CODING: Words stricken are deletions; words underlined are additions.House Bill 3319
Florida House of Representatives - 1998 HB 3319
By Representative Merchant
1 A bill to be entitled
2 An act relating to liens; amending s. 255.05,
3 F.S.; revising language with respect to the
4 bond of a contractor constructing public
5 buildings; revising timeframes with respect to
6 claims under the bond; providing an expedited
7 time period for certain claims; providing for
8 protection for contractors and surety under
9 certain circumstances; providing for written
10 statements to the contractor with respect to
11 the nature of labor or services performed under
12 certain circumstances; amending s. 713.06,
13 F.S.; revising language with respect to liens
14 of persons not in privity; reducing a time
15 period for the service of certain notice;
16 providing for protection of contractors and
17 surety under certain circumstances; amending s.
18 713.13, F.S.; revising language with respect to
19 notice of commencement; providing that certain
20 payments made prior to recording of the notice
21 are improper; amending s. 713.16, F.S.;
22 authorizing the contractor to serve a demand
23 for copy of contract and statements of account
24 under certain circumstances; amending s.
25 713.20, F.S.; revising the waiver or release of
26 liens form; amending s. 713.23, F.S.; reducing
27 a time period for a lienor not in privity with
28 the contractor to file notice for protection
29 under the bond; providing for a shortened
30 timeframe for the commencement of certain
31 actions to enforce a claim against the payment
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1 bond; providing a form; providing for
2 discharge; creating s. 713.235, F.S.; providing
3 for waivers of right to claim against a payment
4 bond; providing forms; providing an effective
5 date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Paragraphs (a), (b), and (c) of subsection
10 (2) of section 255.05, Florida Statutes, are amended, and
11 subsections (8) and (9) are added to said section, to read:
12 255.05 Bond of contractor constructing public
13 buildings; form; action by materialmen.--
14 (2)(a)1. A contractor or the contractor's agent or
15 attorney may elect to shorten the time prescribed in this
16 paragraph within which an action to enforce any claim against
17 a payment bond provided pursuant to s. 255.05 may be commenced
18 by serving on the affected claimant a notice in substantially
19 the following form:
20
21 NOTICE OF CONTEST OF CLAIM AGAINST PAYMENT BOND
22 To: ...(Name and address of claimant)...
23 You are notified that the undersigned contests your
24 notice of nonpayment, dated , , and served on the
25 undersigned on , , and that the time within which
26 you may file suit to enforce your claim is limited to 60 days
27 from the date of service of this notice.
28 DATED on , .
29 Signed: ...(Contractor or Attorney)...
30
31
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1 The claim of any claimant upon whom such notice is served and
2 who fails to institute a suit to enforce his or her claim
3 against the payment bond within 60 days after service of such
4 notice shall be extinguished automatically. The clerk shall
5 mail a copy of the notice of contest to the claimant at the
6 address shown in the notice of nonpayment and shall certify to
7 such service on the face of the notice of contest and record
8 the notice. Service shall be deemed complete upon mailing.
9 2. A claim against a payment bond provided pursuant to
10 this section may be discharged by an order of the circuit
11 court of the county where the property is located in the
12 following manner: upon filing a complaint therefor by any
13 interested party, the clerk shall issue a summons to the
14 claimant to show cause within 20 days why his or her claim
15 against the payment bond should not be enforced by action or
16 extinguished. Upon failure of the claimant to show cause why
17 his or her claim against the payment bond should not be
18 enforced or upon the claimant's failure to commence such
19 action before the return date of the summons, the court shall
20 issue an order extinguishing the claim.
21 3. A claimant, except a laborer, who is not in privity
22 with the contractor shall, before commencing or not later than
23 30 45 days after commencing to furnish labor, materials, or
24 supplies for the prosecution of the work, furnish the
25 contractor with a notice that he or she intends to look to the
26 bond for protection. A claimant who is not in privity with
27 the contractor and who has not received payment for his or her
28 labor, materials, or supplies shall deliver to the contractor
29 and to the surety written notice of the performance of the
30 labor or delivery of the materials or supplies and of the
31 nonpayment. The notice of nonpayment may be served at any time
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1 during the progress of the work or thereafter but not before
2 30 45 days after the first furnishing of labor, services, or
3 materials, and not later than 90 days after the final
4 furnishing of the labor, services, or materials by the
5 claimant or, with respect to rental equipment, not later than
6 90 days after the date that the rental equipment was last on
7 the job site available for use. No action for the labor,
8 materials, or supplies may be instituted against the
9 contractor or the surety unless both notices have been given.
10 No action shall be instituted against the contractor or the
11 surety on the payment bond or the payment provisions of a
12 combined payment and performance bond after 1 year from the
13 performance of the labor or completion of delivery of the
14 materials or supplies. A claimant may not waive in advance
15 his or her right to bring an action under the bond against the
16 surety. In any action brought to enforce a claim against a
17 payment bond under this section, the prevailing party is
18 entitled to recover a reasonable fee for the services of his
19 or her attorney for trial and appeal or for arbitration, in an
20 amount to be determined by the court, which fee must be taxed
21 as part of the prevailing party's costs, as allowed in
22 equitable actions.
23 (b) When a person is required to execute a waiver of
24 his or her right to make a claim against the payment bond in
25 exchange for, or to induce payment of, a progress payment, the
26 waiver may be in substantially the following form:
27
28 WAIVER OF RIGHT TO CLAIM
29 AGAINST THE PAYMENT BOND
30 (PROGRESS PAYMENT)
31
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1 The undersigned, in consideration of the sum of $....,
2 hereby waives its right to claim against the payment bond
3 provided pursuant to s. 255.05, Florida Statutes, for labor,
4 services, or materials furnished through ...(insert date)...
5 to ...(insert the name of your customer)... on the job of
6 ...(insert the name of the owner)..., for improvements to the
7 following described project:
8
9 (description of project)
10
11 This waiver does not cover any retention or labor, services,
12 or materials furnished after the date specified.
13
14 Released Parties:
15 Contractor:........ Surety:........
16 DATED ON ........, 19....
17 ...(Claimant)...
18 By:............
19
20 (c) When a person is required to execute a waiver of
21 his or her right to make a claim against the payment bond, in
22 exchange for, or to induce payment of, the final payment, the
23 waiver may be in substantially the following form:
24
25 WAIVER OF RIGHT TO CLAIM
26 AGAINST THE PAYMENT BOND (FINAL PAYMENT)
27
28 The undersigned, in consideration of the final payment
29 in the amount of $...., hereby waives its right to claim
30 against the payment bond provided pursuant to s. 255.05,
31 Florida Statutes, for labor, services, or materials furnished
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1 to ...(insert the name of your customer)... on the job of
2 ...(insert the name of the owner)..., for improvements to the
3 following described project:
4
5 (description of project)
6
7 Released Parties:
8 Contractor:........ Surety:........
9 DATED ON ........, 19....
10 ...(Claimant)...
11 By:............
12
13 (8) When a contractor furnishes a payment bond
14 pursuant to this section and follows the proper payment
15 procedure set forth in s. 713.06, the contractor and surety
16 are entitled to the same protections as are afforded to an
17 owner under s. 713.06.
18 (9) When a contractor has furnished a payment bond
19 pursuant to this section, he or she may, when the state,
20 county, city, political subdivision, or other public authority
21 makes any payment to the contractor or directly to a claimant,
22 serve a written demand on any other claimant for a written
23 statement under oath of his or her account showing the nature
24 of the labor or services performed and to be performed, if
25 any; the materials furnished; the materials to be furnished,
26 if known; the amount paid on account to date; the amount due;
27 and the amount to become due, if known, as of the date of the
28 statement by the lienor. Any such demand to a claimant must be
29 served on the claimant at the address and to the attention of
30 any person who is designated to receive the demand in the
31 notice to contractor served by such claimant. The failure or
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1 refusal to furnish the statement does not deprive the claimant
2 of his or her rights under the bond if the demand is not
3 served at the address of the claimant or directed to the
4 attention of the person designated to receive the demand in
5 the notice to contractor. The failure to furnish the statement
6 within 30 days after the demand, or the furnishing of a false
7 or fraudulent statement, deprives the person who fails to
8 furnish the statement, or who furnishes the false or
9 fraudulent statement, of his or her rights under the bond. If
10 the contractor serves more than one demand for statement of
11 account on a claimant and none of the information regarding
12 the account has changed since the claimant's last response to
13 a demand, the failure or refusal to furnish such statement
14 does not deprive the claimant of his or her rights under the
15 bond. The negligent inclusion or omission of any information
16 deprives the person of his or her rights under the bond to the
17 extent the contractor can demonstrate prejudice from such act
18 or omission by the claimant. The failure to furnish a response
19 to a demand for statement of account does not affect the
20 validity of any claim on the bond being enforced in a lawsuit
21 filed prior to the date the demand for statement of account is
22 received by the claimant.
23 Section 2. Paragraph (a) of subsection (2), and
24 paragraph (d) of subsection (3) of section 713.06, Florida
25 Statutes, are amended, and subsection (5) is added to said
26 section, to read:
27 713.06 Liens of persons not in privity; proper
28 payments.--
29 (2)(a) All lienors under this section, except
30 laborers, as a prerequisite to perfecting a lien under this
31 chapter and recording a claim of lien, must serve a notice on
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1 the owner setting forth the lienor's name and address, a
2 description sufficient for identification of the real
3 property, and the nature of the services or materials
4 furnished or to be furnished. A sub-subcontractor or a
5 materialman to a subcontractor must serve a copy of the notice
6 on the contractor as a prerequisite to perfecting a lien under
7 this chapter and recording a claim of lien. A materialman to a
8 sub-subcontractor must serve a copy of the notice to owner on
9 the contractor as a prerequisite to perfecting a lien under
10 this chapter and recording a claim of lien. A materialman to a
11 sub-subcontractor shall serve the notice to owner on the
12 subcontractor if the materialman knows the name and address of
13 the subcontractor. The notice must be served before
14 commencing, or not later than 30 45 days after commencing, to
15 furnish his or her services or materials, but, in any event,
16 before the date of the owner's disbursement of the final
17 payment after the contractor has furnished the affidavit under
18 subparagraph (3)(d)1. The notice must be served regardless of
19 the method of payments by the owner, whether proper or
20 improper, and does not give to the lienor serving the notice
21 any priority over other lienors in the same category; and the
22 failure to serve the notice, or to timely serve it, is a
23 complete defense to enforcement of a lien by any person. The
24 serving of the notice does not dispense with recording the
25 claim of lien. The notice is not a lien, cloud, or encumbrance
26 on the real property nor actual or constructive notice of any
27 of them.
28 (3) The owner may make proper payments on the direct
29 contract as to lienors under this section, in the following
30 manner:
31
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1 (d) When the final payment under a direct contract
2 becomes due the contractor:
3 1. The contractor shall give to the owner an affidavit
4 stating, if that be the fact, that all lienors having valid
5 lien rights pursuant to this part under his or her direct
6 contract have been paid in full or, if the fact be otherwise,
7 showing the name of each lienor who has not been paid in full
8 and the amount due or to become due each for labor, services,
9 or materials furnished. The contractor shall have no lien or
10 right of action against the owner for labor, services, or
11 materials furnished under the direct contract while in default
12 for not giving the owner the affidavit; however, a mistake or
13 error in the affidavit which has not prejudiced the owner will
14 not constitute a default that operates to defeat an otherwise
15 valid lien. The contractor shall execute the affidavit and
16 deliver it to the owner at least 5 days before instituting an
17 action as a prerequisite to the institution of any action to
18 enforce his or her lien under this chapter, even if the final
19 payment has not become due because the contract is terminated
20 for a reason other than completion and regardless of whether
21 the contractor has any lienors working under him or her or
22 not.
23 2. If the contractor's affidavit required in this
24 subsection recites any outstanding bills for labor, services,
25 or materials, the owner may, after giving the contractor at
26 least 10 days' written notice, pay such bills in full direct
27 to the person or firm to which they are due, if the balance
28 due on a direct contract at the time the affidavit is given is
29 sufficient to pay them and lienors giving notice, and shall
30 deduct the amounts so paid from the balance due the
31 contractor. Lienors listed in said affidavit not giving
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1 notice, whose 45-day notice time has not expired, shall be
2 paid in full or pro rata, as appropriate, from any balance
3 then remaining due the contractor; but no lienor whose notice
4 time has expired shall be paid by the owner or by any other
5 person except the person with whom that lienor has a contract.
6 3. If the balance due is not sufficient to pay in full
7 all lienors listed in the affidavit and entitled to payment
8 from the owner under this part and other lienors giving
9 notice, the owner shall pay no money to anyone until such time
10 as the contractor has furnished him or her with the
11 difference; however, if the contractor fails to furnish the
12 difference within 10 days from delivery of the affidavit or
13 notice from the owner to the contractor to furnish the
14 affidavit, the owner shall determine the amount due each
15 lienor and shall disburse to them the amounts due from him or
16 her on a direct contract in accordance with the procedure
17 established by subsection (4).
18 4. The owner shall have the right to rely on the
19 contractor's affidavit given under this paragraph in making
20 the final payment, unless there are lienors giving notice who
21 are not listed in the affidavit. If there are lienors giving
22 notice who are not so listed, the owner may pay such lienors
23 and any persons listed in the affidavit that are entitled to
24 be paid by the owner under subparagraph (d)2. and shall
25 thereupon be discharged of any further responsibility under
26 the direct contract, except for any balance that may be due to
27 the contractor.
28 5. The owner shall retain the final payment due under
29 the direct contract that shall not be disbursed until the
30 contractor's affidavit under subparagraph (d)1. has been
31 furnished to the owner.
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1 6. When final payment has become due to the contractor
2 and the owner fails to withhold as required by subparagraph
3 (d)5., the property improved shall be subject to the full
4 amount of all valid liens of which the owner has notice at the
5 time the contractor furnishes his or her affidavit.
6 (5) When a contractor furnishes a payment bond
7 pursuant to s. 713.23 or s. 713.245 and follows the proper
8 payment procedure set forth in this section, the contractor
9 and surety are entitled to the same protections as are
10 afforded to an owner under this section.
11 Section 3. Paragraph (c) of subsection (1) of section
12 713.13, Florida Statutes, is amended to read:
13 713.13 Notice of commencement.--
14 (1)
15 (c) If the contract between the owner and a contractor
16 named in the notice of commencement expresses a period of time
17 for completion for the construction of the improvement greater
18 than 1 year, the notice of commencement must state that it is
19 effective for a period of 1 year plus any additional period of
20 time. Any payments made by the owner after the expiration of
21 the notice of commencement are considered improper payments
22 for purposes of s. 713.06. Any payments made by the owner
23 prior to the recordation of the notice of commencement are
24 considered improper payments for purposes of s. 713.06.
25 Section 4. Subsection (2) of section 713.16, Florida
26 Statutes, is amended to read:
27 713.16 Demand for copy of contract and statements of
28 account; form.--
29 (2) The owner or contractor may serve in writing a
30 demand of any lienor for a written statement under oath of his
31 or her account showing the nature of the labor or services
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1 performed and to be performed, if any, the materials
2 furnished, the materials to be furnished, if known, the amount
3 paid on account to date, the amount due, and the amount to
4 become due, if known, as of the date of the statement by the
5 lienor. Any such demand to a lienor must be served on the
6 lienor at the address and to the attention of any person who
7 is designated to receive the demand in the notice to owner or
8 notice to contractor served by such lienor. The failure or
9 refusal to furnish the statement does not deprive the lienor
10 of his or her lien or rights under a payment bond provided
11 under this part if the demand is not served at the address of
12 the lienor or directed to the attention of the person
13 designated to receive the demand in the notice to owner or
14 notice to contractor. The failure or refusal to furnish the
15 statement within 30 days after the demand, or the furnishing
16 of a false or fraudulent statement, deprives the person so
17 failing or refusing to furnish such statement of his or her
18 lien or rights under a payment bond provided under this part.
19 If the owner or contractor serves more than one demand for
20 statement of account on a lienor and none of the information
21 regarding the account has changed since the lienor's last
22 response to a demand, the failure or refusal to furnish such
23 statement does not deprive the lienor of his or her lien or
24 rights under a payment bond provided under this part. The
25 negligent inclusion or omission of any information deprives
26 the person of his or her lien or rights under a payment bond
27 provided under this part to the extent the owner or contractor
28 can demonstrate prejudice from such act or omission by the
29 lienor. The failure to furnish a response to a demand for
30 statement of account does not affect the validity of any claim
31 of lien or claim under a payment bond provided under this part
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1 being enforced in a lawsuit through a foreclosure case filed
2 prior to the date the demand for statement of account is
3 received by the lienor.
4 Section 5. Subsections (4) and (5) of section 713.20,
5 Florida Statutes, are amended to read:
6 713.20 Waiver or release of liens.--
7 (4) When a lienor is required to execute a waiver or
8 release of lien in exchange for, or to induce payment of, a
9 progress payment, the waiver or release may be in
10 substantially the following form:
11
12 WAIVER AND RELEASE OF LIEN
13 UPON PROGRESS PAYMENT
14
15 The undersigned lienor, in consideration of the sum of
16 $...., hereby waives and releases its lien and right to claim
17 a lien for labor, services, or materials furnished through
18 ...(insert date)... to ...(insert the name of your
19 customer)... on the job of ...(insert the name of the
20 owner)... to the following property:
21
22 ...(description of property)...
23
24 This waiver and release extends to any claim or right to claim
25 against any payment bond furnished pursuant to s. 713.23 or s.
26 713.245, Florida Statutes. This waiver and release does not
27 cover any retention or labor, services, or materials furnished
28 after the date specified.
29 Released Parties:
30 Owner:........ Contractor:....................
31 Surety:.....(if applicable)....
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1 DATED on ...., 19..... ...(Lienor)...
2 By: ........
3
4 (5) When a lienor is required to execute a waiver or
5 release of lien in exchange for, or to induce payment of, the
6 final payment, the waiver and release may be in substantially
7 the following form:
8
9 WAIVER AND RELEASE OF LIEN
10 UPON FINAL PAYMENT
11
12 The undersigned lienor, in consideration of the final
13 payment in the amount of $........, hereby waives and releases
14 its lien and right to claim a lien for labor, services, or
15 materials furnished to ...(insert the name of your
16 customer)... on the job of ...(insert the name of the
17 owner)... to the following described property:
18
19 ...(description of property)...
20
21 This waiver and release extends to any claim or right to claim
22 against any payment bond furnished pursuant to s. 713.23 or s.
23 713.245, Florida Statutes.
24 Released Parties:
25 Owner:........ Contractor:....................
26 Surety:.....(if applicable)....
27
28 DATED on ...., 19..... ...(Lienor)...
29 By: ........
30
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1 Section 6. Subsection (1) of section 713.23, Florida
2 Statutes, is amended to read:
3 713.23 Payment bond.--
4 (1)(a) The payment bond required to exempt an owner
5 under this part shall be furnished by the contractor in at
6 least the amount of the original contract price before
7 commencing the construction of the improvement under the
8 direct contract, and a copy of the bond shall be attached to
9 the notice of commencement when the notice of commencement is
10 recorded. The bond shall be executed as surety by a surety
11 insurer authorized to do business in this state and shall be
12 conditioned that the contractor shall promptly make payments
13 for labor, services, and material to all lienors under the
14 contractor's direct contract. Any form of bond given by a
15 contractor conditioned to pay for labor, services, and
16 material used to improve real property shall be deemed to
17 include the condition of this subsection.
18 (b) The owner, contractor, or surety shall furnish a
19 true copy of the bond at the cost of reproduction to any
20 lienor demanding it. Any person who fails or refuses to
21 furnish the copy without justifiable cause shall be liable to
22 the lienor demanding the copy for any damages caused by the
23 refusal or failure.
24 (c) Either before beginning or within 30 45 days after
25 beginning to furnish labor, materials, or supplies, a lienor
26 who is not in privity with the contractor, except a laborer,
27 shall serve the contractor with notice in writing that the
28 lienor will look to the contractor's bond for protection on
29 the work. If a notice of commencement is not recorded, or a
30 reference to the bond is not given in the notice of
31 commencement, and in either case if the lienor not in privity
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1 with the contractor is not otherwise notified in writing of
2 the existence of the bond, the lienor not in privity with the
3 contractor shall have 30 45 days from the date the lienor is
4 notified of the existence of the bond within which to serve
5 the notice. The notice may be in substantially the following
6 form:
7
8 NOTICE TO CONTRACTOR
9
10 To ...(name of contractor)...
11
12 The undersigned notifies you that he or she has furnished or
13 is furnishing ...(services or materials)... for the
14 improvement of the real property identified as ...(property
15 description)... owned by ...(owner's name and address)...
16 under an order given by .... and that the undersigned will
17 look to the contractor's bond for protection on the work.
18
19 ...(Lienor's signature and address)...
20
21 (d) In addition, a lienor is required, as a condition
22 precedent to recovery under the bond, to serve a written
23 notice of nonpayment to the contractor and the surety not
24 later than 90 days after the final furnishing of labor,
25 services, or materials by the lienor. A written notice
26 satisfies this condition precedent with respect to the payment
27 described in the notice of nonpayment and with respect to any
28 other payments which become due to the lienor after the date
29 of the notice of nonpayment. The failure of a lienor to
30 receive retainage sums not in excess of 10 percent of the
31 value of labor, services, or materials furnished by the lienor
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1 is not considered a nonpayment requiring the service of the
2 notice provided under this paragraph. The notice under this
3 paragraph may be in substantially the following form:
4
5 NOTICE OF NONPAYMENT
6
7 To ...(name of contractor and address)...
8
9 ...(name of surety and address)...
10
11 The undersigned notifies you that he or she has furnished
12 ...(describe labor, services, or materials)... for the
13 improvement of the real property identified as ...(property
14 description).... The amount now due and unpaid is $.....
15
16 ...(signature and address of lienor)...
17
18 (e) No action for the labor or materials or supplies
19 may be instituted or prosecuted against the contractor or
20 surety unless both notices have been given. No action shall
21 be instituted or prosecuted against the contractor or against
22 the surety on the bond under this section after 1 year from
23 the performance of the labor or completion of delivery of the
24 materials and supplies. A contractor or the contractor's agent
25 or attorney may elect to shorten the prescribed time within
26 which an action to enforce any claim against a payment bond
27 provided pursuant to s. 713.23 may be commenced by serving on
28 the affected lienor a notice in substantially the following
29 form:
30 NOTICE OF CONTEST OF CLAIM AGAINST PAYMENT BOND
31
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1 TO: (Name and address of lienor)
2 You are notified that the undersigned contests your
3 notice of nonpayment, dated , , and served on
4 the undersigned on , , and that the time within
5 which you may file suit to enforce your claim is limited to 60
6 days from the date of service of this notice.
7
8 DATED on , ,
9
10 Signed:....(Contractor or Attorney)....
11
12 The claim of any lienor upon whom such notice is served and
13 who fails to institute a suit to enforce his or her claim
14 against the payment bond within 60 days after service of such
15 notice shall be extinguished automatically. The clerk shall
16 mail a copy of the notice of contest to the claimant at the
17 address shown in the notice of nonpayment and shall certify to
18 such service on the face of the notice of contest and record
19 the notice. Service shall be deemed complete upon mailing.
20 (f) A claim against a payment bond provided pursuant
21 to this section may be discharged by an order of the circuit
22 court of the county where the property is located in the
23 following manner. Upon filing a complaint therefor by any
24 interested party, the clerk shall issue a summons to the
25 lienor to show cause within 20 days why his or her claim
26 against the payment bond should not be enforced by action or
27 extinguished. Upon failure of the lienor to show cause why his
28 or her claim against the payment bond should not be enforced
29 or upon the lienor's failure to commence such action before
30 the return date of the summons, the court shall issue an order
31 extinguishing the claim.
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1 (g)(f) Any lienor has a direct right of action on the
2 bond against the surety. A bond must not contain any
3 provisions restricting the classes of persons protected
4 thereby or the venue of any proceeding. The surety is not
5 entitled to the defense of pro tanto discharge as against any
6 lienor because of changes or modifications in the contract to
7 which the surety is not a party; but the liability of the
8 surety may not be increased beyond the penal sum of the bond.
9 A lienor may not waive in advance his or her right to bring an
10 action under the bond against the surety.
11 Section 7. Section 713.235, Florida Statutes, is
12 created to read:
13 713.235 Waivers of right to claim against payment
14 bond; forms.--
15 (1) When a person is required to execute a waiver of
16 his or her right to make a claim against a payment bond
17 provided pursuant to s. 713.23 or s. 713.245, in exchange for,
18 or to induce payment of, a progress payment, the waiver may be
19 in substantially the following form:
20 WAIVER OF RIGHT TO CLAIM
21 AGAINST THE PAYMENT BOND
22 PROGRESS PAYMENT
23 The undersigned, in consideration of the sum of
24 $........, hereby waives its right to claim against the
25 payment bond provided pursuant to s. 713.23 or s. 713.245,
26 Florida Statutes, for labor, services, or materials furnished
27 through ....(insert date)....to....(insert the name of your
28 customer)....on the job of....(insert the name of the
29 owner)...., for improvements to the following described
30 project:
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3 This waiver does not cover any unpaid retention or labor,
4 services, or materials furnished after the date specified.
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6 Released Parties:
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8 Contractor:............ Surety:............
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10 DATED on............
11 ........(Lienor)........
12 by:....................
13 (2) When a person is required to execute a waiver of
14 his or her right to make a claim against a payment bond
15 provided pursuant to s. 713.23 or s. 713.245, in exchange for,
16 or to induce payment of, the final payment, the waiver may be
17 in substantially the following form:
18 WAIVER OF RIGHT TO CLAIM
19 AGAINST THE PAYMENT BOND (FINAL PAYMENT)
20 The undersigned, in consideration of the final payment
21 in the amount of $........, hereby waives its right to claim
22 against the payment bond provided pursuant to s. 713.23 or s.
23 713.245, Florida Statutes, for all sums due for labor,
24 serivces, or materials furnished to ....(insert the name of
25 your customer)....on the job of....(insert the name of the
26 owner)...., for improvements to the following described
27 project:
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29 (description of project)
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31 Released Parties:
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2 Contractor:............ Surety:............
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4 DATED on............
5 ........(Lienor)........
6 by:....................
7 (3) A person may not require a claimant to furnish a
8 waiver that is different from the forms in subsections (1) and
9 (2).
10 (4) A claimant who executes a waiver in exchange for a
11 check may condition the waiver on payment of the check.
12 (5) A waiver that is not substantially similar to the
13 forms in this section is enforceable in accordance with its
14 terms.
15 Section 8. This act shall take effect October 1 of the
16 year in which enacted.
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2 HOUSE SUMMARY
3
Revises provisions of law relating to liens to:
4 1. Reduce the time period for claimants under a
bond of a contractor constructing public buildings to
5 file required notice of intent to look to the bond for
protection.
6 2. Provide an expedited procedure for the
enforcement of a claim against a payment bond.
7 3. Provide described protection to a contractor and
surety when a contractor properly furnishes a payment
8 bond pursuant to s. 255.05, F.S.
4. Provide for written statement to the contractor
9 with respect to the nature of labor and services
personnel.
10 5. Revise provisions with respect to liens of
persons not in privity to reduce timeframes for the
11 service of required notice and to provide protection to
the contractor and surety when a contractor properly
12 furnishes a payment bond.
6. Provide that any payment made prior to the
13 recordation of a notice of commencement is considered an
improper payment.
14 7. Authorize the contractor to serve a demand for
copy of contrast and statements of account under
15 described circumstances.
8. Revise the waiver of release of liens form.
16 9. Reduce a time period for a lienor not in privity
with the contractor to file notice for protection under
17 the bond.
10. Provide for waivers of right to claim against a
18 payment bond.
19 See bill for details.
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