Florida Senate - 2011 SB 964
By Senator Wise
5-00240E-11 2011964__
1 A bill to be entitled
2 An act relating to construction liens and bonds;
3 amending s. 255.05, F.S.; requiring that a contractor
4 record in the official records a payment bond for a
5 public works construction project; requiring that the
6 bond number be stated on the first page of the bond;
7 prohibiting the issuing authority for a building
8 permit or a private provider performing inspection
9 services from inspecting the property being improved
10 until certain documents are filed; providing that a
11 payment and performance bond is not required for
12 certain contracts; authorizing certain entities to
13 exempt certain contracts from the requirement for a
14 payment and performance bond; requiring the contractor
15 to serve a notice of contest of claim against the
16 payment bond; providing the form and content for a
17 notice to contractor; providing for a sworn notice of
18 nonpayment and providing the form and content of the
19 notice; prohibiting a public authority from
20 withholding payment to a contractor when the
21 contractor has provided a payment bond; amending s.
22 713.015, F.S.; requiring that a contractor provide an
23 owner with a general statement of an owner’s rights
24 and responsibilities under Florida’s Construction Lien
25 Law; requiring that a signed copy of the statement be
26 filed with the building permit application; specifying
27 the form and content of the statement; deleting the
28 requirement that notice be included in the direct
29 contract between the contractor and the owner;
30 amending s. 713.06, F.S.; revising the form of a
31 notice for liens of persons not in privity with the
32 owner; amending s. 713.13, F.S.; revising the form of
33 the notice of commencement; requiring a payment bond
34 to be attached to a notice of commencement if a
35 project is bonded; amending s. 713.135, F.S.; revising
36 the warning to the owner printed on certain permit
37 cards; deleting a requirement relating to filing a
38 notice of commencement before certain inspections;
39 revising the warning to the owner provided on a
40 building permit form; creating s. 713.137, F.S.;
41 prohibiting the authority issuing a building permit or
42 a private provider performing inspection services from
43 inspecting an improvement until certain documents have
44 been filed and the information in the notice of
45 commencement meets certain standards; providing
46 exceptions; amending s. 713.16, F.S.; revising
47 requirements for demands for a copy of a construction
48 contract and a statement of account; authorizing a
49 lienor who submits or mails a claim of lien to the
50 clerk for recording to make certain demands to an
51 owner for certain written statements; providing
52 requirements for such written demands; amending s.
53 713.18, F.S.; providing additional methods by which
54 certain items may be served; specifying the
55 information required on certain written instruments
56 under certain circumstances; amending s. 713.22, F.S.;
57 requiring that the contractor serve a notice of
58 contest of lien; amending s. 713.23, F.S.; providing
59 for a sworn notice of nonpayment and providing the
60 form and content of the notice; requiring that the
61 contractor serve a notice of contest of claim against
62 the payment bond and a notice of bond; providing an
63 effective date.
64
65 Be It Enacted by the Legislature of the State of Florida:
66
67 Section 1. Subsection (1) and paragraph (a) of subsection
68 (2) of section 255.05, Florida Statutes, are amended, and
69 subsection (11) is added to that subsection, to read:
70 255.05 Bond of contractor constructing public buildings;
71 form; action by materialmen.—
72 (1)(a) Any person entering into a formal contract with the
73 state or any county, municipality city, or political subdivision
74 thereof, or other public authority or private entity, for the
75 construction of a public building, for the prosecution and
76 completion of a public work, or for repairs upon a public
77 building or public work must shall be required, before
78 commencing the work or before recommencing the work after a
79 default or abandonment, to execute and, deliver to the public
80 owner, and record in the public records of the county where the
81 improvement is located, a payment and performance bond with a
82 surety insurer authorized to do business in this state as
83 surety.
84 (a) A public entity may not require a contractor to secure
85 a surety bond under this section from a specific agent or
86 bonding company.
87 (b) The bond must state on its front page: the name,
88 principal business address, and phone number of the contractor,
89 the surety, the owner of the property being improved, and, if
90 different from the owner, the contracting public entity; the
91 contract number assigned by the contracting public entity; the
92 bond number assigned by the surety; and a description of the
93 project sufficient to identify it, such as a legal description
94 or the street address of the property being improved, and a
95 general description of the improvement.
96 (c) Such bond shall be conditioned upon the contractor’s
97 performance of the construction work in the time and manner
98 prescribed in the contract and promptly making payments due to
99 all persons defined as a lienor in s. 713.01 who furnish labor,
100 services, or materials for the prosecution of the work provided
101 for in the contract.
102 (d) The contractor shall record the payment and performance
103 bond upon issuance in the official records of the county in
104 which the improvement will be located.
105 (e)1. The issuing authority for the building permit, or a
106 private provider performing inspection services, may not inspect
107 the property being improved until:
108 a. The issuing authority has a copy of the contractor’s
109 recorded payment and performance bond on file; or
110 b. The contracting public entity has filed with the issuing
111 authority a notarized statement stating that the contract is
112 exempt from the requirement for a payment and performance bond
113 as provided in this section.
114 2. This paragraph does not apply to inspections for the
115 installation of temporary electrical service or other temporary
116 utility service, land clearing, or other preliminary site work.
117 (f) Any claimant may apply to The governmental entity
118 having charge of the work shall provide a certified copy for
119 copies of the contract and bond to any claimant upon request and
120 shall thereupon be furnished with a certified copy of the
121 contract and bond. The claimant has shall have a right of action
122 against the contractor and surety for the amount due him or her,
123 including unpaid finance charges due under the claimant’s
124 contract. Such action shall not involve the public authority in
125 any expense.
126 (g)1. A payment and performance bond is not required for a
127 contract with the state for $100,000 or less. When such work is
128 done for the state and the contract is for $100,000 or less, no
129 payment and performance bond shall be required.
130 2. At the discretion of The official or board awarding a
131 such contract when such work is done for a any county,
132 municipality city, political subdivision, or public authority
133 may exempt a contract, any person entering into such a contract
134 which is for $200,000 or less from the requirement for a may be
135 exempted from executing the payment and performance bond.
136 3. When such work is done for the state, The Secretary of
137 Management Services may delegate to a state agency agencies the
138 authority to exempt any person entering into such a contract for
139 amounting to more than $100,000 but less than $200,000 from the
140 requirement for a executing the payment and performance bond. If
141 In the event such exemption is granted, the officer or officials
142 are shall not be personally liable to a person who suffers a
143 persons suffering loss due to the because of granting such
144 exemption. The Department of Management Services shall maintain
145 information on the number of requests by state agencies for
146 delegation of authority to waive the bond requirements by agency
147 and project number and whether any request for delegation was
148 denied and the justification for the denial.
149 (h) The persons who may be protected by a payment and
150 performance bond for payments due to them for furnishing labor,
151 services, or materials for the prosecution of the work are
152 limited to those persons defined as a lienor in s. 713.01. A Any
153 provision of in a payment and performance bond furnished for a
154 public works contract work contracts as provided by this
155 subsection which further restricts the classes of persons as
156 defined in s. 713.01 protected by the bond or the venue of any
157 proceeding relating to such bond is unenforceable.
158 (i)(b) The Department of Management Services shall adopt
159 rules with respect to all contracts for $200,000 or less, to
160 provide:
161 1. Procedures for retaining up to 10 percent of each
162 request for payment submitted by a contractor and procedures for
163 determining disbursements from the amount retained on a pro rata
164 basis to laborers, materialmen, and subcontractors, as defined
165 in s. 713.01.
166 2. Procedures for requiring certification from laborers,
167 materialmen, and subcontractors, as defined in s. 713.01, before
168 prior to final payment to the contractor, that they do not that
169 such laborers, materialmen, and subcontractors have a claim no
170 claims against the contractor resulting from the completion of
171 the work provided for in the contract.
172
173 The state is shall not be held liable to any laborer,
174 materialman, or subcontractor for any amounts greater than the
175 pro rata share as determined under this section.
176 (j)(c)1. The amount of the bond shall equal the contract
177 price, except that for a contract in excess of $250 million, if
178 the state, county, municipality, political subdivision, or other
179 public entity finds that a bond in the amount of the contract
180 price is not reasonably available, the public owner shall set
181 the amount of the bond at the largest amount reasonably
182 available, but not less than $250 million.
183 2. For construction-management or design-build contracts,
184 if the public owner does not include in the bond amount the cost
185 of design or other nonconstruction services, the bond may not be
186 conditioned on performance of such services or payment to
187 persons furnishing such services. Notwithstanding paragraph (h)
188 (a), such a bond may exclude persons furnishing such services
189 from the classes of persons protected by the bond.
190 (2)(a)1. If a claimant is no longer furnishing labor,
191 services, or materials on a project, a contractor or the
192 contractor’s agent or attorney may elect to shorten the
193 prescribed time in this paragraph within which an action to
194 enforce any claim against a payment bond must provided pursuant
195 to this section may be commenced by recording in the clerk’s
196 office a notice in substantially the following form:
197 NOTICE OF CONTEST OF CLAIM
198 AGAINST PAYMENT BOND
199
200 To: ...(Name and address of claimant)...
201
202 You are notified that the undersigned contests your notice
203 of nonpayment, dated ............, ........, and served on the
204 undersigned on ............, ........, and that the time within
205 which you may file suit to enforce your claim is limited to 60
206 days after the date of service of this notice.
207
208 DATED on ............, .........
209
210 Signed:...(Contractor or Attorney)...
211
212 The claim of any claimant upon whom such notice is served and
213 who fails to institute a suit to enforce his or her claim
214 against the payment bond within 60 days after service of such
215 notice shall be extinguished automatically. The contractor or
216 the contractor’s attorney clerk shall serve mail a copy of the
217 notice of contest to the claimant at the address shown in the
218 notice of nonpayment or most recent amendment thereto and shall
219 certify to such service on the face of such notice and record
220 the notice. Service is complete upon mailing.
221 2.a. A claimant, except a laborer, who is not in privity
222 with the contractor must shall, before commencing or not later
223 than 45 days after commencing to furnish labor, services, or
224 materials for the prosecution of the work, furnish the
225 contractor with a written notice that he or she intends to look
226 to the bond for protection. The notice must be in substantially
227 the following form:
228
229 NOTICE TO CONTRACTOR
230
231 To: ...(Name and address of contractor)...
232
233 This notice is to inform you that the claimant identified below
234 intends to look to the contractor’s bond to secure payment for
235 the furnishing of materials or services for the improvement of
236 real property. These materials or services have been furnished
237 or are being furnished to: ...(property description)..., which
238 is owned by: ...(owner’s name and address).... A general
239 description of the materials or services is as follows:
240 ...(general description of materials or services).... The
241 materials or services were ordered by: ...(claimant’s
242 customer)....
243
244 ...(name of claimant)...
245 ...(signature of claimant or claimant’s
246 representative)......(date)...
247 ...(claimant’s address)...
248
249 b. A claimant who is not in privity with the contractor and
250 who has not received payment for his or her labor, services, or
251 materials must serve on shall deliver to the contractor and to
252 the surety written notice of the performance of the labor or
253 services, or the delivery of the materials, or supplies and of
254 the nonpayment. The notice of nonpayment must state, as of the
255 date of the notice, the nature of the labor or services
256 performed and to be performed, if any; the materials furnished;
257 the materials to be furnished, if known; the amount paid on
258 account to date; the amount due; the amount to become due, if
259 known; and the date that the notice to contractor, if any, was
260 served on the contractor. The notice of nonpayment must be a
261 sworn statement and may be served at any time during the
262 progress of the work or thereafter but not before 45 days after
263 the first furnishing of labor, services, or materials, and not
264 later than 90 days after the final furnishing of the labor,
265 services, or materials by the claimant or, with respect to
266 rental equipment, not later than 90 days after the date that the
267 rental equipment was last on the job site available for use. Any
268 notice of nonpayment served by a claimant who is not in privity
269 with the contractor which includes sums for retainage must
270 specify the portion of the amount claimed for retainage. For a
271 claimant who is not in privity with the contractor, the service
272 of the notice of nonpayment satisfies one of the two conditions
273 precedent to bringing an action against the contractor or surety
274 as provided in sub-subparagraph c., both with respect to the
275 payment described in the notice of nonpayment, including unpaid
276 finance charges due under the claimant’s contract, and with
277 respect to any other payments that become due to the claimant
278 after the date of the notice of nonpayment. The time for serving
279 a written notice of nonpayment is measured from the last day of
280 furnishing labor, services, or materials by the claimant and may
281 not be measured by other standards, such as the issuance of a
282 certificate of occupancy or the issuance of a certificate of
283 substantial completion. The failure of a claimant to receive
284 retainage sums of 10 percent or less of the value of labor,
285 services, or materials furnished by the claimant is not
286 considered a nonpayment requiring the service of the notice
287 provided under this sub-subparagraph. The notice of nonpayment
288 must be in substantially the following form:
289
290 NOTICE OF NONPAYMENT
291
292 To: ...(Name and address of contractor)...
293 ...(Name and address of surety)...
294
295 This notice is to inform you that, as of the date of this
296 notice, the claimant identified below has not been fully paid
297 for furnishing labor, services, or materials for an improvement
298 to real property. The labor, services, or materials have been
299 furnished to: ...(property description)..., which is owned by:
300 ...(owner’s name and address).... A general description of the
301 labor, services, or materials is as follows: ...(general
302 description of labor, services, or materials).... The labor,
303 services, or materials were ordered by: ...(claimant’s
304 customer)....
305
306 The amount paid by ...(claimant’s customer)... as of the date of
307 this notice for the labor, services, or materials is $..... The
308 total amount currently due and unpaid is $...., with $.... of
309 that amount attributable to retainage.
310
311 You are further notified that the claimant identified below
312 expects to furnish additional labor, services, or materials for
313 the improvement ordered by the same customer. A general
314 description of the additional labor, services, or materials is
315 as follows: ...(general description of labor, services, or
316 materials).... The additional amount expected to become due is:
317 $.....
318
319 If applicable, a notice to contractor pursuant to section
320 255.05(2)(a)2.a., Florida Statutes, was served on ...(name of
321 contractor)... on ...(date)....
322
323 ...(name of claimant)...
324 ...(signature of claimant or claimant’s
325 representative)......(date)...
326 ...(claimant’s address)...
327
328 Sworn to (or affirmed) and subscribed before me this .... day of
329 ...., ..(year).., by ...(name of person making statement)....
330 ...(Signature of Notary Public...... (Print, Type, or Stamp
331 Commissioned Name of Notary Public)...
332
333 Personally Known .... OR Produced ...... as identification.
334 c. An No action for the labor, services, or materials, or
335 supplies may not be instituted against the contractor or the
336 surety unless the notice to contractor and the notice of
337 nonpayment both notices have been given, if required by this
338 section. Service of all notices or other instruments required or
339 permitted under this section shall may be made served in
340 accordance with s. 713.18. A claimant may not waive in advance
341 his or her right to bring an action under the bond against the
342 surety. In any action brought to enforce a claim against a
343 payment bond under this section, the prevailing party is
344 entitled to recover a reasonable fee for the services of his or
345 her attorney for trial and appeal or for arbitration, in an
346 amount to be determined by the court, and the which fee must be
347 taxed as part of the prevailing party’s costs, as allowed in
348 equitable actions. The time periods for service of a notice of
349 nonpayment or for bringing an action against a contractor or a
350 surety shall be measured from the last day of furnishing labor,
351 services, or materials by the claimant and shall not be measured
352 by other standards, such as the issuance of a certificate of
353 occupancy or the issuance of a certificate of substantial
354 completion.
355 (11) If a contractor furnishes a payment and performance
356 bond for a public works project under this section and has
357 recorded the bond pursuant to paragraph (1)(d), the public
358 authority may not condition its payments to the contractor on
359 the production of a release, waiver, or like documentation from
360 a claimant demonstrating that the claimant does not have an
361 outstanding claim against the contractor, the surety, the bond,
362 or the public authority for payments due on labor, services, or
363 materials furnished on the public works project.
364 Section 2. Section 713.015, Florida Statutes, is amended to
365 read:
366 713.015 General statement of owner’s rights and
367 responsibilities Mandatory provisions for direct contracts.—
368 (1) For any direct contract greater than $2,500 between an
369 owner and a contractor, related to improvements to real property
370 consisting of single or multiple family dwellings up to and
371 including four units, the contractor must provide the owner with
372 a copy of the general statement of owner’s rights and
373 responsibilities under Florida’s Construction Lien Law as set
374 forth in subsection (2), which must be contain the following
375 notice provision printed in no less than 12-point, capitalized,
376 boldfaced type on the front page of the contract or on a
377 separate page, signed by the owner and dated, and submitted with
378 the original building permit application pursuant to s.
379 713.135.:
380
381 ACCORDING TO FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001
382 713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR
383 PROVIDE MATERIALS AND SERVICES AND ARE NOT PAID IN FULL HAVE A
384 RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY.
385 THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR CONTRACTOR
386 OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB
387 SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THOSE PEOPLE WHO ARE OWED
388 MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE
389 ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR
390 CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR
391 PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE
392 SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER
393 SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED
394 TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN THIS
395 CONTRACT THAT BEFORE ANY PAYMENT IS MADE, YOUR CONTRACTOR IS
396 REQUIRED TO PROVIDE YOU WITH A WRITTEN RELEASE OF LIEN FROM ANY
397 PERSON OR COMPANY THAT HAS PROVIDED TO YOU A “NOTICE TO OWNER.”
398 FLORIDA’S CONSTRUCTION LIEN LAW IS COMPLEX, AND IT IS
399 RECOMMENDED THAT YOU CONSULT AN ATTORNEY.
400 (2) The general statement of owner’s rights and
401 responsibilities under Florida’s Construction Lien Law must be
402 in substantially the following form, must include the
403 information contained in the following form, and must include a
404 copy of a notice of commencement as provided in s. 713.13(1).
405
406 GENERAL STATEMENT OF OWNER’S RIGHTS AND RESPONSIBILITIES
407 UNDER FLORIDA’S CONSTRUCTION LIEN LAW
408 (Required by Section 713.015, Florida Statutes)
409
410 ABOUT THIS DOCUMENT.—Florida law requires your contractor
411 to provide you with this document when you are contracting to
412 make improvements to real property. It is critical that you have
413 some understanding of Florida’s construction lien and payment
414 laws and take appropriate steps to protect your investment and
415 fulfill your obligations to those who provide labor, services,
416 or materials for your project.
417
418 You must acknowledge that you have received and read this
419 document by signing on the signature page. The original signed
420 document must be delivered to the building permit authority,
421 along with the building permit application for your project.
422 Your building permit application will not be processed unless
423 this signed document is in the file. You need to retain a copy
424 of this document so that you can follow the procedures described
425 in the document and identify the proper statutory forms as you
426 proceed with your construction project.
427
428 IT IS ALWAYS RECOMMENDED THAT YOU OBTAIN LEGAL ADVICE
429 BEFORE UNDERTAKING REAL PROPERTY IMPROVEMENTS. IF YOU HAVE
430 QUESTIONS REGARDING THE INFORMATION CONTAINED IN THIS DOCUMENT,
431 SEEK THE ADVICE OF A FLORIDA CONSTRUCTION LAW ATTORNEY.
432
433 THE FLORIDA CONSTRUCTION LIEN LAW.—Part I of chapter 713,
434 Florida Statutes (F.S.), governs private construction projects
435 in this state. The complete text of this law can be found at
436 www.leg.state.fl.us. This statement is a guide and does not take
437 precedence over the language of Florida’s Construction Lien Law.
438
439 Under this law, those who work on your property or provide
440 materials or services and who are not paid in full have a right
441 to enforce their claim for payment against your property. This
442 claim is known as a construction lien. If your contractor or a
443 subcontractor fails to pay subcontractors, sub-subcontractors,
444 or material suppliers, those people who are owed money may look
445 to your property for payment even if you have already paid your
446 contractor in full. If you fail to pay your contractor, your
447 contractor may also have a lien on your property. This means
448 that if a valid lien is filed, your property could be sold
449 against your will to pay for labor, services, or materials that
450 your contractor or a subcontractor may have failed to pay. A
451 contractor or subcontractor who files a lien on your property is
452 called a lienor.
453
454 FLORIDA LAW ALSO PROVIDES PROCEDURES TO PROTECT OWNERS FROM
455 PAYING MORE THAN THE AMOUNT OF THEIR CONTRACT. IF YOU FOLLOW THE
456 FOUR STEPS SET FORTH BELOW, YOU WILL PROTECT YOURSELF FROM VALID
457 LIENS AGAINST YOUR PROPERTY, AND FROM PAYING TWICE FOR LABOR,
458 SERVICES, OR MATERIALS FURNISHED FOR YOUR PROJECT.
459
460 STEP 1 — THE NOTICE OF COMMENCEMENT.—An owner is required
461 by law to complete, sign, and record in the public records a
462 Notice of Commencement for all direct contracts that exceed
463 $2,500. The information provided in the recorded Notice of
464 Commencement is relied upon by all parties who provide labor,
465 services, or materials for your project. A copy of the statutory
466 Notice of Commencement form required by s. 713.13, Florida
467 Statutes, is attached to this document.
468
469 If a lender is financing your project, the lender will
470 assist you in completing the Notice of Commencement and is
471 responsible for recording it in the public records. It is
472 critical that your Notice of Commencement be recorded after any
473 construction loan or mortgage documents are recorded. If you are
474 not using a lender, preparing and recording the Notice of
475 Commencement is your responsibility. The Notice of Commencement
476 must be recorded before commencing construction and posted on
477 your job site. For most projects, a copy of the recorded Notice
478 of Commencement must be submitted to the building permit
479 authority before the first building inspection.
480
481 STEP 2 — MONITOR THE DOCUMENTS AND NOTICES YOU RECEIVE.
482 Pick up your certified mail. Most lien notices are sent by
483 certified mail and you need to know who is providing labor,
484 services, or materials for your project. The law provides that
485 any properly addressed notices that are returned to the sender
486 through no fault of the sender are considered received by you on
487 the date sent, so failing to claim certified mail only hurts
488 you.
489
490 If you expect to be absent for periods of time during your
491 project, you should have an attorney or other agent in a
492 position of trust who understands the law handle these details
493 for you. Make sure someone is receiving your mail and taking
494 steps to obtain the necessary lien releases before making
495 payments to your contractor. If you receive anything that you do
496 not understand, seek the assistance of an experienced
497 construction law attorney.
498
499 STEP 3 — OBTAIN SIGNED LIEN WAIVERS EACH TIME YOU MAKE A
500 PAYMENT TO YOUR CONTRACTOR.—Each time you pay your contractor
501 you should obtain a Waiver and Release of Lien form from the
502 contractor AND from anyone who has served you with a Notice to
503 Owner. Make sure that each release waives lien rights against
504 your project for work or materials furnished through the date of
505 the work or materials that your payment covers. This date is
506 probably not the date you are making the payment, but a date
507 prior to the payment date through which labor, services, or
508 materials have been billed.
509
510 UNDER FLORIDA LAW, YOU HAVE THE RIGHT TO WITHHOLD PAYMENTS
511 OWED TO THE CONTRACTOR UNTIL YOU HAVE BEEN PROVIDED WITH A
512 WRITTEN WAIVER AND RELEASE OF LIEN UPON PROGRESS PAYMENT OR A
513 WRITTEN WAIVER AND RELEASE OF LIEN UPON FINAL PAYMENT SHOWING
514 THAT THE LIENOR’S CLAIM FOR PAYMENT HAS BEEN PAID.
515
516 There are two statutory Waiver and Release of Lien forms
517 that you should know about. The signed Waiver and Release of
518 Lien Upon Progress Payment should be provided to you by your
519 contractor, a subcontractor, or a material supplier each time
520 you make a progress payment to your contractor. The signed
521 Waiver and Release of Lien Upon Final Payment should be
522 submitted by your contractor, the subcontractor, or the material
523 supplier when they are finished furnishing all work or materials
524 for your project and have received final payment. Once you
525 receive a final waiver from the contractor, subcontractor, or
526 material supplier, you should not need another waiver unless
527 they are hired to do additional work.
528
529 STEP 4 — OBTAIN A CONTRACTOR’S FINAL PAYMENT AFFIDAVIT
530 BEFORE YOU MAKE FINAL PAYMENT TO YOUR CONTRACTOR.—In addition to
531 obtaining Final Waiver and Release of Lien forms from the
532 contractor and anyone who has served you with a Notice to Owner,
533 you should obtain a Contractor’s Final Payment Affidavit before
534 you make final payment to your contractor. This sworn affidavit
535 should reflect that everyone who supplied labor, services, or
536 materials on your project has been paid in full or should list
537 those subcontractors and suppliers who are still owed money.
538 Make sure that anyone listed as not being paid in full is paid
539 before making final payment to your contractor. You have a right
540 to rely on the information contained in the sworn affidavit when
541 you make final payment to your contractor with respect to any
542 lienor who has not sent you a Notice to Owner. If a lienor has
543 sent you a Notice to Owner, you should obtain a Waiver and
544 Release of Lien Upon Final Payment from that lienor.
545
546 OWNER’S ACKNOWLEDGMENT AND RECEIPT
547
548 The undersigned owner(s) of Florida real property hereby
549 acknowledge that they are preparing to enter into a contract
550 with _____________________________________________for the
551 construction of real property improvements to the following
552 described property (insert address or legal description):
553 _________________________________________
554 _________________________________________
555 ...(Signature of Property Owner)......(Date)...
556 ...(Signature of Property Owner)......(Date)...
557
558 Attached Statutory Form: Notice of Commencement
559
560 (2)(a) If the contract is written, the notice must be in
561 the contract document. If the contract is oral or implied, the
562 notice must be provided in a document referencing the contract.
563 (3)(b) The failure to provide such written notice does not
564 bar the enforcement of a lien against a person who has not been
565 adversely affected.
566 (4)(c) This section may not be construed to adversely
567 affect the lien and bond rights of lienors who are not in
568 privity with the owner. This section does not apply when the
569 owner is a contractor licensed under chapter 489 or is a person
570 who created parcels or offers parcels for sale or lease in the
571 ordinary course of business.
572 Section 3. Paragraph (c) of subsection (2) of section
573 713.06, Florida Statutes, is amended to read:
574 713.06 Liens of persons not in privity; proper payments.—
575 (2)
576 (c) The notice must may be in substantially the following
577 form and must include the information and the warning contained
578 in the following form:
579
580 WARNING! FLORIDA’S CONSTRUCTION LIEN LAW ALLOWS SOME
581 UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL
582 SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF
583 YOU HAVE MADE PAYMENT IN FULL.
584
585 UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID
586 MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING
587 TWICE.
588 TO PROTECT YOURSELF, EACH TIME YOU MAKE A PAYMENT TO THE
589 CONTRACTOR, ASK YOUR CONTRACTOR TO PROVIDE YOU WITH A WRITTEN
590 WAIVER AND RELEASE OF LIEN. FOR ADDITIONAL INFORMATION, REFER TO
591 THE GENERAL STATEMENT OF OWNER’S RIGHTS AND RESPONSIBILITIES,
592 WHICH WAS PROVIDED TO YOU BY YOUR CONTRACTOR AT THE BEGINNING OF
593 YOUR CONSTRUCTION PROJECT. AVOID A LIEN AND PAYING TWICE, YOU
594 MUST OBTAIN A WRITTEN RELEASE FROM US EVERY TIME YOU PAY YOUR
595 CONTRACTOR.
596 NOTICE TO OWNER
597
598 To ...(Owner’s name and address)...
599
600 The undersigned hereby informs you that he or she has furnished
601 or is furnishing services or materials as follows:
602 ...(General description of services or materials)... for the
603 improvement of the real property identified as ...(property
604 description)... under an order given by.............
605
606 Florida law prescribes the serving of this notice and restricts
607 your right to make payments under your contract in accordance
608 with Section 713.06, Florida Statutes.
609 IMPORTANT INFORMATION FOR
610 YOUR PROTECTION
611
612 Under Florida’s laws, those who work on your property or
613 provide materials and are not paid have a right to enforce their
614 claim for payment against your property. This claim is known as
615 a construction lien.
616 If your contractor fails to pay subcontractors or material
617 suppliers or neglects to make other legally required payments,
618 the people who are owed money may look to your property for
619 payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.
620
621 PROTECT YOURSELF:
622 —RECOGNIZE that this Notice to Owner may result in a lien
623 against your property unless all those supplying a Notice to
624 Owner have been paid.
625 —LEARN more about the Construction Lien Law, Chapter 713,
626 Part I, Florida Statutes, and the meaning of this notice by
627 contacting an attorney or the Florida Department of Business and
628 Professional Regulation.
629 ...(Lienor’s Signature)...
630 ...(Lienor’s Name)...
631 ...(Lienor’s Address)...
632
633 Copies to: ...(Those persons listed in Section 713.06(2)(a) and
634 (b), Florida Statutes)...
635
636 The form may be combined with a notice to contractor given under
637 s. 255.05 or s. 713.23 and, if so, may be entitled “NOTICE TO
638 OWNER/NOTICE TO CONTRACTOR.”
639 Section 4. Paragraph (d) of subsection (1) of section
640 713.13, Florida Statutes, is amended to read:
641 713.13 Notice of commencement.—
642 (1)
643 (d) A notice of commencement must be in substantially the
644 following form:
645
646 Permit No..... Tax Folio No.....
647 NOTICE OF COMMENCEMENT
648 State of....
649 County of....
650
651 The undersigned hereby gives notice that improvement will be
652 made to certain real property, and in accordance with Chapter
653 713, Florida Statutes, the following information is provided in
654 this Notice of Commencement.
655 1. Description of property: ...(legal description of the
656 property, and street address if available)....
657 2. General description of improvement:.....
658 3. Owner information:.....
659 a. Name and address:.....
660 b. Interest in property:.....
661 c. Name and address of fee simple titleholder (if other
662 than Owner):.....
663 4.a. Contractor:...(name and address)....
664 b. Contractor’s phone number:.....
665 5. Surety: ...(a copy of the payment bond is attached, if
666 the project is bonded)....
667 a. Name and address:.....
668 b. Phone number:.....
669 c. Amount of bond: $.....
670 6.a. Lender: ...(name and address)....
671 b. Lender’s phone number:.....
672 7.a. Persons within the State of Florida designated by
673 Owner upon whom notices or other documents may be served as
674 provided by Section 713.13(1)(a)7., Florida Statutes: ...(name
675 and address)....
676 b. Phone numbers of designated persons:.....
677 8.a. In addition to himself or herself, Owner designates
678 ............ of ............ to receive a copy of the Lienor’s
679 Notice as provided in Section 713.13(1)(b), Florida Statutes.
680 b. Phone number of person or entity designated by
681 owner:.....
682 9. Expiration date of notice of commencement (the
683 expiration date is 1 year from the date of recording unless a
684 later different date is specified).....
685
686 WARNING TO OWNER: IF THIS NOTICE OF COMMENCEMENT WILL EXPIRE
687 BEFORE ALL WORK IS COMPLETED AND FINAL PAYMENT IS MADE, THE
688 EXPIRATION DATE MUST BE EXTENDED. ANY PAYMENTS MADE BY THE OWNER
689 AFTER THE EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE
690 CONSIDERED IMPROPER PAYMENTS UNDER CHAPTER 713, PART I, SECTION
691 713.13, FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING TWICE
692 FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST
693 BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST
694 INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
695 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR
696 NOTICE OF COMMENCEMENT.
697
698 Under penalty of perjury, I declare that I have read the
699 foregoing notice of commencement and that the facts stated
700 therein are true to the best of my knowledge and belief.
701
702 ...(Signature of Owner or Owner’s Authorized
703 Officer/Director/Partner/Manager)...
704
705 ...(Signatory’s Title/Office)...
706
707 The foregoing instrument was acknowledged before me this ....
708 day of ...., ...(year)..., by ...(name of person)... as ...(type
709 of authority,...e.g. officer, trustee, attorney in fact)... for
710 ...(name of party on behalf of whom instrument was executed)....
711
712 ...(Signature of Notary Public - State of Florida)...
713
714 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
715
716 Personally Known .... OR Produced Identification ....
717
718 Type of Identification Produced............
719
720 Verification pursuant to Section 92.525, Florida Statutes.
721
722 Under penalties of perjury, I declare that I have read the
723 foregoing and that the facts stated in it are true to the best
724 of my knowledge and belief.
725
726 ...(Signature of Natural Person Signing Above)...
727 Section 5. Section 713.135, Florida Statutes, is amended to
728 read:
729 713.135 Notice of commencement and applicability of lien.—
730 (1) When a any person applies for a building permit, the
731 authority issuing such permit shall:
732 (a) Require the applicant to submit the signed and dated
733 general statement of an owner’s rights and responsibilities
734 under Florida’s Construction Lien Law provided in s. 713.015 for
735 any single-family or multifamily residential dwelling up to and
736 including four units. A building permit application may not be
737 processed unless the signed document is in the file.
738 (b)(a) Print on the face of each permit card in no less
739 than 14-point, capitalized, boldfaced type: “WARNING TO OWNER:
740 IF YOU FAIL YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT, YOU
741 MAY PAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR
742 PROPERTY. A NOTICE OF COMMENCEMENT, AND THE CONTRACTOR’S PAYMENT
743 BOND IF THE PROJECT IS BONDED, MUST BE RECORDED AND POSTED ON
744 THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO
745 OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
746 RECORDING YOUR NOTICE OF COMMENCEMENT.”
747 (c)(b) Make available to Provide the applicant and the
748 owner of the real property upon which improvements are to be
749 constructed copies of the general statement of an owner’s rights
750 and responsibilities under Florida’s with a printed statement
751 stating that the right, title, and interest of the person who
752 has contracted for the improvement may be subject to attachment
753 under the Construction Lien Law, as described in s. 713.015,
754 along with a statutory notice of commencement form. The issuing
755 authority may make the general statement and form available in
756 printed form or on the Internet or both. The Department of
757 Business and Professional Regulation shall furnish, for
758 distribution, the statement described in this paragraph, and the
759 statement must be a summary of the Construction Lien Law and
760 must include an explanation of the provisions of the
761 Construction Lien Law relating to the recording, and the posting
762 of copies, of notices of commencement and a statement
763 encouraging the owner to record a notice of commencement and
764 post a copy of the notice of commencement in accordance with s.
765 713.13. The statement must also contain an explanation of the
766 owner’s rights if a lienor fails to furnish the owner with a
767 notice as provided in s. 713.06(2) and an explanation of the
768 owner’s rights as provided in s. 713.22. The authority that
769 issues the building permit must obtain from the Department of
770 Business and Professional Regulation the statement required by
771 this paragraph and must mail, deliver by electronic mail or
772 other electronic format or facsimile, or personally deliver that
773 statement to the owner or, in a case in which the owner is
774 required to personally appear to obtain the permit, provide that
775 statement to any owner making improvements to real property
776 consisting of a single or multiple family dwelling up to and
777 including four units. However, the failure by the authorities to
778 provide the summary does not subject the issuing authority to
779 liability.
780 (c) In addition to providing the owner with the statement
781 as required by paragraph (b), inform each applicant who is not
782 the person whose right, title, and interest is subject to
783 attachment that, as a condition to the issuance of a building
784 permit, the applicant must promise in good faith that the
785 statement will be delivered to the person whose property is
786 subject to attachment.
787 (d) Furnish to the applicant two or more copies of a form
788 of notice of commencement conforming with s. 713.13. If the
789 direct contract is greater than $2,500, the applicant shall file
790 with the issuing authority prior to the first inspection either
791 a certified copy of the recorded notice of commencement or a
792 notarized statement that the notice of commencement has been
793 filed for recording, along with a copy thereof. In the absence
794 of the filing of a certified copy of the recorded notice of
795 commencement, the issuing authority or a private provider
796 performing inspection services may not perform or approve
797 subsequent inspections until the applicant files by mail,
798 facsimile, hand delivery, or any other means such certified copy
799 with the issuing authority. The certified copy of the notice of
800 commencement must contain the name and address of the owner, the
801 name and address of the contractor, and the location or address
802 of the property being improved. The issuing authority shall
803 (d) Verify that the name and address of the owner, the name
804 of the contractor, and the location or address of the property
805 being improved, which are is contained in the certified copy of
806 the notice of commencement, are is consistent with the
807 information in the building permit application.
808 (e) Provide the recording information from the official
809 public records in which the notice of commencement and payment
810 bond, if any, are recorded to any person upon request. The
811 issuing authority shall provide the recording information on the
812 certified copy of the recorded notice of commencement to any
813 person upon request. This subsection does not require the
814 recording of a notice of commencement prior to the issuance of a
815 building permit. If a local government requires a separate
816 permit or inspection for installation of temporary electrical
817 service or other temporary utility service, land clearing, or
818 other preliminary site work, such permits may be issued and such
819 inspections may be conducted without providing the issuing
820 authority with a certified copy of a recorded notice of
821 commencement or a notarized statement regarding a recorded
822 notice of commencement. This subsection does not apply to a
823 direct contract to repair or replace an existing heating or air
824 conditioning system in an amount less than $7,500.
825 (f)(e) Not require that a notice of commencement be
826 recorded as a condition of the application for, or processing or
827 issuance of, a building permit. However, this paragraph does not
828 modify or waive the inspection requirements set forth in this
829 subsection.
830 (g) Not require that a notice of commencement be recorded
831 or provided for those projects described in s. 713.137(2).
832 (2) An issuing authority under subsection (1) is not liable
833 in any civil action for the failure of the person whose property
834 is subject to attachment to receive or to be delivered the
835 general statement of an owner’s rights and responsibilities
836 under Florida’s a printed statement stating that the right,
837 title, and interest of the person who has contracted for the
838 improvement may be subject to attachment under the Construction
839 Lien Law as provided in s. 713.015.
840 (3) An issuing authority under subsection (1) is not liable
841 in any civil action for the failure to verify that a certified
842 copy of the recorded notice of commencement has been filed in
843 accordance with this section.
844 (4) The several boards of county commissioners, municipal
845 councils, or other similar bodies may by ordinance or resolution
846 establish reasonable fees for furnishing, upon request, copies
847 of the forms and the printed statement provided in paragraph
848 (1)(a) paragraphs (1)(b) and (d) in an amount not to exceed $5
849 to be paid by the applicant for each permit in addition to all
850 other costs of the permit; however, no forms or statement need
851 be furnished, mailed, or otherwise provided to, nor may such
852 additional fee be obtained from, applicants for permits in those
853 cases in which the owner of a legal or equitable interest
854 (including that of ownership of stock of a corporate landowner)
855 of the real property to be improved is engaged in the business
856 of construction of buildings for sale to others and intends to
857 make the improvements authorized by the permit on the property
858 and upon completion will offer the improved real property for
859 sale.
860 (5) In addition to any other information required by the
861 authority issuing the permit, each building permit application
862 must contain:
863 (a) The name and address of the owner of the real property;
864 (b) The name and address of the contractor;
865 (c) A description sufficient to identify the real property
866 to be improved; and
867 (d) The number or identifying symbol assigned to the
868 building permit by the issuing authority, which number or symbol
869 must be affixed to the application by the issuing authority.
870 (6)(a) In addition to any other information required by the
871 authority issuing the permit, the building permit application
872 must be in substantially the following form:
873
874 Tax Folio No.........
875 BUILDING PERMIT APPLICATION
876
877 Owner’s Name....................................................
878 Owner’s Address.................................................
879 Fee Simple Titleholder’s Name (If other than owner).............
880 Fee Simple Titleholder’s Address (If other than owner)..........
881 City............................................................
882 State............ Zip............
883 Contractor’s Name...............................................
884 Contractor’s Address............................................
885 City............................................................
886 State............ Zip............
887 Job Name........................................................
888 Job Address.....................................................
889 City................ County............
890 Legal Description...............................................
891 Bonding Company.................................................
892 Bonding Company Address.........................................
893 City................ State............
894 Architect/Engineer’s Name.......................................
895 Architect/Engineer’s Address....................................
896 Mortgage Lender’s Name..........................................
897 Mortgage Lender’s Address.......................................
898
899 Application is hereby made to obtain a permit to do the
900 work and installations as indicated. I certify that no work or
901 installation has commenced prior to the issuance of a permit and
902 that all work will be performed to meet the standards of all
903 laws regulating construction in this jurisdiction. I understand
904 that a separate permit must be secured for ELECTRICAL WORK,
905 PLUMBING, SIGNS, WELLS, POOLS, FURNACES, BOILERS, HEATERS,
906 TANKS, and AIR CONDITIONERS, etc.
907
908 OWNER’S AFFIDAVIT: I certify that all the foregoing information
909 is accurate and that all work will be done in compliance with
910 all applicable laws regulating construction and zoning.
911
912 WARNING TO OWNER: IF YOU FAIL YOUR FAILURE TO RECORD A
913 NOTICE OF COMMENCEMENT, YOU MAY PAY RESULT IN YOUR
914 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A
915 NOTICE OF COMMENCEMENT, AND THE CONTRACTOR’S PAYMENT
916 BOND IF THE PROJECT IS BONDED, MUST BE RECORDED AND
917 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION.
918
919 IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
920 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR
921 RECORDING YOUR NOTICE OF COMMENCEMENT.
922
923 ...(Signature of Owner or Agent)...
924
925 ...(including contractor)...
926 STATE OF FLORIDA
927 COUNTY OF ....
928
929 Sworn to (or affirmed) and subscribed before me this ....
930 day of ...., ...(year)..., by ...(name of person making
931 statement)....
932
933 ...(Signature of Notary Public - State of Florida)...
934 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
935
936 Personally Known .... OR Produced Identification ....
937
938 Type of Identification Produced............
939 ...(Signature of Contractor)...
940
941 STATE OF FLORIDA
942 COUNTY OF ....
943
944 Sworn to (or affirmed) and subscribed before me this ....
945 day of ...., ...(year)..., by ...(name of person making
946 statement)....
947 ...(Signature of Notary Public - State of Florida)...
948 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
949
950 Personally Known .... OR Produced Identification ....
951
952 Type of Identification Produced............
953 (Certificate of Competency Holder)
954
955 Contractor’s State Certification or Registration No.....
956
957 Contractor’s Certificate of Competency No.........
958
959 APPLICATION APPROVED BY
960 ................Permit Officer
961 (b) Consistent with the requirements of paragraph (a), an
962 authority responsible for issuing building permits under this
963 section may accept a building permit application in an
964 electronic format, as prescribed by the authority. Building
965 permit applications submitted to the authority electronically
966 must contain the following additional statement in lieu of the
967 requirement in paragraph (a) that a signed, sworn, and notarized
968 signature of the owner or agent and the contractor be part of
969 the owner’s affidavit:
970
971 OWNER’S ELECTRONIC SUBMISSION STATEMENT: Under penalty of
972 perjury, I declare that all the information contained in this
973 building permit application is true and correct.
974 (c) An authority responsible for issuing building permit
975 applications which accepts building permit applications in an
976 electronic format shall provide public Internet access to the
977 electronic building permit applications in a searchable format.
978 (7) This section applies to every municipality and county
979 in the state which now has or hereafter may have a system of
980 issuing building permits for the construction of improvements or
981 for the alteration or repair of improvements on or to real
982 property located within the geographic limits of the issuing
983 authority.
984 Section 6. Section 713.137, Florida Statutes, is created to
985 read:
986 713.137 Prerequisites to inspection of improvements;
987 exceptions.—
988 (1) The authority issuing a building permit or a private
989 provider performing inspection services may not inspect the real
990 property being improved unless:
991 (a) The following documents have been filed with the
992 issuing authority:
993 1.a. A certified copy of the recorded notice of
994 commencement; or
995 b. A notarized statement that the notice of commencement
996 has been filed for recording, along with a copy of the notice.
997 2. If the permit is for a commercial project:
998 a. A copy of the contractor’s recorded payment bond; or
999 b. A notarized statement of the contractor or owner stating
1000 that a payment bond was not required.
1001 3. A signed copy of the general statement of owner’s rights
1002 and responsibilities under Florida’s Construction Lien Law, if
1003 required by s. 713.015.
1004 (b) The information in the notice of commencement filed
1005 with the issuing authority has been verified by the issuing
1006 authority to be legible, complete, and consistent with the
1007 building permit application.
1008 (2) This section does not apply to inspections of the
1009 following improvements:
1010 (a) The installation of temporary electrical service or
1011 other temporary utility service, land clearing, or other
1012 preliminary site work.
1013 (b) Improvements pursuant to a direct contract in an amount
1014 of $5,000 or less.
1015 (c) The repair or replacement of a heating or air
1016 conditioning system pursuant to a direct contract in an amount
1017 of $7,500 or less.
1018 (d) The installation of a solar hot water system pursuant
1019 to a direct contract in an amount of $7,500 or less.
1020 Section 7. Section 713.16, Florida Statutes, is amended to
1021 read:
1022 713.16 Demand for copy of contract and statements of
1023 account; form.—
1024 (1) A copy of the contract of a lienor or owner and a
1025 statement of the amount due or to become due if fixed or
1026 ascertainable thereon must be furnished by any party thereto,
1027 upon written demand of an owner or a lienor contracting with or
1028 employed by the other party to such contract. If the owner or
1029 lienor refuses or neglects to furnish such copy of the contract
1030 or such statement, or willfully and falsely states the amount
1031 due or to become due if fixed or ascertainable under such
1032 contract, any person who suffers any detriment thereby has a
1033 cause of action against the person refusing or neglecting to
1034 furnish the same or willfully and falsely stating the amount due
1035 or to become due for his or her damages sustained thereby. The
1036 information contained in such copy or statement furnished
1037 pursuant to such written demand is binding upon the owner or
1038 lienor furnishing it unless actual notice of any modification is
1039 given to the person demanding the copy or statement before such
1040 person acts in good faith in reliance on it. The person
1041 demanding such documents must pay for the reproduction thereof;
1042 and, if such person fails or refuses to do so, he or she is
1043 entitled only to inspect such documents at reasonable times and
1044 places.
1045 (2) The owner may serve in writing a demand of any lienor
1046 for a written statement under oath of his or her account showing
1047 the nature of the labor or services performed and to be
1048 performed, if any, the materials furnished, the materials to be
1049 furnished, if known, the amount paid on account to date, the
1050 amount due, and the amount to become due, if known, as of the
1051 date of the statement by the lienor. Any such demand to a lienor
1052 must be served on the lienor at the address and to the attention
1053 of any person who is designated to receive the demand in the
1054 notice to owner served by such lienor and must include a
1055 description of the project, including the names of the owner,
1056 the contractor, and the lienor’s customer, as set forth in the
1057 lienor’s notice to owner, sufficient for the lienor to properly
1058 identify the account in question. The failure or refusal to
1059 furnish the statement does not deprive the lienor of his or her
1060 lien if the demand is not served at the address of the lienor or
1061 directed to the attention of the person designated to receive
1062 the demand in the notice to owner. The failure or refusal to
1063 furnish the statement under oath within 30 days after the
1064 demand, or the furnishing of a false or fraudulent statement,
1065 deprives the person so failing or refusing to furnish such
1066 statement of his or her lien. If the owner serves more than one
1067 demand for statement of account on a lienor and none of the
1068 information regarding the account has changed since the lienor’s
1069 last response to a demand, the failure or refusal to furnish
1070 such statement does not deprive the lienor of his or her lien.
1071 The negligent inclusion or omission of any information deprives
1072 the person of his or her lien to the extent the owner can
1073 demonstrate prejudice from such act or omission by the lienor.
1074 The failure to furnish a response to a demand for statement of
1075 account does not affect the validity of any claim of lien being
1076 enforced through a foreclosure case filed prior to the date the
1077 demand for statement is received by the lienor.
1078 (3) A request for sworn statement of account must be in
1079 substantially the following form:
1080 REQUEST FOR SWORN STATEMENT OF ACCOUNT
1081
1082 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED
1083 UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
1084 STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
1085
1086 To: ...(Lienor’s name and address)...
1087
1088 The undersigned hereby demands a written statement under oath of
1089 his or her account showing the nature of the labor or services
1090 performed and to be performed, if any, the materials furnished,
1091 the materials to be furnished, if known, the amount paid on
1092 account to date, the amount due, and the amount to become due,
1093 if known, as of the date of the statement for the improvement of
1094 real property identified as ......(property description).......
1095 Name of contractor: .............
1096 Name of the lienor’s customer (as specified in the lienor’s
1097 Notice to Owner, if such notice has been served): .............
1098 ...(signature and address of owner)...
1099 ......(date of request for sworn statement of account)......
1100 (4) When a contractor has furnished a payment bond pursuant
1101 to s. 713.23, he or she may, when an owner makes any payment to
1102 the contractor or directly to a lienor, serve a written demand
1103 on any other lienor for a written statement under oath of his or
1104 her account showing the nature of the labor or services
1105 performed and to be performed, if any, the materials furnished,
1106 the materials to be furnished, if known, the amount paid on
1107 account to date, the amount due, and the amount to become due,
1108 if known, as of the date of the statement by the lienor. Any
1109 such demand to a lienor must be served on the lienor at the
1110 address and to the attention of any person who is designated to
1111 receive the demand in the notice to contractor served by such
1112 lienor. The demand must include a description of the project,
1113 the names of the owner, the contractor, and the lienor’s
1114 customer, as set forth in the lienor’s notice to contractor,
1115 sufficient for the lienor to properly identify the account in
1116 question. The failure or refusal to furnish the statement does
1117 not deprive the lienor of his or her rights under the bond if
1118 the demand is not served at the address of the lienor or
1119 directed to the attention of the person designated to receive
1120 the demand in the notice to contractor. The failure to furnish
1121 the statement within 30 days after the demand, or the furnishing
1122 of a false or fraudulent statement, deprives the person who
1123 fails to furnish the statement, or who furnishes the false or
1124 fraudulent statement, of his or her rights under the bond. If
1125 the contractor serves more than one demand for statement of
1126 account on a lienor and none of the information regarding the
1127 account has changed since the lienor’s last response to a
1128 demand, the failure or refusal to furnish such statement does
1129 not deprive the lienor of his or her rights under the bond. The
1130 negligent inclusion or omission of any information deprives the
1131 person of his or her rights under the bond to the extent the
1132 contractor can demonstrate prejudice from such act or omission
1133 by the lienor. The failure to furnish a response to a demand for
1134 statement of account does not affect the validity of any claim
1135 on the bond being enforced in a lawsuit filed prior to the date
1136 the demand for statement of account is received by the lienor.
1137 (5)(a) Any lienor who submits or mails has recorded a claim
1138 of lien to the clerk for recording may make written demand on
1139 the owner for a written statement under oath showing:
1140 1. The amount of the direct contract under which the lien
1141 was recorded;
1142 2. The dates and amounts paid or to be paid by or on behalf
1143 of the owner for all improvements described in the direct
1144 contract;
1145 3. The reasonable estimated costs of completing the direct
1146 contract under which the lien was claimed pursuant to the scope
1147 of the direct contract; and
1148 4. If known, the actual cost of completion.
1149 (b) Any owner who does not provide the statement within 30
1150 days after demand, or who provides a false or fraudulent
1151 statement, is not a prevailing party for purposes of an award of
1152 attorney’s fees under s. 713.29. The written demand must include
1153 the following warning in conspicuous type in substantially the
1154 following form:
1155 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT
1156 WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL
1157 RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY
1158 ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING
1159 THIS STATEMENT.
1160 (6) Any written demand served on the owner must include a
1161 description of the project, the names of the contractor and the
1162 lienor’s customer, as set forth in the lienor’s notice to owner,
1163 sufficient for the owner to properly identify the project in
1164 question.
1165 (7)(6) For purposes of this section, the term “information”
1166 means the nature and quantity of the labor, services, and
1167 materials furnished or to be furnished by a lienor and the
1168 amount paid, the amount due, and the amount to become due on the
1169 lienor’s account.
1170 Section 8. Section 713.18, Florida Statutes, is amended to
1171 read:
1172 713.18 Manner of serving notices and other instruments.—
1173 (1) Service of notices, claims of lien, affidavits,
1174 assignments, and other instruments permitted or required under
1175 this part, or copies thereof when so permitted or required,
1176 unless otherwise specifically provided in this part, must be
1177 made by one of the following methods:
1178 (a) By actual delivery to the person to be served; if a
1179 partnership, to one of the partners; if a corporation, to an
1180 officer, director, managing agent, or business agent; or, if a
1181 limited liability company, to a member or manager.
1182 (b) By sending the same by common carrier delivery service
1183 or by registered, global express guaranteed, or certified mail,
1184 with postage or shipping paid by the sender prepaid, and or by
1185 overnight or second-day delivery with evidence of delivery,
1186 which may be in an electronic format.
1187 (c) If the method specified in paragraph (a) or paragraph
1188 (b) cannot be accomplished, By posting on the site of the
1189 improvement if service as provided by paragraph (a) or paragraph
1190 (b) cannot be accomplished premises.
1191 (2) Notwithstanding subsection (1), service of if a notice
1192 to owner, a notice to contractor under s. 713.23, or a
1193 preliminary notice under s. 255.05 is mailed by registered or
1194 certified mail with postage prepaid to the person to be served
1195 at any of the addresses set forth in subsection (3) within 40
1196 days after the date the lienor first furnishes labor, services,
1197 or materials, service of that notice is effective as of the date
1198 of mailing if:
1199 (a) The notice is mailed by registered, global express
1200 guaranteed, or certified mail, with postage prepaid, to the
1201 person to be served at any of the addresses set forth in
1202 subsection (3);
1203 (b) The notice is mailed within 40 days after the date the
1204 lienor first furnishes labor, services, or materials; and
1205 (c)1. The person who served the notice maintains a
1206 registered or certified mail log that shows the registered or
1207 certified mail number issued by the United States Postal
1208 Service, the name and address of the person served, and the date
1209 stamp of the United States Postal Service confirming the date of
1210 mailing; or if
1211 2. The person who served the notice maintains electronic
1212 tracking records generated through use of the United States
1213 Postal Service Confirm service or a similar service containing
1214 the postal tracking number, the name and address of the person
1215 served, and verification of the date of receipt by the United
1216 States Postal Service.
1217 (3)(a) Service of If an instrument served pursuant to this
1218 section is effective on the date of mailing if the instrument:
1219 1. Is sent to the last address shown in the notice of
1220 commencement or any amendment thereto or, in the absence of a
1221 notice of commencement, to the last address shown in the
1222 building permit application, or to the last known address of the
1223 person to be served; and, is not received, but
1224 2. Is returned as being “refused,” “moved, not
1225 forwardable,” or “unclaimed,” or is otherwise not delivered or
1226 deliverable through no fault of the person serving the item,
1227 then service is effective on the date the instrument was sent.
1228 (b) If the address shown in the notice of commencement or
1229 any amendment to the notice, or, in the absence of a notice of
1230 commencement, in the building permit application, is incomplete
1231 for purposes of mailing or delivery, the person serving the item
1232 may complete the address and properly format it according to
1233 United States Postal Service addressing standards using
1234 information obtained from the property appraiser or another
1235 public record or directory without affecting the validity of
1236 service under this section.
1237 (4) A notice served by a lienor on one owner or one partner
1238 of a partnership owning the real property If the real property
1239 is owned by more than one person or a partnership, a lienor may
1240 serve any notices or other papers under this part on any one of
1241 such owners or partners, and such notice is deemed notice to all
1242 owners and partners.
1243 Section 9. Section 713.22, Florida Statutes, is amended to
1244 read:
1245 713.22 Duration of lien.—
1246 (1) A No lien provided by this part does not shall continue
1247 for a longer period than 1 year after the claim of lien has been
1248 recorded or 1 year after the recording of an amended claim of
1249 lien that shows a later date of final furnishing of labor,
1250 services, or materials, unless within that time an action to
1251 enforce the lien is commenced in a court of competent
1252 jurisdiction. A lien that has been continued beyond the 1-year
1253 period The continuation of the lien effected by the commencement
1254 of an the action is shall not enforceable be good against
1255 creditors or subsequent purchasers for a valuable consideration
1256 and without notice, unless a notice of lis pendens is recorded.
1257 (2) An owner or the owner’s agent or attorney may elect to
1258 shorten the time prescribed in subsection (1) within which to
1259 commence an action to enforce any claim of lien or claim against
1260 a bond or other security under s. 713.23 or s. 713.24 by
1261 recording in the clerk’s office a notice in substantially the
1262 following form:
1263 NOTICE OF CONTEST OF LIEN
1264 To: ...(Name and address of lienor)...
1265 You are notified that the undersigned contests the claim of lien
1266 filed by you on ...., ...(year)..., and recorded in .... Book
1267 ...., Page ...., of the public records of .... County, Florida,
1268 and that the time within which you may file suit to enforce your
1269 lien is limited to 60 days from the date of service of this
1270 notice. This .... day of ...., ...(year).....
1271 Signed: ...(Owner or Attorney)...
1272
1273 The lien of any lienor upon whom such notice is served and who
1274 fails to institute a suit to enforce his or her lien within 60
1275 days after service of such notice shall be extinguished
1276 automatically. The owner or the owner’s attorney clerk shall
1277 serve mail a copy of the notice of contest to the lien claimant
1278 at the address shown in the claim of lien or most recent
1279 amendment thereto and shall certify to such service on the face
1280 of such notice and record the notice. Service shall be deemed
1281 complete upon mailing.
1282 Section 10. Paragraphs (c), (d), and (e) of subsection (1)
1283 and subsections (2) and (4) of section 713.23, Florida Statutes,
1284 are amended to read:
1285 713.23 Payment bond.—
1286 (1)
1287 (c) Either before beginning or within 45 days after
1288 beginning to furnish labor, materials, or supplies, a lienor who
1289 is not in privity with the contractor, except a laborer, shall
1290 serve the contractor with notice in writing that the lienor will
1291 look to the contractor’s bond for protection on the work. If a
1292 notice of commencement is not recorded, or a reference to the
1293 bond is not given in the notice of commencement, and in either
1294 case if the lienor not in privity with the contractor is not
1295 otherwise notified in writing of the existence of the bond, the
1296 lienor not in privity with the contractor shall have 45 days
1297 from the date the lienor is notified of the existence of the
1298 bond within which to serve the notice. The notice must may be in
1299 substantially the following form:
1300
1301 NOTICE TO CONTRACTOR
1302
1303 To ...(name and address of contractor)...
1304
1305 This notice is to inform you that the lienor identified below
1306 intends to look to the contractor’s bond to secure payment for
1307 the furnishing of materials or services for the improvement of
1308 real property. These materials or services have been furnished
1309 or are being furnished to: ...(property description)..., which
1310 is owned by: ...(owner’s name and address).... A general
1311 description of the materials or services is as follows:
1312 ...(general description of materials or services).... The
1313 materials or services were ordered by: ...(lienor’s
1314 customer)....
1315
1316 ... (name of lienor)...
1317 ...(signature of lienor or lienor’s
1318 representative)......(date)...
1319 ...(lienor’s address)...
1320
1321 The undersigned notifies you that he or she has furnished or is
1322 furnishing ...(services or materials)... for the improvement of
1323 the real property identified as ...(property description)...
1324 owned by ...(owner’s name and address)... under an order given
1325 by .... and that the undersigned will look to the contractor’s
1326 bond for protection on the work.
1327
1328 ...(Lienor’s signature and address)...
1329
1330 (d) In addition, a lienor is required, as a condition
1331 precedent to recovery under the bond, to serve a written notice
1332 of nonpayment to the contractor and the surety not later than 90
1333 days after the final furnishing of labor, services, or materials
1334 by the lienor. The notice of nonpayment must state, as of the
1335 date of the notice, the nature of the labor or services
1336 performed and to be performed, if any; the materials furnished;
1337 the materials to be furnished, if known; the amount paid on
1338 account to date; the amount due; the amount to become due, if
1339 known; and the date that the notice to contractor, if any, was
1340 served on the contractor. Any notice of nonpayment served by a
1341 lienor who is not in privity with the contractor which includes
1342 sums for retainage must specify the portion of the amount
1343 claimed for retainage. The notice of nonpayment shall be a sworn
1344 statement and may be served at any time during the progress of
1345 the work or thereafter, but not later than 90 days after the
1346 final furnishing of the labor, services, or materials by the
1347 lienor or, with respect to rental equipment, not later than 90
1348 days after the date that the rental equipment was last on the
1349 job site available for use. This A written notice satisfies the
1350 this condition precedent with respect to the payment described
1351 in the notice of nonpayment, including unpaid finance charges
1352 due under the lienor’s contract, and with respect to any other
1353 payments which become due to the lienor after the date of the
1354 notice of nonpayment. The time period for serving a written
1355 notice of nonpayment shall be measured from the last day of
1356 furnishing labor, services, or materials by the lienor and shall
1357 not be measured by other standards, such as the issuance of a
1358 certificate of occupancy or the issuance of a certificate of
1359 substantial completion. The failure of a lienor to receive
1360 retainage sums not in excess of 10 percent of the value of
1361 labor, services, or materials furnished by the lienor is not
1362 considered a nonpayment requiring the service of the notice
1363 provided under this paragraph. The notice under this paragraph
1364 must may be in substantially the following form:
1365 NOTICE OF NONPAYMENT
1366 To: ...(name and address of contractor)...
1367 ...(name and address of surety)...
1368
1369 This notice is to inform you that, as of the date of this
1370 notice, the lienor identified below has not been fully paid for
1371 furnishing labor, services, or materials for an improvement to
1372 real property. The labor, services, or materials have been
1373 furnished to: ...(property description)..., which is owned by:
1374 ...(owner’s name and address).... A general description of the
1375 labor, services, or materials is as follows: ...(general
1376 description of labor, services, or materials).... The labor,
1377 services, or materials were ordered by: ...(lienor’s
1378 customer)....
1379
1380 The amount paid by ...(lienor’s customer)... as of the date of
1381 this notice for the labor, services, or materials is: $..... The
1382 total amount currently due and unpaid is $...., with $.... of
1383 that amount attributable to retainage.
1384
1385 You are further notified that the lienor identified below
1386 expects to furnish additional labor, services, or materials for
1387 the improvement ordered by the same customer. A general
1388 description of the additional labor, services, or materials is
1389 as follows: ...(general description of labor, services, or
1390 materials).... The additional amount expected to become due is:
1391 $.....
1392
1393 If applicable, a notice to contractor pursuant to section
1394 713.23(1)(c), Florida Statutes, was served on ...(name of
1395 contractor)... on ...(date)....
1396
1397 ...(name of lienor)...
1398 ...(signature of lienor or lienor’s
1399 representative)......(date)...
1400 ...(lienor’s address)...
1401
1402 Sworn to (or affirmed) and subscribed before me this .... day of
1403 .... ,..(year).., by ...(name of person making statement)....
1404 ...(Signature of Notary Public...... (Print, Type, or Stamp
1405 Commissioned Name of Notary Public)...
1406
1407 Personally Known .... OR Produced ...... as identification.
1408 To ...(name of contractor and address)...
1409
1410 ...(name of surety and address)...
1411
1412 The undersigned notifies you that he or she has furnished
1413 ...(describe labor, services, or materials)... for the
1414 improvement of the real property identified as ...(property
1415 description).... The amount now due and unpaid is $.....
1416
1417 ...(signature and address of lienor)...
1418
1419 (e) An No action for the labor or materials or supplies may
1420 not be instituted or prosecuted against the contractor or surety
1421 unless both notices have been given, if required by this
1422 section. An No action may not shall be instituted or prosecuted
1423 against the contractor or against the surety on the bond under
1424 this section after 1 year from the performance of the labor or
1425 completion of delivery of the materials and supplies. The time
1426 period for bringing an action against the contractor or surety
1427 on the bond shall be measured from the last day of furnishing
1428 labor, services, or materials by the lienor. The time period may
1429 and shall not be measured by other standards, such as the
1430 issuance of a certificate of occupancy or the issuance of a
1431 certificate of substantial completion. A contractor or the
1432 contractor’s agent or attorney may elect to shorten the
1433 prescribed time within which an action to enforce any claim
1434 against a payment bond provided under this section or s. 713.245
1435 must may be commenced at any time after a notice of nonpayment,
1436 if required, has been served for the claim by recording in the
1437 clerk’s office a notice in substantially the following form:
1438 NOTICE OF CONTEST OF CLAIM
1439 AGAINST PAYMENT BOND
1440 To: ...(Name and address of lienor)...
1441 You are notified that the undersigned contests your notice
1442 of nonpayment, dated ...., ...., and served on the undersigned
1443 on ...., ...., and that the time within which you may file suit
1444 to enforce your claim is limited to 60 days from the date of
1445 service of this notice.
1446
1447 DATED on ...., .....
1448
1449 Signed: ...(Contractor or Attorney)...
1450
1451 The claim of any lienor upon whom the notice is served and who
1452 fails to institute a suit to enforce his or her claim against
1453 the payment bond within 60 days after service of the notice
1454 shall be extinguished automatically. The contractor or the
1455 contractor’s attorney clerk shall serve mail a copy of the
1456 notice of contest to the lienor at the address shown in the
1457 notice of nonpayment or most recent amendment thereto and shall
1458 certify to such service on the face of the notice and record the
1459 notice. Service is complete upon mailing.
1460 (2) The bond shall secure every lien under the direct
1461 contract accruing subsequent to its execution and delivery,
1462 except that of the contractor. Every claim of lien, except that
1463 of the contractor, filed subsequent to execution and delivery of
1464 the bond shall be transferred to it with the same effect as
1465 liens transferred under s. 713.24. Record notice of the transfer
1466 shall be effected by the contractor, or any person having an
1467 interest in the property against which the claim of lien has
1468 been asserted, by recording in the clerk’s office a notice in
1469 substantially the following form:
1470 NOTICE OF BOND
1471
1472 To ...(Name and Address of Lienor)...
1473
1474 You are notified that the claim of lien filed by you on ....,
1475 ...., and recorded in Official Records Book .... at page .... of
1476 the public records of .... County, Florida, is secured by a
1477 bond, a copy being attached.
1478
1479 Signed: ...(Name of person recording notice)...
1480
1481 The notice shall be verified. The person recording the notice of
1482 bond clerk shall serve mail a copy of the notice along with a
1483 copy of the bond to the lienor at the address shown in the claim
1484 of lien, or the most recent amendment to it; shall certify to
1485 the service on the face of the notice; and shall record the
1486 notice. The clerk shall receive the same fee as prescribed in s.
1487 713.24(1) for certifying to a transfer of lien.
1488 (4) The provisions of s. 713.24(3) shall apply to bonds
1489 under this section.
1490 Section 11. This act shall take effect October 1, 2011.