Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 2768
Barcode 293648
CHAMBER ACTION
Senate House
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1 Comm: RCS .
04/16/2007 04:42 PM .
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11 The Committee on Regulated Industries (Aronberg) recommended
12 the following amendment:
13
14 Senate Amendment (with title amendment)
15 On page 5, line 18, through
16 page 12, line 27, delete those lines
17
18 and insert:
19 2. A claimant, except a laborer, who is not in privity
20 with the contractor shall, before commencing or not later than
21 45 days after commencing to furnish labor, services, or
22 materials, or supplies for the prosecution of the work,
23 furnish the contractor with a written notice that he or she
24 intends to look to the bond for protection. A claimant who is
25 not in privity with the contractor and who has not received
26 payment for his or her labor, services, or materials, or
27 supplies shall deliver to the contractor and to the surety
28 written notice of the performance of the labor or delivery of
29 the materials or supplies and of the nonpayment. The notice of
30 nonpayment may be served at any time during the progress of
31 the work or thereafter but not before 45 days after the first
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1 furnishing of labor, services, or materials, and not later
2 than 90 days after the final furnishing of the labor,
3 services, or materials by the claimant or, with respect to
4 rental equipment, not later than 90 days after the date that
5 the rental equipment was last on the job site available for
6 use. Any notice of nonpayment served by a claimant who is not
7 in privity with the contractor which includes sums for
8 retainage must specify the portion of the amount claimed for
9 retainage. No action for the labor, materials, or supplies may
10 be instituted against the contractor or the surety unless both
11 notices have been given. Notices required or permitted under
12 this section may be served in accordance with s. 713.18. A
13 claimant may not waive in advance his or her right to bring an
14 action under the bond against the surety. In any action
15 brought to enforce a claim against a payment bond under this
16 section, the prevailing party is entitled to recover a
17 reasonable fee for the services of his or her attorney for
18 trial and appeal or for arbitration, in an amount to be
19 determined by the court, which fee must be taxed as part of
20 the prevailing party's costs, as allowed in equitable actions.
21 The time periods for service of a notice of nonpayment or for
22 bringing an action against a contractor or a surety shall be
23 measured from the last day of furnishing labor, services, or
24 materials by the claimant and shall not be measured by other
25 standards, such as the issuance of a certificate of occupancy
26 or the issuance of a certificate of substantial completion.
27 Section 2. Present subsections (12)-(28) of section
28 713.01, Florida Statutes, are redesignated as subsections
29 (13)-(29), respectively, a new subsection (12) is added to
30 that section, and present subsection (12) of that section is
31 amended, to read:
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Bill No. SB 2768
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1 713.01 Definitions.--As used in this part, the term:
2 (12) "Final furnishing" means the last date that the
3 lienor furnishes labor, services, or materials. Such date may
4 not be measured by other standards, such as the issuance of a
5 certificate of occupancy or the issuance of a certificate of
6 final completion, and does not include correction of
7 deficiencies in the lienor's previously performed work or
8 materials supplied. With respect to rental equipment, the term
9 means the date that the rental equipment was last on the job
10 site and available for use.
11 (13)(12) "Furnish materials" means supply materials
12 which are incorporated in the improvement including normal
13 wastage in construction operations; or specially fabricated
14 materials for incorporation in the improvement, not including
15 any design work, submittals, or the like preliminary to actual
16 fabrication of the materials; or supply materials used for the
17 construction and not remaining in the improvement, subject to
18 diminution by the salvage value of such materials; and
19 includes supplying rental equipment tools, appliances, or
20 machinery used on the particular improvement to the extent of
21 the reasonable rental value for the period of actual use (not
22 determinable by the contract for rental unless the owner is a
23 party thereto), but does not include supplying handtools. The
24 delivery of materials to the site of the improvement is prima
25 facie evidence of incorporation of such materials in the
26 improvement. The delivery of rental equipment to the site of
27 the improvement is prima facie evidence of the period of the
28 actual use of the rental equipment from the delivery through
29 the time the equipment is last available for use at the site,
30 or 2 business days after the lessor of the rental equipment
31 receives a written notice from the owner or the lessee of the
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1 rental equipment to pick up the equipment, whichever occurs
2 first.
3 Section 3. Section 713.012, Florida Statutes, is
4 created to read:
5 713.012 Written notices, demands, or
6 requests.--Notices, demands, or requests permitted or required
7 under this part, except any required by s. 713.14, must be in
8 writing.
9 Section 4. Section 713.015, Florida Statutes, is
10 amended to read:
11 713.015 Mandatory provisions for direct contracts.--
12 (1) Any direct contract greater than $2,500 between an
13 owner and a contractor, related to improvements to real
14 property consisting of single or multiple family dwellings up
15 to and including four units, must contain the following
16 provision printed in no less than 12-point 14-point,
17 capitalized, boldfaced type on the front page of the contract
18 or on a separate page, signed by the owner, and dated:
19
20 ACCORDING TO FLORIDA'S CONSTRUCTION LIEN LAW (SECTIONS
21 713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR
22 PROPERTY OR PROVIDE MATERIALS OR SERVICES AND ARE NOT PAID IN
23 FULL HAVE A RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST
24 YOUR PROPERTY. THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF
25 YOUR CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY
26 SUBCONTRACTORS, SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS,
27 THOSE THE PEOPLE WHO ARE OWED MONEY MAY LOOK TO YOUR PROPERTY
28 FOR PAYMENT, EVEN IF YOU HAVE ALREADY PAID YOUR CONTRACTOR IN
29 FULL. IF YOU FAIL TO PAY YOUR CONTRACTOR, YOUR CONTRACTOR MAY
30 ALSO HAVE A LIEN ON YOUR PROPERTY. THIS MEANS IF A LIEN IS
31 FILED YOUR PROPERTY COULD BE SOLD AGAINST YOUR WILL TO PAY FOR
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1 LABOR, MATERIALS, OR OTHER SERVICES THAT YOUR CONTRACTOR OR A
2 SUBCONTRACTOR MAY HAVE FAILED TO PAY. TO PROTECT YOURSELF, YOU
3 SHOULD STIPULATE IN THIS CONTRACT THAT BEFORE ANY PAYMENT IS
4 MADE, YOUR CONTRACTOR IS REQUIRED TO PROVIDE YOU WITH A
5 WRITTEN RELEASE OF LIEN FROM ANY PERSON OR COMPANY THAT HAS
6 PROVIDED TO YOU A "NOTICE TO OWNER." FLORIDA'S CONSTRUCTION
7 LIEN LAW IS COMPLEX, AND IT IS RECOMMENDED THAT YOU CONSULT AN
8 ATTORNEY.
9 (2)(a) If the contract is written, the notice must be
10 in the contract document. If the contract is oral or implied,
11 the notice must be provided in a document referencing the
12 contract.
13 (b) The failure to provide such written notice does
14 not bar the enforcement of a lien against a person who has not
15 been adversely affected.
16 (c) Nothing in This section may not shall be construed
17 to adversely affect the lien and bond rights of lienors who
18 are not in privity with the owner. This section does not apply
19 when the owner is a contractor licensed under chapter 489 or
20 is a person who created parcels or offers parcels for sale or
21 lease in the ordinary course of business.
22 Section 5. Subsection (6) of section 713.02, Florida
23 Statutes, is amended to read:
24 713.02 Types of lienors and exemptions.--
25 (6) In any direct contract The owner and contractor
26 may agree that require the contractor shall to furnish a
27 payment bond as provided in s. 713.23, and upon receipt of the
28 bond the owner is shall be exempt from the other provisions of
29 this part as to that direct contract, but this does not exempt
30 the owner from the lien of the contractor who furnishes the
31 bond. If the bond is provided, it shall secure all liens
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1 subsequently accruing under this part as provided in s.
2 713.23.
3 Section 6. Subsection (4) of section 713.07, Florida
4 Statutes, is amended to read:
5 713.07 Priority of liens.--
6 (4) If construction ceases or the direct contract is
7 terminated before completion and the owner desires to
8 recommence construction, he or she may pay all lienors in full
9 or pro rata in accordance with s. 713.06(4) prior to
10 recommencement in which event all liens for the recommenced
11 construction shall take priority from such recommencement; or
12 the owner may record an affidavit in the clerk's office
13 stating his or her intention to recommence construction and
14 that all lienors giving notice have been paid in full except
15 those listed therein as not having been so paid in which event
16 30 days after such recording, the rights of any person
17 acquiring any interest, lien, or encumbrance on said property
18 or of any lienor on the recommenced construction shall be
19 paramount to any lien on the prior construction unless such
20 prior lienor records a claim of lien within said 30-day
21 period. A copy of said affidavit shall be served on each
22 lienor named therein. Before recommencing, the owner shall
23 record and post a notice of commencement for the recommenced
24 construction, as provided in s. 713.13.
25 Section 7. Subsections (2) and (5) of section 713.08,
26 Florida Statutes, are amended to read:
27 713.08 Claim of lien.--
28 (2) The claim of lien may be prepared by the lienor or
29 the lienor's employee or attorney and shall be signed and
30 sworn to or affirmed verified by the lienor or the lienor's
31 her or his agent acquainted with the facts stated therein.
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1 (5) The claim of lien may be recorded at any time
2 during the progress of the work or thereafter but not later
3 than 90 days after the final furnishing of the labor or
4 services or materials by the lienor. However,; or, with
5 respect to rental equipment, within 90 days after the date
6 that the rental equipment was last on the job site available
7 for use; provided if the original contractor defaults or the
8 contract is terminated under s. 713.07(4), a no claim for a
9 lien attaching prior to such termination may not default shall
10 be recorded after 90 days following from the date of such
11 termination default or 90 days after the final performance of
12 labor or services or furnishing of materials, whichever occurs
13 first. The time period for recording a claim of lien shall be
14 measured from the last day of furnishing of labor, services,
15 or materials by the lienor, whichever occurs first and shall
16 not be measured by other standards, such as the issuance of a
17 certificate of occupancy or the issuance of a certificate of
18 substantial completion. The claim of lien shall be recorded in
19 the clerk's office. If such real property is situated in two
20 or more counties, the claim of lien shall be recorded in the
21 clerk's office in each of such counties. The recording of the
22 claim of lien shall be constructive notice to all persons of
23 the contents and effect of such claim. The validity of the
24 lien and the right to record a claim therefor shall not be
25 affected by the insolvency, bankruptcy, or death of the owner
26 before the claim of lien is recorded.
27 Section 8. Paragraphs (a) and (d) of subsection (1) of
28 section 713.13, Florida Statutes, are amended, present
29 subsections (5) and (6) of that section are redesignated as
30 subsections (6) and (7), respectively, and a new subsection
31 (5) is added to that section, to read:
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1 713.13 Notice of commencement.--
2 (1)(a) Except for an improvement that is exempt
3 pursuant to s. 713.02(5), an owner or the owner's authorized
4 agent before actually commencing to improve any real property,
5 or recommencing completion of any improvement after default or
6 abandonment, whether or not a project has a payment bond
7 complying with s. 713.23, shall record a notice of
8 commencement in the clerk's office and forthwith post either a
9 certified copy thereof or a notarized statement that the
10 notice of commencement has been filed for recording along with
11 a copy thereof. The notice of commencement shall contain the
12 following information:
13 1. A description sufficient for identification of the
14 real property to be improved. The description should include
15 the legal description of the property and also should include
16 the street address and tax folio number of the property if
17 available or, if there is no street address available, such
18 additional information as will describe the physical location
19 of the real property to be improved.
20 2. A general description of the improvement.
21 3. The name and address of the owner, the owner's
22 interest in the site of the improvement, and the name and
23 address of the fee simple titleholder, if other than such
24 owner.
25 4. The name and address of the contractor.
26 5. The name and address of the surety on the payment
27 bond under s. 713.23, if any, and the amount of such bond.
28 6. The name and address of any person making a loan
29 for the construction of the improvements.
30 7. The name and address within the state of a person
31 other than himself or herself who may be designated by the
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1 owner as the person upon whom notices or other documents may
2 be served under this part; and service upon the person so
3 designated constitutes service upon the owner.
4 (d) A notice of commencement must be in substantially
5 the following form:
6 Permit No..... Tax Folio No.....
7 NOTICE OF COMMENCEMENT
8 State of....
9 County of....
10
11 The undersigned hereby gives notice that improvement will be
12 made to certain real property, and in accordance with Chapter
13 713, Florida Statutes, the following information is provided
14 in this Notice of Commencement.
15 1. Description of property: ...(legal description of
16 the property, and street address if available)....
17 2. General description of improvement:.....
18 3. Owner information:.....
19 a. Name and address:.....
20 b. Interest in property:.....
21 c. Name and address of fee simple titleholder (if
22 other than Owner):.....
23 4.a. Contractor: ...(name and address)....
24 b. Contractor's phone number:.....
25 5. Surety
26 a. Name and address:.....
27 b. Phone number:.....
28 c. Amount of bond: $.....
29 6.a. Lender: ...(name and address)....
30 b. Lender's phone number:.....
31 7.a. Persons within the State of Florida designated by
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1 Owner upon whom notices or other documents may be served as
2 provided by Section 713.13(1)(a)7., Florida Statutes:
3 ...(name and address)....
4 b. Phone numbers of designated persons:.....
5 8.a. In addition to himself or herself, Owner
6 designates ............ of ............ to receive a copy of
7 the Lienor's Notice as provided in Section 713.13(1)(b),
8 Florida Statutes.
9 b. Phone number of person or entity designated by
10 owner:.....
11 9. Expiration date of notice of commencement (the
12 expiration date is 1 year from the date of recording unless a
13 different date is specified).....
14
15 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
16 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED
17 IMPROPER PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13,
18 FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR
19 IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST
20 BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST
21 INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH
22 YOUR LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING
23 YOUR NOTICE OF COMMENCEMENT.
24
25 ...(Signature of Owner or Owner's Authorized
26 Officer/Director/Partner/Manager)...
27
28 ...(Signatory's Title/Office)...
29
30 Sworn to (or affirmed) and subscribed before me this
31 .... day of ...., ...(year)..., by ...(name of person making
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1 statement)....
2
3 The foregoing instrument was acknowledged before me this _____
4 day of __________, (year) , by (name of person) as (type
5 of authority, . . . e.g. officer, trustee, attorney in fact)
6 for (name of party on behalf of whom instrument was executed).
7
8 ...(Signature of Notary Public - State of Florida)...
9
10 ...(Print, Type, or Stamp Commissioned Name of Notary
11 Public)...
12
13 Personally Known .... OR Produced Identification ....
14
15 Type of Identification Produced............
16
17 Verification pursuant to s. 92.525 Florida Statutes.
18
19 Under penalties of perjury, I declare that I have read the
20 foregoing and that the facts stated in it are true to the best
21 of my knowledge and belief.
22
23 (Signature of Natural Person Signing Above)
24 (5)(a) A notice of commencement that is recorded
25 within the effective period may be amended to extend the
26 effective period, to change erroneous information in the
27 original notice, or to add information that was omitted from
28 the original notice. However, in order to change contractors,
29 a new notice of commencement or notice of recommencement must
30 be executed and recorded.
31 (b) The amended notice must identify the official
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1 records book and page where the original notice of
2 commencement is recorded, and a copy of the amended notice
3 must be served by the owner upon the contractor and each
4 lienor who serves notice before or within 30 days after the
5 date the amended notice is recorded.
6 Section 9. Paragraph (a) of subsection (1) and
7 paragraph (a) of subsection (6) of section 713.135, Florida
8 Statutes, are amended to read:
9 713.135 Notice of commencement and applicability of
10 lien.--
11 (1) When any person applies for a building permit, the
12 authority issuing such permit shall:
13 (a) Print on the face of each permit card in no less
14 than 14-point 18-point, capitalized, boldfaced type: "WARNING
15 TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY
16 RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.
17 A NOTICE OF COMMENCEMENT MUST BE RECORDED AND POSTED ON THE
18 JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN
19 FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
20 RECORDING YOUR NOTICE OF COMMENCEMENT."
21 (6)(a) In addition to any other information required
22 by the authority issuing the permit, the building permit
23 application must be in substantially the following form:
24
25 Tax Folio No.........
26 BUILDING PERMIT APPLICATION
27
28 Owner's Name..................................................
29 Owner's Address...............................................
30 Fee Simple Titleholder's Name (If other than owner)...........
31 Fee Simple Titleholder's Address (If other than owner)........
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1 City..........................................................
2 State............ Zip............
3 Contractor's Name.............................................
4 Contractor's Address..........................................
5 City..........................................................
6 State............ Zip............
7 Job Name......................................................
8 Job Address...................................................
9 City................ County............
10 Legal Description.............................................
11 Bonding Company...............................................
12 Bonding Company Address.......................................
13 City................ State............
14 Architect/Engineer's Name.....................................
15 Architect/Engineer's Address..................................
16 Mortgage Lender's Name........................................
17 Mortgage Lender's Address.....................................
18
19 Application is hereby made to obtain a permit to do the
20 work and installations as indicated. I certify that no work
21 or installation has commenced prior to the issuance of a
22 permit and that all work will be performed to meet the
23 standards of all laws regulating construction in this
24 jurisdiction. I understand that a separate permit must be
25 secured for ELECTRICAL WORK, PLUMBING, SIGNS, WELLS, POOLS,
26 FURNACES, BOILERS, HEATERS, TANKS, and AIR CONDITIONERS, etc.
27
28 OWNER'S AFFIDAVIT: I certify that all the foregoing
29 information is accurate and that all work will be done in
30 compliance with all applicable laws regulating construction
31 and zoning.
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1
2 WARNING TO OWNER: YOUR FAILURE TO RECORD A
3 NOTICE OF COMMENCEMENT MAY RESULT IN YOUR
4 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.
5 A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
6 POSTED ON THE JOB SITE BEFORE THE FIRST
7 INSPECTION.
8
9 IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH
10 YOUR LENDER OR AN ATTORNEY BEFORE COMMENCING
11 WORK OR RECORDING YOUR NOTICE OF COMMENCEMENT.
12
13 ...(Signature of Owner or Agent)...
14
15 ...(including contractor)...
16 STATE OF FLORIDA
17 COUNTY OF ....
18
19
20 Sworn to (or affirmed) and subscribed before me this
21 .... day of ...., ...(year)..., by ...(name of person making
22 statement)....
23
24 ...(Signature of Notary Public - State of Florida)...
25 ...(Print, Type, or Stamp Commissioned Name of Notary
26 Public)...
27
28 Personally Known .... OR Produced Identification ....
29
30 Type of Identification Produced............
31 ...(Signature of Contractor)...
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1
2
3 STATE OF FLORIDA
4 COUNTY OF ....
5
6
7 Sworn to (or affirmed) and subscribed before me this
8 .... day of ...., ...(year)..., by ...(name of person making
9 statement)....
10 ...(Signature of Notary Public - State of Florida)...
11 ...(Print, Type, or Stamp Commissioned Name of Notary
12 Public)...
13
14 Personally Known .... OR Produced Identification ....
15
16 Type of Identification Produced............
17
18 (Certificate of Competency Holder)
19
20 Contractor's State Certification or Registration No.....
21
22 Contractor's Certificate of Competency No.........
23
24 APPLICATION APPROVED BY
25 ................Permit Officer
26 Section 10. Subsections (2), (5), and (6) of section
27 713.16, Florida Statutes, are amended to read:
28 713.16 Demand for copy of contract and statements of
29 account; form.--
30 (2) The owner may serve in writing a demand of any
31 lienor for a written statement under oath of his or her
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1 account showing the nature of the labor or services performed
2 and to be performed, if any, the materials furnished, the
3 materials to be furnished, if known, the amount paid on
4 account to date, the amount due, and the amount to become due,
5 if known, as of the date of the statement by the lienor. Any
6 such demand to a lienor must be served on the lienor at the
7 address and to the attention of any person who is designated
8 to receive the demand in the notice to owner served by such
9 lienor. The failure or refusal to furnish the statement does
10 not deprive the lienor of his or her lien if the demand is not
11 served at the address of the lienor or directed to the
12 attention of the person designated to receive the demand in
13 the notice to owner. The failure or refusal to furnish the
14 statement under oath within 30 days after the demand, or the
15 furnishing of a false or fraudulent statement, deprives the
16 person so failing or refusing to furnish such statement of his
17 or her lien. If the owner serves more than one demand for
18 statement of account on a lienor and none of the information
19 regarding the account has changed since the lienor's last
20 response to a demand, the failure or refusal to furnish such
21 statement does not deprive the lienor of his or her lien. The
22 negligent inclusion or omission of any information deprives
23 the person of his or her lien to the extent the owner can
24 demonstrate prejudice from such act or omission by the lienor.
25 The failure to furnish a response to a demand for statement of
26 account does not affect the validity of any claim of lien
27 being enforced through a foreclosure case filed prior to the
28 date the demand for statement is received by the lienor.
29 (5)(a) Any lienor who has recorded filed a claim of
30
31 (Redesignate subsequent sections.)
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1 ================ T I T L E A M E N D M E N T ===============
2 And the title is amended as follows:
3 On page 1, lines 5-27, delete those lines
4
5 and insert:
6 specified public works projects; revising
7 requirements concerning the claimants that must
8 provide certain notices; requiring that certain
9 notices by claimants be in writing; amending s.
10 713.01, F.S.; defining the term "final
11 furnishing" and redefining the term "furnish
12 materials"; creating s. 713.012, F.S.;
13 requiring that certain notices, demands, or
14 requests be in writing; amending s. 713.015,
15 F.S.; requiring that certain notices pertaining
16 to direct contracts greater than $2,500 for
17 improvements to certain property be in writing;
18 amending s. 713.02, F.S.; providing for an
19 owner and contractor to agree to the furnishing
20 of a payment bond; exempting an owner who
21 agrees from certain statutory provisions;
22 amending s. 713.07, F.S.; providing for the
23 recommencement of construction following the
24 termination of certain contracts; amending s.
25 713.08, F.S.; requiring that certain claims of
26 lien be prepared and sworn to or affirmed by
27 the lienor or various agents of the lienor;
28 revising and conforming certain exceptions to a
29 time limitation on recording of a claim of
30 lien; amending s. 713.13, F.S.; revising the
31 form for notices of commencement to include an
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1 additional warning and notarized statements and
2 signatures; providing that the failure of a
3 person to make a specified statement under oath
4 deprives the person of a lien; requiring that
5 notices of commencement include the tax folio
6 number; providing for the recording of amended
7 notices of commencement; amending s. 713.135,
8 F.S.; requiring that building permits contain
9 certain written statements;
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