
direct 904-232-7232 • fax 904-212-2068 • main
tsmith@burr.commailto:tsmith@burr.com • www.burr.comhttps://protect-us.mimecast.com/s/-zR7CjROYkInY2zjFRTMHQ

360 Attorneys. 19 Offices. 1 Firm. Southeastern Strong.
The information contained in this email is intended for the individual or entity above. If you are not the intended recipient, please do not read, copy, use, forward or disclose this communication to others; also, please notify the sender by replying to this message, and then delete this message from your system. Thank you.

How the statute is currently written there is no requirement to serve the nto on the landlord. 

Sincerely, Barry Kalmanson500 N Maitland AvenueSuite 305 Maitland, Fl. 32751407-645-4500 x 215 www.barrykalmanson.com

-----Original Message-----
From: RPPTL CLC-Discussion clc-discussion@lists.flabarrpptl.org
To: clc-discussion@lists.flabarrpptl.org clc-discussion@lists.flabarrpptl.org
Sent: Fri, Oct 9, 2020 12:45 pm
Subject: Re: [CLC-Discussion] FW: NTO Timing - A133 Precon Services

#yiv6642812109 #yiv6642812109 -- _filtered {} _filtered {}#yiv6642812109 #yiv6642812109 p.yiv6642812109MsoNormal, #yiv6642812109 li.yiv6642812109MsoNormal, #yiv6642812109 div.yiv6642812109MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:11.0pt;font-family:sans-serif;}#yiv6642812109 a:link, #yiv6642812109 span.yiv6642812109MsoHyperlink {color:#0563C1;text-decoration:underline;}#yiv6642812109 a:visited, #yiv6642812109 span.yiv6642812109MsoHyperlinkFollowed {color:#954F72;text-decoration:underline;}#yiv6642812109 p {margin-right:0in;margin-left:0in;font-size:12.0pt;font-family:New serif;}#yiv6642812109 p.yiv6642812109msonormal0, #yiv6642812109 li.yiv6642812109msonormal0, #yiv6642812109 div.yiv6642812109msonormal0 {margin-right:0in;margin-left:0in;font-size:12.0pt;font-family:New serif;}#yiv6642812109 p.yiv6642812109imprintuniqueid, #yiv6642812109 li.yiv6642812109imprintuniqueid, #yiv6642812109 div.yiv6642812109imprintuniqueid {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;font-family:New serif;}#yiv6642812109 span.yiv6642812109EmailStyle20 {font-family:sans-serif;color:windowtext;}#yiv6642812109 span.yiv6642812109EmailStyle21 {font-family:sans-serif;color:#1F497D;}#yiv6642812109 span.yiv6642812109EmailStyle22 {font-family:sans-serif;color:#1F497D;}#yiv6642812109 span.yiv6642812109EmailStyle23 {font-family:sans-serif;color:#1F497D;}#yiv6642812109 span.yiv6642812109EmailStyle24 {font-family:sans-serif;color:#1F497D;}#yiv6642812109 span.yiv6642812109EmailStyle25 {font-family:sans-serif;color:#1F497D;}#yiv6642812109 .yiv6642812109MsoChpDefault {font-size:10.0pt;} _filtered {}#yiv6642812109 div.yiv6642812109WordSection1 {}#yiv6642812109 I think it would depend on whether or not the pre-con services include anything that would be considered “improving” the property under 713.01(14). If the contractor is just looking at the design documents and pricing, then probably not. But if the contractor is out there digging (“excavating”) or other things that might be an “improvement,” then he would need to serve the NTO.    Sounds like the “pith of the lease” rule clearly applies – that the lease “requires construction of the project….” – but of course the lease not prohibiting liens helps too.    Bruce Partington | Shareholder
bpartington@clarkpartington.com | (850) 432-1399CLARK PARTINGTON
Office: (850) 434-9200 | Fax: (850) 432-7340
125 East Intendencia Street, 4th Floor 
Pensacola, Florida 32502
clarkpartington.com     From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.orgOn Behalf Of RPPTL CLC-Discussion
Sent: Friday, October 9, 2020 11:32 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] FW: NTO Timing - A133 Precon Services    I have a contractor client that has signed an AIA-A133 for a project in Central Florida. The contractor’s client is the lessee of a long term ground lease upon which the project will be constructed.  The ground lease has no prohibition on liens and requires construction of the project.  Precon work has commenced under the A133.  The GMP Amendment (indicating commencement of the construction phase) has not been prepared or signed. To preserve its lien rights against the fee simple interest of the Landlord, does the contractor need to serve a NTO on the Landlord within 45 days of commencing precon work or can that wait until the construction phase commences with the execution of the GMP Amendment.   
|
|
|  |
|             AL  • DE• FL  • GA       
            MS  • NC• SC  • TN  |

|
| Troy K. Smith  • Partner
Burr & Forman LLP  |
| 50 North Laura Street , Suite 3000,Jacksonville, Florida 32202
direct 904-232-7232 •fax 904-212-2068 •main
tsmith@burr.com •https://link.edgepilot.com/s/4a3c3c95/jpP5IaWowkKizth_78hKNw?u=http://www.burr.com/ 

360 Attorneys. 19 Offices. 1 Firm. Southeastern Strong. |

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It also depends on who signs the NOC: if the fee simple owner signs the NOC, all controversy is removed.

Charles B. Hernicz, Esq.

Board Certified in Construction Law by The Florida Bar

Hernicz Legal Services, P.L.
1460 Wood Row Way
Wellington, FL 33414
Telephone: (561) 753-7511
Chernicz@HerniczLegal.com

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From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Friday, October 9, 2020 1:06 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] FW: NTO Timing - A133 Precon Services

Interesting question.  IMO, a contractor (as opposed to an A/E) during the design phase performing precon services under an A133 (e.g.., VE design reviews, constructability reviews, and pricing exercises) is not performing a  lienable service as a contractor since it is not building any permanent improvement on Owner’s property.  Assuming no early release or early start permit outside of the GMP Amendment, I agree that the GMP Amendment would function as the stand in for the normal A101 or A102 construction contract and actual  construction phase services would flow from the execution of that document.  As far as serving the NTO, many contractors improving leasehold space do not serve the NTO and operate on the belief that, in the absence of a 713.10 recorded instrument, they enjoy lien rights against the fee simple interest.  I would be interested if anyone has any caselaw on the subject of whether a contractor must serve a NTO on a  fee owner in order to enjoy lien rights against the fee simple interest in instances where the GC/CM has a contract with the tenant but not the fee owner and no 713.10 instrument has been recorded (and improvements are the “pith” of the lease).  It’s been years since I last reviewed pith of the lease caselaw and I don’t remember seeing discussions of the GC having to serve a NTO on the fee owner in order to have lien rights (where improvements are the pith of the lease and no 713.10 instrument recorded).

Michael Gibbons
Shareholder
215 N. Eola Dr. | Orlando, FL 32801
D: 407.418.6378 | P: 407.843.4600
mailto:Michael.Gibbons@lowndes-law.com Email |  http://lowndes-law.com Website | Bio |  https://lowndeslaw.dpmlocal.com/admin/vcard/generate.php?id=64 VCard

LOCAL ROOTS. BROAD REACH. SM

From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of RPPTL CLC-Discussion
Sent: Friday, October 9, 2020 12:32 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] FW: NTO Timing - A133 Precon Services

CAUTION: THIS IS AN EXTERNAL EMAIL

I have a contractor client that has signed an AIA-A133 for a project in Central Florida. The contractor’s client is the lessee of a long term ground lease upon which the project will be constructed.  The ground lease has no prohibition on liens and requires construction of the project.  Precon work has commenced under the A133.  The GMP Amendment (indicating commencement of the construction phase) has not been prepared or signed. To preserve its lien rights against the fee simple interest of the Landlord, does the contractor need to serve a NTO on the Landlord within 45 days of commencing precon work or can that wait until the construction phase commences with the execution of the GMP Amendment.

        AL  • DE • FL  • GA       
        MS  • NC • SC  • TN

Troy K. Smith  •  Partner
Burr & Forman LLP

50 North Laura Street , Suite 3000, Jacksonville, Florida 32202
direct 904-232-7232 • fax 904-212-2068 • main
mailto:tsmith@burr.com tsmith@burr.com •  https://protect-us.mimecast.com/s/-zR7CjROYkInY2zjFRTMHQ www.burr.com

360 Attorneys. 19 Offices. 1 Firm. Southeastern Strong.

The information contained in this email is intended for the individual or entity above. If you are not the intended recipient, please do not read, copy, use, forward or disclose this communication to others; also, please notify the sender by replying to this message, and then delete this message from your system. Thank you.