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Construction Law Authority / Legislation  / TWO NEW COURT DECISIONS THIS WEEK

TWO NEW COURT DECISIONS THIS WEEK

 

Two new appellate court cases this week reiterate long standing principles of law, making this a good time to revisit and refresh everyone on these points. First, in Parc Central Aventura East Condominium v. Victoria Group Services, LLC, decided by the Third District Court of Appeal on January 19, 2011, the court denied lien rights to a company providing cleaning, maintenance and concierge services to the common areas of a condominium. In doing so, the court reiterated the law that construction liens are only available for improvements that permanently benefit the property, rather than cleaning or maintenance, which are temporary. As an interesting second point, the court ruled that construction liens are only available under the Construction Lien Law found in Chapter 713 of the Florida Statutes and no lien is created by §718.121, the Florida Statute discussing the impact of construction liens in a condominium setting.

 

In Scherer v. Villas Del Verde Homeowners Ass’n., Inc., the Second District Court of Appeal on January 19, 2011 reiterated the law that a qualifying agent for a contractor can not be sued in his or her individual capacity for failing to fulfill the obligations of the Licensing Code, including failing to supervise the contractor’s construction activities. Although the Licensing Code provides ramifications to the qualifier in the form of a license complaint with the State, it does not give rise to a private cause of action against him or her. The Florida Supreme Court declared that law in 1994 in Murthy v. Sinha Corp., 644 So. 2d 983 (Fla. 1994). That same year, the legislature amended the Licensing Code to provide that violations of its requirements do not create a civil cause of action. §489.131(12). The Scherer court voiced frustration at individual contractors escaping liability by simply shutting the doors of their contracting firms, but was restrained to follow the law set by the Supreme Court and the legislature.

 

Neither of these opinions are final until the time for the parties to file motions for rehearing has expired and, if motions are filed, the time for the court to rule on them.

Lee Weintraub

Lee Weintraub

lweintraub@bplegal.com

At age 46, Lee Weintraub was the youngest recipient ever of the Lifetime Achievement Award from the Florida Bar’s Construction Law Committee. Mr. Weintraub is also an adjunct professor of law at Nova Southeastern University Shepard Broad College of Law teaching construction law. Mr. Weintraub has been recognized by Chambers USA – America’s Leading Business Lawyers every year since 2003. Chambers USA noted he focuses on licensing and construction defect litigation, but is particularly renowned for his expertise in the Construction Lien Law. He was also selected in the The Best Lawyers in America© every year from 2006 through 2018.

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