House Bill 0681

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    Florida House of Representatives - 1999                 HB 681

        By Representative Merchant






  1                      A bill to be entitled

  2         An act relating to construction liens and

  3         bonds; amending s. 255.05, F.S., relating to

  4         payment bonds of contractors constructing

  5         public buildings; providing that the time

  6         periods required for providing certain notices

  7         or bringing certain actions are not determined

  8         by the issuance of a certificate of occupancy

  9         or a certificate of substantial completion;

10         amending s. 713.06, F.S.; clarifying certain

11         notice requirements with respect to perfecting

12         a lien for labor, services, or materials

13         furnished under contract; amending s. 713.08,

14         F.S.; providing that the time period required

15         for recording a claim of lien is not determined

16         by the issuance of a certificate of occupancy

17         or a certificate of substantial completion;

18         amending s. 713.135, F.S.; clarifying

19         circumstances under which an entity issuing a

20         building permit is subject to disciplinary

21         procedures; amending s. 713.18, F.S., relating

22         to service of notices and other instruments;

23         providing for overnight delivery or second-day

24         delivery under certain circumstances; amending

25         s. 713.23, F.S.; providing that the time

26         periods required for serving a notice of

27         nonpayment or bringing certain actions are not

28         determined by the issuance of a certificate of

29         occupancy or a certificate of substantial

30         completion; providing an effective date.

31

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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Paragraph (a) of subsection (2) of section

  4  255.05, Florida Statutes, 1998 Supplement, is amended to read:

  5         255.05  Bond of contractor constructing public

  6  buildings; form; action by materialmen.--

  7         (2)(a)1.  If a claimant is no longer furnishing labor,

  8  services, or materials on a project, a contractor or the

  9  contractor's agent or attorney may elect to shorten the

10  prescribed time in this paragraph within which an action to

11  enforce any claim against a payment bond provided pursuant to

12  this section may be commenced by recording in the clerk's

13  office a notice in substantially the following form:

14

15                    NOTICE OF CONTEST OF CLAIM

16                       AGAINST PAYMENT BOND

17

18

19  To: ...(Name and address of claimant)...

20         You are notified that the undersigned contests your

21  notice of nonpayment, dated ............, ........, and served

22  on the undersigned on ............, ........, and that the

23  time within which you may file suit to enforce your claim is

24  limited to 60 days after the date of service of this notice.

25

26         DATED on ............, .........

27

28

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 or most recent

  7  amendment thereto and shall certify to such service on the

  8  face of such notice and record the notice. Service is complete

  9  upon mailing.

10         2.  A claimant, except a laborer, who is not in privity

11  with the contractor shall, before commencing or not later than

12  45 days after commencing to furnish labor, materials, or

13  supplies for the prosecution of the work, furnish the

14  contractor with a notice that he or she intends to look to the

15  bond for protection. A claimant who is not in privity with the

16  contractor and who has not received payment for his or her

17  labor, materials, or supplies shall deliver to the contractor

18  and to the surety written notice of the performance of the

19  labor or delivery of the materials or supplies and of the

20  nonpayment. The notice of nonpayment may be served at any time

21  during the progress of the work or thereafter but not before

22  45 days after the first furnishing of labor, services, or

23  materials, and not later than 90 days after the final

24  furnishing of the labor, services, or materials by the

25  claimant or, with respect to rental equipment, not later than

26  90 days after the date that the rental equipment was last on

27  the job site available for use. No action for the labor,

28  materials, or supplies may be instituted against the

29  contractor or the surety unless both notices have been given.

30  An action, except for an action exclusively for recovery of

31  retainage, must be instituted against the contractor or the

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  1  surety on the payment bond or the payment provisions of a

  2  combined payment and performance bond within 1 year after the

  3  performance of the labor or completion of delivery of the

  4  materials or supplies. An action exclusively for recovery of

  5  retainage must be instituted against the contractor or the

  6  surety within 1 year after the performance of the labor or

  7  completion of delivery of the materials or supplies, or within

  8  90 days after the contractor's receipt of final payment (or

  9  the payment estimate containing the owner's final

10  reconciliation of quantities if no further payment is earned

11  and due as a result of deductive adjustments) by the

12  contractor or surety, whichever comes last. A claimant may not

13  waive in advance his or her right to bring an action under the

14  bond against the surety.  In any action brought to enforce a

15  claim against a payment bond under this section, the

16  prevailing party is entitled to recover a reasonable fee for

17  the services of his or her attorney for trial and appeal or

18  for arbitration, in an amount to be determined by the court,

19  which fee must be taxed as part of the prevailing party's

20  costs, as allowed in equitable actions. The time periods for

21  service of a notice of nonpayment or for bringing an action

22  against a contractor or a surety may not be determined by the

23  issuance of a certificate of occupancy or the issuance of a

24  certificate of substantial completion.

25         Section 2.  Subsection (2) of section 713.06, Florida

26  Statutes, 1998 Supplement, is amended 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 45 days after commencing, to

15  furnish his or her labor, services, or materials, but, in any

16  event, before the date of the owner's disbursement of the

17  final payment after the contractor has furnished the affidavit

18  under subparagraph (3)(d)1. The notice must be served

19  regardless of the method of payments by the owner, whether

20  proper or improper, and does not give to the lienor serving

21  the notice any priority over other lienors in the same

22  category; and the failure to serve the notice, or to timely

23  serve it, is a complete defense to enforcement of a lien by

24  any person. The serving of the notice does not dispense with

25  recording the claim of lien. The notice is not a lien, cloud,

26  or encumbrance on the real property nor actual or constructive

27  notice of any of them.

28         (b)  If the owner, in his or her notice of

29  commencement, has designated a person in addition to himself

30  or herself to receive a copy of such lienor's notice, as

31  provided in s. 713.13(1)(b), the lienor shall serve a copy of

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  1  his or her notice on the person so designated. The failure by

  2  the lienor to serve such copy, however, does not invalidate an

  3  otherwise valid lien.

  4         (c)  The notice must be in substantially the following

  5  form and must contain the required information. The notice may

  6  differ in format from the format set forth in this section,

  7  and may contain additional information if the title of the

  8  form, "Notice to Owner," is prominently displayed.:

  9

10  WARNING TO OWNER: UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE

11  THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY

12  AND YOUR PAYING TWICE.

13

14  TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN

15  RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR.

16

17                         NOTICE TO OWNER

18

19  To ...(Owner's name and address)...

20

21  The undersigned hereby informs you that he or she has

22  furnished or is furnishing services or materials as follows:

23  ...(General description of services or materials)... for the

24  improvement of the real property identified as ...(property

25  description)... under an order given by.............

26

27  Florida law prescribes the serving of this notice and

28  restricts your right to make payments under your contract in

29  accordance with Section 713.06, Florida Statutes.

30

31                    IMPORTANT INFORMATION FOR

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  1                         YOUR PROTECTION

  2

  3         Under Florida's laws, those who work on your property

  4  or provide materials and are not paid have a right to enforce

  5  their claim for payment against your property. This claim is

  6  known as a construction lien.

  7         If your contractor fails to pay subcontractors or

  8  material suppliers or neglects to make other legally required

  9  payments, the people who are owed money may look to your

10  property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN

11  FULL.

12

13  PROTECT YOURSELF:

14         --RECOGNIZE that this Notice to Owner may result in a

15  lien against your property unless all those supplying a Notice

16  to Owner have been paid.

17         --LEARN more about the Construction Lien Law, Chapter

18  713, Part I, Florida Statutes, and the meaning of this notice

19  by contacting an attorney or the Florida Department of

20  Business and Professional Regulation.

21                                      ...(Lienor's Signature)...

22                                           ...(Lienor's Name)...

23                                        ...(Lienor's Address)...

24

25  Copies to: ...(Those persons listed in Section 713.06(2)(a)

26  and (b), Florida Statutes)...

27

28         (d)  A notice to an owner served on a lender must be in

29  writing, must be served in accordance with s. 713.18, and

30  shall be addressed to the persons designated, if any, and to

31  the place and address designated in the notice of

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  1  commencement.  Any lender who, after receiving a notice

  2  provided under this subsection, pays a contractor on behalf of

  3  the owner for an improvement shall make proper payments as

  4  provided in paragraph (3)(c) as to each such notice received

  5  by the lender. The failure of a lender to comply with this

  6  paragraph renders the lender liable to the owner for all

  7  damages sustained by the owner as a result of that failure.

  8  This paragraph does not give any person other than an owner a

  9  claim or right of action against a lender for the failure of

10  the lender to comply with this paragraph.  Further, this

11  paragraph does not prohibit a lender from disbursing

12  construction funds at any time directly to the owner, in which

13  event the lender has no obligation to make proper payments

14  under this paragraph.

15         (e)  A lienor, in the absence of a recorded notice of

16  commencement, may rely on the information contained in the

17  building permit application to serve the notice prescribed in

18  paragraphs (a), (b), and (c).

19         (f)  If a lienor has substantially complied with the

20  provisions of paragraphs (a), (b), and (c), errors or

21  omissions do not prevent the enforcement of a claim against a

22  person who has not been adversely affected by such omission or

23  error.  However, a lienor must strictly comply with the time

24  requirements of paragraph (a).

25         Section 3.  Subsection (5) of section 713.08, Florida

26  Statutes, 1998 Supplement, is amended to read:

27         713.08  Claim of lien.--

28         (5)  The claim of lien may be recorded at any time

29  during the progress of the work or thereafter but not later

30  than 90 days after the final furnishing of the labor or

31  services or materials by the lienor; or, with respect to

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  1  rental equipment, within 90 days after the date that the

  2  rental equipment was last on the job site available for use;

  3  provided if the original contractor defaults or the contract

  4  is terminated under s. 713.07(4), no claim for a lien

  5  attaching prior to such default shall be recorded after 90

  6  days from the date of such default or 90 days after the final

  7  performance of labor or services or furnishing of materials,

  8  whichever occurs first. The time period for recording a claim

  9  of lien may not be determined by the issuance of a certificate

10  of occupancy or the issuance of a certificate of substantial

11  completion. The claim of lien shall be recorded in the clerk's

12  office.  If such real property is situated in two or more

13  counties, the claim of lien shall be recorded in the clerk's

14  office in each of such counties.  The recording of the claim

15  of lien shall be constructive notice to all persons of the

16  contents and effect of such claim.  The validity of the lien

17  and the right to record a claim therefor shall not be affected

18  by the insolvency, bankruptcy, or death of the owner before

19  the claim of lien is recorded.

20         Section 4.  Subsections (1) and (4) of section 713.135,

21  Florida Statutes, 1998 Supplement, are amended to read:

22         713.135  Notice of commencement and applicability of

23  lien.--

24         (1)  When any person applies for a building permit, the

25  authority issuing such permit shall:

26         (a)  Print on the face of each permit card in no less

27  than 18-point, capitalized, boldfaced type:  "WARNING TO

28  OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY

29  RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.

30  IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR

31  AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT."

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  1         (b)  Provide the applicant and the owner of the real

  2  property upon which improvements are to be constructed with a

  3  printed statement stating that the right, title, and interest

  4  of the person who has contracted for the improvement may be

  5  subject to attachment under the Construction Lien Law. The

  6  Department of Business and Professional Regulation shall

  7  furnish, for distribution, the statement described in this

  8  paragraph, and the statement must be a summary of the

  9  Construction Lien Law and must include an explanation of the

10  provisions of the Construction Lien Law relating to the

11  recording, and the posting of copies, of notices of

12  commencement and a statement encouraging the owner to record a

13  notice of commencement and post a copy of the notice of

14  commencement thereof in accordance with s. 713.13. However,

15  the failure by the authorities to provide the summary does not

16  subject the issuing authority to liability.

17         (c)  Inform each applicant who is not the person whose

18  right, title, and interest is subject to attachment that, as a

19  condition to the issuance of a building permit, the applicant

20  must promise in good faith that the statement will be

21  delivered to the person whose property is subject to

22  attachment.

23         (d)  Furnish to the applicant two or more copies of a

24  form of notice of commencement conforming with s. 713.13.  If

25  the direct contract is greater than $2,500, the applicant

26  shall file with the issuing authority prior to the first

27  inspection either a certified copy of the recorded notice of

28  commencement or a notarized statement that the notice of

29  commencement has been filed for recording, along with a copy

30  thereof.  In the absence of the filing of a certified copy of

31  the recorded notice of commencement, the issuing authority

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  1  shall not perform or approve subsequent inspections until the

  2  applicant files by mail, facsimile, hand delivery, or any

  3  other means such certified copy with the issuing authority.

  4  This subsection does not require Nothing herein shall be

  5  interpreted as requiring or encouraging the recording of a

  6  notice of commencement prior to the issuance of a building

  7  permit. If a local government requires a separate permit or

  8  inspection for installation of temporary electrical service or

  9  other temporary utility service, land clearing, or other

10  preliminary site work, such permits may be issued and such

11  inspections may be conducted without providing the issuing

12  authority with a certified copy of a recorded notice of

13  commencement or a notarized statement regarding a recorded

14  notice of commencement.

15         (4)  An issuing authority under subsection (1) is not

16  liable in any civil action for the failure to verify that a

17  certified copy of the recorded notice of commencement has been

18  filed in accordance with this section. If an issuing authority

19  fails to obtain a certified copy of the recorded notice of

20  commencement in accordance with paragraph (1)(d), the building

21  code administrator or building official is in violation of s.

22  468.621(1)(g) and is subject to discipline in accordance with

23  s. 468.621(2). Any lienor may file a complaint against the

24  building code administrator or building official for a

25  violation of paragraph (1)(d).

26         Section 5.  Section 713.18, Florida Statutes, 1998

27  Supplement, is amended to read:

28         713.18  Manner of serving notices and other

29  instruments.--

30         (1)  Service of notices, claims of lien, affidavits,

31  assignments, and other instruments permitted or required under

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  1  this part, or copies thereof when so permitted or required,

  2  unless otherwise specifically provided in this part, must be

  3  made by one of the following methods:

  4         (a)  By actual delivery to the person to be served; or,

  5  if a partnership, to one of the partners; or, if a

  6  corporation, to an officer, director, managing agent, or

  7  business agent thereof.

  8         (b)  By mailing the same, postage prepaid, by

  9  registered or certified mail to the person to be served at her

10  or his last known address and evidence of delivery. If a

11  notice to owner, a preliminary notice under s. 713.23, or a

12  preliminary notice under s. 255.05 is mailed pursuant to this

13  paragraph within 40 days after the date the lienor first

14  furnishes labor, services, or materials, service of that

15  notice is effective as of the date of mailing if the person

16  who served the notice maintains a registered or certified mail

17  log that shows the date the notice was served, the registered

18  or certified mail number issued by the United States Postal

19  Service, the name and address of the person served, and the

20  date stamp of the United States Postal Service confirming the

21  date of mailing. If an instrument served pursuant to this

22  paragraph to the last address shown in the notice of

23  commencement or any amendment thereto or, in the absence of a

24  notice of commencement, to the last address shown in the

25  building permit application is not received, but is returned

26  by the United States Postal Service as being "refused,"

27  "moved, not forwardable," or "unclaimed," or is otherwise not

28  delivered or deliverable through no fault of the person

29  serving the item, then service is effective as of the date of

30  mailing.

31

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  1         (c)  By overnight delivery or second-day delivery using

  2  a delivery service that maintains, in the ordinary course of

  3  business, records that specify when and where delivery was

  4  made.

  5         (d)(c)  If none neither of the foregoing methods can be

  6  accomplished, by posting on the premises.

  7         (2)  If the real property is owned by more than one

  8  person, a lienor may serve any notices or other papers under

  9  this part on any one of such owners, and such notice is deemed

10  notice to all owners.

11         (3)  Service of notices or copies thereof, permitted or

12  required under this part, may be made by facsimile

13  transmission when the person being served has listed that

14  person's facsimile phone number in the Notice of Commencement.

15  The lienor's facsimile confirmation sheet with the correct

16  facsimile phone number shall be proof of the date and time the

17  notice was served.

18         Section 6.  Paragraphs (d) and (e) of subsection (1) of

19  section 713.23, Florida Statutes, 1998 Supplement, are amended

20  to read:

21         713.23  Payment bond.--

22         (1)

23         (d)  In addition, a lienor is required, as a condition

24  precedent to recovery under the bond, to serve a written

25  notice of nonpayment to the contractor and the surety not

26  later than 90 days after the final furnishing of labor,

27  services, or materials by the lienor.  A written notice

28  satisfies this condition precedent with respect to the payment

29  described in the notice of nonpayment and with respect to any

30  other payments which become due to the lienor after the date

31  of the notice of nonpayment. The time period for serving a

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  1  written notice of nonpayment may not be determined by the

  2  issuance of a certificate of occupancy or the issuance of a

  3  certificate of substantial completion. The failure of a lienor

  4  to receive retainage sums not in excess of 10 percent of the

  5  value of labor, services, or materials furnished by the lienor

  6  is not considered a nonpayment requiring the service of the

  7  notice provided under this paragraph. The notice under this

  8  paragraph may be in substantially the following form:

  9

10                       NOTICE OF NONPAYMENT

11

12  To ...(name of contractor and address)...

13

14  ...(name of surety and address)...

15

16  The undersigned notifies you that he or she has furnished

17  ...(describe labor, services, or materials)... for the

18  improvement of the real property identified as ...(property

19  description)....  The amount now due and unpaid is $.....

20

21                         ...(signature and address of lienor)...

22

23         (e)  No action for the labor or materials or supplies

24  may be instituted or prosecuted against the contractor or

25  surety unless both notices have been given.  No action shall

26  be instituted or prosecuted against the contractor or against

27  the surety on the bond under this section after 1 year from

28  the performance of the labor or completion of delivery of the

29  materials and supplies. The time period for bringing an action

30  against the contractor or surety on the bond may not be

31  determined by the issuance of a certificate of occupancy or

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  1  the issuance of a certificate of substantial completion. A

  2  contractor or the contractor's agent or attorney may elect to

  3  shorten the prescribed time within which an action to enforce

  4  any claim against a payment bond provided pursuant to this

  5  section or s. 713.245 may be commenced by recording in the

  6  clerk's office a notice in substantially the following form:

  7

  8                    NOTICE OF CONTEST OF CLAIM

  9                       AGAINST PAYMENT BOND

10

11  To:  ...(Name and address of lienor)...

12         You are notified that the undersigned contests your

13  notice of nonpayment, dated ...., ...., and served on the

14  undersigned on ...., ...., and that the time within which you

15  may file suit to enforce your claim is limited to 60 days from

16  the date of service of this notice.

17

18  DATED on ...., .....

19

20  Signed: ...(Contractor or Attorney)...

21

22

23  The claim of any lienor upon whom such notice is served and

24  who fails to institute a suit to enforce his or her claim

25  against the payment bond within 60 days after service of such

26  notice shall be extinguished automatically. The clerk shall

27  mail a copy of the notice of contest to the lienor at the

28  address shown in the notice of nonpayment or most recent

29  amendment thereto and shall certify to such service on the

30  face of such notice and record the notice. Service is complete

31  upon mailing.

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  1         Section 7.  This act shall take effect October 1, 1999.

  2

  3            *****************************************

  4                       LEGISLATIVE SUMMARY

  5    Revises various provisions governing construction liens
      and bonds. Clarifies that the time periods required for
  6    providing notice, recording a claim, or bringing an
      action are not determined by the issuance of a
  7    certificate of occupancy or a certificate of substantial
      completion. Clarifies notice requirements for perfecting
  8    a lien for labor, services, or materials. Provides that
      the authority issuing building permits is subject to
  9    disciplinary procedures for failing to obtain a certified
      copy of the notice of commencement. Authorizes the use of
10    overnight delivery or second-day delivery for serving
      notices and other instruments. (See bill for details.)
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