Florida Senate - 2011                                    SB 1196
       
       
       
       By Senator Bogdanoff
       
       
       
       
       25-00715-11                                           20111196__
    1                        A bill to be entitled                      
    2         An act relating to construction liens on leased
    3         premises; amending s. 713.10, F.S.; specifying
    4         circumstances under which the interest of a lessor in
    5         leased premises is subject to a construction lien for
    6         an improvement made by a lessee; providing that the
    7         interest of the lessor is not subject to a lien if
    8         certain documents relating to a lessor’s liability for
    9         a construction lien are recorded in the official
   10         records before the recording of a notice of
   11         commencement; providing that a creditor secured by an
   12         interest in a parcel or a purchaser for valuable
   13         consideration of a parcel may rely on as accurate and
   14         correct a recorded lease, memorandum of lease, or
   15         notice that prohibits the imposition of a lien on the
   16         lessor’s interest in leased premises; providing that a
   17         lienor that is materially prejudiced by a willful
   18         misstatement of fact in certain recorded documents may
   19         have a cause of action for damages against the lessor;
   20         providing that a creditor or purchaser of a leased
   21         premises may rely on certain recorded documents
   22         relating to a lessor’s liability for a lien;
   23         authorizing a contractor or lienor to demand a
   24         verified copy of a provision of a lease prohibiting
   25         the imposition of a construction lien; amending s.
   26         713.13, F.S.; providing that the owner of property for
   27         purposes of a notice of commencement is a lessee that
   28         contracts for an improvement on leased premises;
   29         providing an effective date.
   30  
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Section 713.10, Florida Statutes, is amended to
   34  read:
   35         713.10 Extent of liens.—
   36         (1) Except as provided in s. 713.12, a lien under this part
   37  extends shall extend to, and only to, the right, title, and
   38  interest of the person who contracts for an the improvement on
   39  leased premises as such right, title, and interest exists at the
   40  commencement of the improvement or is later thereafter acquired
   41  in the real property.
   42         (2)If When an improvement is made by a lessee in
   43  accordance with an agreement between the such lessee and the her
   44  or his lessor, the lien shall extend also extends to the
   45  interest of the such lessor. If When the lease expressly
   46  provides that the interest of the lessor is shall not be subject
   47  to liens for improvements made by the lessee, the lessee must
   48  shall notify the contractor making any such improvements of the
   49  prohibition on liens such provision or provisions in the lease.,
   50  and The knowing or willful failure of the lessee to notify
   51  provide such notice to the contractor of the prohibition on
   52  liens renders shall render the contract between the lessee and
   53  the contractor voidable at the option of the contractor.
   54         (3) The interest of the lessor is shall not be subject to a
   55  lien liens for an improvement improvements made by the lessee
   56  if:
   57         (a) The lease expressly prohibits the imposition of a lien
   58  and, before a notice of commencement is recorded when:
   59         1.(1) The lease or a short form thereof is recorded in the
   60  official records of the county where the leased premises are
   61  located clerk’s office and the terms of the lease expressly
   62  prohibit such liability; or
   63         2. A memorandum of the lease containing the specific
   64  language of the lease prohibiting the imposition of a lien is
   65  recorded in the official records of the county where the leased
   66  premises are located; or
   67         (b) The lessor leases more than one premises on a parcel
   68  and all of the leases expressly prohibit the imposition of a
   69  lien and a notice is recorded in the official records of the
   70  county where the leased premises are located which includes:
   71         (2) All of the leases entered into by a lessor for the
   72  rental of premises on a parcel of land prohibit such liability
   73  and a notice which sets forth the following is recorded by the
   74  lessor in the public records of the county in which the parcel
   75  of land is located:
   76         1.(a) The name of the lessor.
   77         2. The name of the lessee.
   78         3.(b) The legal description of the parcel of land to which
   79  the notice applies.
   80         4. A statement that all of the lessor’s leases of premises
   81  on the parcel expressly prohibit the imposition of a lien.
   82         (c) The specific language contained in the various leases
   83  prohibiting such liability.
   84         (d) A statement that all leases entered into for premises
   85  on the parcel of land contain the language identified in
   86  paragraph (c).
   87         (c)1. The lessor leases more than one premises on a parcel
   88  and only some of the leases expressly prohibit the imposition of
   89  a lien and a notice is recorded in the official records of the
   90  county where the leased premises are located which:
   91         a. Includes the name of the lessor.
   92         b. Includes the name of the lessee.
   93         c. Includes the legal description of the parcel of land to
   94  which the notice applies.
   95         d. Identifies each specific premises that may be subject to
   96  a lien for improvements made by the lessee.
   97         2. The lessor may amend the notice to revise the list of
   98  leased premises that may be subject to a lien. An amendment is
   99  effective upon recording and does not limit a lessor’s liability
  100  for improvements performed under a notice of commencement that
  101  is recorded before the amendment.
  102         (4)(a) A creditor that is secured by an interest in a
  103  parcel, or a purchaser for valuable consideration of a parcel,
  104  may rely on as accurate and correct a recorded lease, memorandum
  105  of lease, or notice that prohibits the imposition of a lien. A
  106  person does not have a duty to inquire into the terms of any
  107  lease affecting the parcel as a condition of relying on a
  108  memorandum of lease or notice recorded pursuant to this section.
  109         (b) A lienor who is materially prejudiced by a willful
  110  misstatement of fact by a lessor in a memorandum of lease or
  111  notice has a cause of action against the lessor for damages
  112  sustained thereby in the amount that the lienor would have been
  113  otherwise able to establish as a construction lien against the
  114  lessor’s interest under this part.
  115         (5) The identification of a premises in a memorandum of
  116  lease or recorded notice under subsection (3) which may be
  117  subject to a lien does not constitute actual or constructive
  118  notice of the lease or the interests of the named lessee in the
  119  premises. This subsection does not affect the rights of lienors
  120  against the interests of the lessor or lessee identified in a
  121  memorandum of lease or notice.
  122         (6)(3) The lessor of lessee is a mobile home owner who is
  123  leasing a mobile home lot in a mobile home park is not subject
  124  to a lien for an improvement made by the lessee from the lessor.
  125         (7)(a) A contractor or lienor under contract to improve a
  126  premises leased by a lessee may serve written demand on the
  127  lessor for a verified copy of the provision in the lease between
  128  such lessee and the lessor which prohibits the imposition of a
  129  lien for an improvement made by the lessee. The demand must
  130  identify the lessee and the premises being improved and must be
  131  in a document that is separate from the notice to the owner
  132  provided in s. 713.06. The written demand must include the
  133  following warning in conspicuous type and in substantially the
  134  following form:
  135  
  136         WARNING: YOUR PROPERTY MAY BE SUBJECT TO A
  137         CONSTRUCTION LIEN IF YOU FAIL TO SERVE A VERIFIED COPY
  138         OF THE LEASE PROVISION WITHIN 30 DAYS AFTER YOU
  139         RECEIVE THIS DEMAND OR IF YOU SERVE A FALSE OR
  140         FRAUDULENT COPY OF THE LEASE PROVISION.
  141  
  142         (b) The lessor must serve a copy of the provision of the
  143  lease, which must be verified pursuant to s. 92.525, on the
  144  contractor or lienor within 30 days after receipt of the demand.
  145  The interest of a lessor that does not serve a verified copy of
  146  the lease provision within 30 days after demand, or that serves
  147  a false or fraudulent copy, is subject to a lien under this part
  148  by the party demanding the verified copy if such party:
  149         1. Is entitled to a lien under this part; and
  150         2. Did not have actual notice that the interest of the
  151  lessor is not subject to liens for improvements made by the
  152  lessee.
  153         Section 2. Paragraphs (a) and (d) of subsection (1) of
  154  section 713.13, Florida Statutes, are amended to read:
  155         713.13 Notice of commencement.—
  156         (1)(a) Except for an improvement that is exempt pursuant to
  157  s. 713.02(5), an owner or the owner’s authorized agent before
  158  actually commencing to improve any real property, or
  159  recommencing completion of any improvement after default or
  160  abandonment, whether or not a project has a payment bond
  161  complying with s. 713.23, shall record a notice of commencement
  162  in the clerk’s office and forthwith post either a certified copy
  163  thereof or a notarized statement that the notice of commencement
  164  has been filed for recording along with a copy thereof. The
  165  notice of commencement shall contain the following information:
  166         1. A description sufficient for identification of the real
  167  property to be improved. The description should include the
  168  legal description of the property and also should include the
  169  street address and tax folio number of the property if available
  170  or, if there is no street address available, such additional
  171  information as will describe the physical location of the real
  172  property to be improved.
  173         2. A general description of the improvement.
  174         3. The name and address of the owner, the owner’s interest
  175  in the site of the improvement, and the name and address of the
  176  fee simple titleholder, if other than such owner. However, a
  177  lessee that contracts for an improvement shall be listed as the
  178  owner of the property.
  179         4. The name and address of the contractor.
  180         5. The name and address of the surety on the payment bond
  181  under s. 713.23, if any, and the amount of such bond.
  182         6. The name and address of any person making a loan for the
  183  construction of the improvements.
  184         7. The name and address within the state of a person other
  185  than himself or herself who may be designated by the owner as
  186  the person upon whom notices or other documents may be served
  187  under this part; and service upon the person so designated
  188  constitutes service upon the owner.
  189         (d) A notice of commencement must be in substantially the
  190  following form:
  191  
  192  Permit No.....                                 Tax Folio No.....
  193                       NOTICE OF COMMENCEMENT                      
  194  State of....
  195  County of....
  196  
  197  The undersigned hereby gives notice that improvement will be
  198  made to certain real property, and in accordance with Chapter
  199  713, Florida Statutes, the following information is provided in
  200  this Notice of Commencement.
  201         1. Description of property: ...(legal description of the
  202  property, and street address if available)....
  203         2. General description of improvement:.....
  204         3. Owner information or lessee information if the lessee
  205  contracted for the improvement:.....
  206         a. Name and address:.....
  207         b. Interest in property:.....
  208         c. Name and address of fee simple titleholder (if other
  209  than Owner):.....
  210         4.a. Contractor: ...(name and address)....
  211         b. Contractor’s phone number:.....
  212         5. Surety
  213         a. Name and address:.....
  214         b. Phone number:.....
  215         c. Amount of bond: $.....
  216         6.a. Lender: ...(name and address)....
  217         b. Lender’s phone number:.....
  218         7.a. Persons within the State of Florida designated by
  219  Owner upon whom notices or other documents may be served as
  220  provided by Section 713.13(1)(a)7., Florida Statutes: ...(name
  221  and address)....
  222         b. Phone numbers of designated persons:.....
  223         8.a. In addition to himself or herself, Owner designates
  224  ............ of ............ to receive a copy of the Lienor’s
  225  Notice as provided in Section 713.13(1)(b), Florida Statutes.
  226         b. Phone number of person or entity designated by
  227  owner:.....
  228         9. Expiration date of notice of commencement (the
  229  expiration date is 1 year from the date of recording unless a
  230  different date is specified).....
  231  
  232  WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
  233  EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
  234  PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
  235  STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
  236  TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
  237  POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
  238  INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
  239  ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
  240  COMMENCEMENT.
  241  
  242  ...(Signature of Owner or Owner’s or Lessee’s Authorized
  243  Officer/Director/Partner/Manager)...
  244  
  245  ...(Signatory’s Title/Office)...
  246  
  247  The foregoing instrument was acknowledged before me this ....
  248  day of ...., ...(year)..., by ...(name of person)... as ...(type
  249  of authority, . . . e.g. officer, trustee, attorney in fact)...
  250  for ...(name of party on behalf of whom instrument was
  251  executed)....
  252  
  253  ...(Signature of Notary Public - State of Florida)...
  254  
  255  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  256  
  257         Personally Known .... OR Produced Identification ....
  258  
  259         Type of Identification Produced............
  260  
  261  Verification pursuant to Section 92.525, Florida Statutes.
  262  
  263  Under penalties of perjury, I declare that I have read the
  264  foregoing and that the facts stated in it are true to the best
  265  of my knowledge and belief.
  266  
  267  ...(Signature of Natural Person Signing Above)...
  268         Section 3. This act shall take effect July 1, 2011.