Senate Bill sb2768
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Florida Senate - 2007 SB 2768
By Senator Aronberg
27-314B-07
1 A bill to be entitled
2 An act relating to construction liens; amending
3 s. 255.05, F.S.; requiring a performance bond
4 for certain contracts with private entities for
5 specified public works projects; requiring that
6 certain notices by claimants be in writing;
7 amending s. 713.01, F.S.; defining the term
8 "final furnishing"; creating s. 713.012, F.S.;
9 requiring that certain notices, demands, or
10 requests be in writing; amending s. 713.015,
11 F.S.; requiring that certain notices pertaining
12 to direct contracts for improvements to certain
13 property be in writing; amending s. 713.02,
14 F.S.; providing for an owner and contractor to
15 agree to the furnishing of a payment bond;
16 exempting an owner who agrees from certain
17 statutory provisions; amending s. 713.07, F.S.;
18 providing for the recommencement of
19 construction following the termination of
20 certain contracts; amending s. 713.08, F.S.;
21 requiring that certain claims of lien be sworn
22 to or affirmed; revising and conforming certain
23 exceptions to a time limitation on recording of
24 a claim of lien; amending s. 713.13, F.S.;
25 requiring that notices of commencement include
26 the tax folio number; providing for the
27 recording of amended notices of commencement;
28 amending s. 713.16, F.S.; revising provisions
29 relating to a lienor's right to demand a
30 statement of account; requiring that the claim
31 of lien be recorded; deleting provisions
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1 relating to the failure to furnish the
2 statement; amending s. 713.18, F.S.; providing
3 procedures for service of notices and other
4 instruments upon a limited liability company;
5 amending s. 713.22, F.S.; extending the
6 duration of certain liens for which amended
7 claims of lien are filed; amending s. 713.31,
8 F.S.; providing for the award of attorney's
9 fees and costs to prevailing parties in certain
10 actions relating to fraudulent liens; amending
11 s. 713.36, F.S.; deleting certain obsolete
12 provisions; providing an effective date.
13
14 Be It Enacted by the Legislature of the State of Florida:
15
16 Section 1. Paragraph (a) of subsection (1) and
17 paragraph (a) of subsection (2) of section 255.05, Florida
18 Statutes, are amended to read:
19 255.05 Bond of contractor constructing public
20 buildings; form; action by materialmen.--
21 (1)(a) Any person entering into a formal contract with
22 the state or any county, city, or political subdivision
23 thereof, or other public authority or private entity, for the
24 construction of a public building, for the prosecution and
25 completion of a public work, or for repairs upon a public
26 building or public work shall be required, before commencing
27 the work or before recommencing the work after a default or
28 abandonment, to execute, deliver to the public owner, and
29 record in the public records of the county where the
30 improvement is located, a payment and performance bond with a
31 surety insurer authorized to do business in this state as
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1 surety. A public entity may not require a contractor to secure
2 a surety bond under this section from a specific agent or
3 bonding company. The bond must state on its front page: the
4 name, principal business address, and phone number of the
5 contractor, the surety, the owner of the property being
6 improved, and, if different from the owner, the contracting
7 public entity; the contract number assigned by the contracting
8 public entity; and a description of the project sufficient to
9 identify it, such as a legal description or the street address
10 of the property being improved, and a general description of
11 the improvement. Such bond shall be conditioned upon the
12 contractor's performance of the construction work in the time
13 and manner prescribed in the contract and promptly making
14 payments to all persons defined in s. 713.01 who furnish
15 labor, services, or materials for the prosecution of the work
16 provided for in the contract. Any claimant may apply to the
17 governmental entity having charge of the work for copies of
18 the contract and bond and shall thereupon be furnished with a
19 certified copy of the contract and bond. The claimant shall
20 have a right of action against the contractor and surety for
21 the amount due him or her, including unpaid finance charges
22 due under the claimant's contract. Such action shall not
23 involve the public authority in any expense. When such work is
24 done for the state and the contract is for $100,000 or less,
25 no payment and performance bond shall be required. At the
26 discretion of the official or board awarding such contract
27 when such work is done for any county, city, political
28 subdivision, or public authority, any person entering into
29 such a contract which is for $200,000 or less may be exempted
30 from executing the payment and performance bond. When such
31 work is done for the state, the Secretary of the Department of
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1 Management Services may delegate to state agencies the
2 authority to exempt any person entering into such a contract
3 amounting to more than $100,000 but less than $200,000 from
4 executing the payment and performance bond. In the event such
5 exemption is granted, the officer or officials shall not be
6 personally liable to persons suffering loss because of
7 granting such exemption. The Department of Management Services
8 shall maintain information on the number of requests by state
9 agencies for delegation of authority to waive the bond
10 requirements by agency and project number and whether any
11 request for delegation was denied and the justification for
12 the denial. Any provision in a payment bond furnished for
13 public work contracts as provided by this subsection which
14 restricts the classes of persons as defined in s. 713.01
15 protected by the bond or the venue of any proceeding relating
16 to such bond is unenforceable.
17 (2)(a)1. If a claimant is no longer furnishing labor,
18 services, or materials on a project, a contractor or the
19 contractor's agent or attorney may elect to shorten the
20 prescribed time in this paragraph within which an action to
21 enforce any claim against a payment bond provided pursuant to
22 this section may be commenced by recording in the clerk's
23 office a notice in substantially the following form:
24
25 NOTICE OF CONTEST OF CLAIM
26 AGAINST PAYMENT BOND
27
28 To: ...(Name and address of claimant)...
29
30 You are notified that the undersigned contests your
31 notice of nonpayment, dated ............, ........, and served
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1 on the undersigned on ............, ........, and that the
2 time within which you may file suit to enforce your claim is
3 limited to 60 days after the date of service of this notice.
4
5 DATED on ............, .........
6
7 Signed:...(Contractor or Attorney)...
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9 The claim of any claimant upon whom such notice is served and
10 who fails to institute a suit to enforce his or her claim
11 against the payment bond within 60 days after service of such
12 notice shall be extinguished automatically. The clerk shall
13 mail a copy of the notice of contest to the claimant at the
14 address shown in the notice of nonpayment or most recent
15 amendment thereto and shall certify to such service on the
16 face of such notice and record the notice. Service is complete
17 upon mailing.
18 2. A claimant, except a laborer, who is not in privity
19 with the contractor shall, before commencing or not later than
20 45 days after commencing to furnish labor, materials, or
21 supplies for the prosecution of the work, furnish the
22 contractor with a written notice that he or she intends to
23 look to the bond for protection. A claimant who is not in
24 privity with the contractor and who has not received payment
25 for his or her labor, materials, or supplies shall deliver to
26 the contractor and to the surety written notice of the
27 performance of the labor or delivery of the materials or
28 supplies and of the nonpayment. The notice of nonpayment may
29 be served at any time during the progress of the work or
30 thereafter but not before 45 days after the first furnishing
31 of labor, services, or materials, and not later than 90 days
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1 after the final furnishing of the labor, services, or
2 materials by the claimant or, with respect to rental
3 equipment, not later than 90 days after the date that the
4 rental equipment was last on the job site available for use.
5 Any notice of nonpayment served by a claimant who is not in
6 privity with the contractor which includes sums for retainage
7 must specify the portion of the amount claimed for retainage.
8 No action for the labor, materials, or supplies may be
9 instituted against the contractor or the surety unless both
10 notices have been given. Notices required or permitted under
11 this section may be served in accordance with s. 713.18. A
12 claimant may not waive in advance his or her right to bring an
13 action under the bond against the surety. In any action
14 brought to enforce a claim against a payment bond under this
15 section, the prevailing party is entitled to recover a
16 reasonable fee for the services of his or her attorney for
17 trial and appeal or for arbitration, in an amount to be
18 determined by the court, which fee must be taxed as part of
19 the prevailing party's costs, as allowed in equitable actions.
20 The time periods for service of a notice of nonpayment or for
21 bringing an action against a contractor or a surety shall be
22 measured from the last day of furnishing labor, services, or
23 materials by the claimant and shall not be measured by other
24 standards, such as the issuance of a certificate of occupancy
25 or the issuance of a certificate of substantial completion.
26 Section 2. Present subsections (12)-(28) of section
27 713.01, Florida Statutes, are redesignated as subsections
28 (13)-(29), respectively, and a new subsection (12) is added to
29 that section, to read:
30 713.01 Definitions.--As used in this part, the term:
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1 (12) "Final furnishing" means the last date that the
2 lienor furnishes labor, services, or materials. Such date may
3 not be measured by other standards, such as the issuance of a
4 certificate of occupancy or the issuance of a certificate of
5 final completion, and does not include correction of
6 deficiencies in the lienor's previously performed work or
7 materials supplied. With respect to rental equipment, the term
8 means the date that the rental equipment was last on the job
9 site and available for use.
10 Section 3. Section 713.012, Florida Statutes, is
11 created to read:
12 713.012 Written notices, demands, or
13 requests.--Notices, demands, or requests permitted or required
14 under this part, except any required by s. 713.04, must be in
15 writing.
16 Section 4. Section 713.015, Florida Statutes, is
17 amended to read:
18 713.015 Mandatory provisions for direct contracts.--
19 (1) Any direct contract between an owner and a
20 contractor, related to improvements to real property
21 consisting of single or multiple family dwellings up to and
22 including four units, must contain the following notice
23 provision printed in no less than 14-point, capitalized,
24 boldfaced type on the front page of the contract:
25
26 ACCORDING TO FLORIDA'S CONSTRUCTION LIEN LAW (SECTIONS
27 713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR
28 PROPERTY OR PROVIDE MATERIALS AND ARE NOT PAID IN FULL HAVE A
29 RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR
30 PROPERTY. IF YOUR CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY
31 SUBCONTRACTORS, SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THE
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1 PEOPLE WHO ARE OWED MONEY MAY LOOK TO YOUR PROPERTY FOR
2 PAYMENT, EVEN IF YOU HAVE ALREADY PAID YOUR CONTRACTOR IN
3 FULL. IF YOU FAIL TO PAY YOUR CONTRACTOR, YOUR CONTRACTOR MAY
4 ALSO HAVE A LIEN ON YOUR PROPERTY. THIS MEANS IF A LIEN IS
5 FILED YOUR PROPERTY COULD BE SOLD AGAINST YOUR WILL TO PAY FOR
6 LABOR, MATERIALS, OR OTHER SERVICES THAT YOUR CONTRACTOR OR A
7 SUBCONTRACTOR MAY HAVE FAILED TO PAY. TO PROTECT YOURSELF, YOU
8 SHOULD STIPULATE IN THIS CONTRACT THAT BEFORE ANY PAYMENT IS
9 MADE, YOUR CONTRACTOR IS REQUIRED TO PROVIDE YOU WITH A
10 WRITTEN RELEASE OF LIEN FROM ANY PERSON OR COMPANY THAT HAS
11 PROVIDED TO YOU A "NOTICE TO OWNER." FLORIDA'S CONSTRUCTION
12 LIEN LAW IS COMPLEX, AND IT IS RECOMMENDED THAT YOU CONSULT AN
13 ATTORNEY.
14 (2)(a) If the contract is written, the notice must be
15 in the contract document. If the contract is oral or implied,
16 the notice must be provided in a document referencing the
17 contract.
18 (b) The failure to provide such written notice does
19 not bar the enforcement of a lien against a person who has not
20 been adversely affected.
21 (c) Nothing in This section may not shall be construed
22 to adversely affect the lien and bond rights of lienors who
23 are not in privity with the owner. This section does not apply
24 when the owner is a contractor licensed under chapter 489 or
25 is a person who created parcels or offers parcels for sale or
26 lease in the ordinary course of business.
27 Section 5. Subsection (6) of section 713.02, Florida
28 Statutes, is amended to read:
29 713.02 Types of lienors and exemptions.--
30 (6) In any direct contract The owner and contractor
31 may agree that require the contractor shall to furnish a
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1 payment bond as provided in s. 713.23, and upon receipt of the
2 bond the owner is shall be exempt from the other provisions of
3 this part as to that direct contract, but this does not exempt
4 the owner from the lien of the contractor who furnishes the
5 bond. If the bond is provided, it shall secure all liens
6 subsequently accruing under this part as provided in s.
7 713.23.
8 Section 6. Subsection (4) of section 713.07, Florida
9 Statutes, is amended to read:
10 713.07 Priority of liens.--
11 (4) If construction ceases or the direct contract is
12 terminated before completion and the owner desires to
13 recommence construction, he or she may pay all lienors in full
14 or pro rata in accordance with s. 713.06(4) prior to
15 recommencement in which event all liens for the recommenced
16 construction shall take priority from such recommencement; or
17 the owner may record an affidavit in the clerk's office
18 stating his or her intention to recommence construction and
19 that all lienors giving notice have been paid in full except
20 those listed therein as not having been so paid in which event
21 30 days after such recording, the rights of any person
22 acquiring any interest, lien, or encumbrance on said property
23 or of any lienor on the recommenced construction shall be
24 paramount to any lien on the prior construction unless such
25 prior lienor records a claim of lien within said 30-day
26 period. A copy of said affidavit shall be served on each
27 lienor named therein. Before recommencing, the owner shall
28 record and post a notice of commencement for the recommenced
29 construction, as provided in s. 713.13.
30 Section 7. Subsections (2) and (5) of section 713.08,
31 Florida Statutes, are amended to read:
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1 713.08 Claim of lien.--
2 (2) The claim of lien shall be signed and sworn to or
3 affirmed verified by the lienor or the lienor's her or his
4 agent acquainted with the facts stated therein.
5 (5) The claim of lien may be recorded at any time
6 during the progress of the work or thereafter but not later
7 than 90 days after the final furnishing of the labor or
8 services or materials by the lienor. However,; or, with
9 respect to rental equipment, within 90 days after the date
10 that the rental equipment was last on the job site available
11 for use; provided if the original contractor defaults or the
12 contract is terminated under s. 713.07(4), a no claim for a
13 lien attaching prior to such termination may not default shall
14 be recorded after 90 days following from the date of such
15 termination default or 90 days after the final performance of
16 labor or services or furnishing of materials, whichever occurs
17 first. The time period for recording a claim of lien shall be
18 measured from the last day of furnishing of labor, services,
19 or materials by the lienor, whichever occurs first and shall
20 not be measured by other standards, such as the issuance of a
21 certificate of occupancy or the issuance of a certificate of
22 substantial completion. The claim of lien shall be recorded in
23 the clerk's office. If such real property is situated in two
24 or more counties, the claim of lien shall be recorded in the
25 clerk's office in each of such counties. The recording of the
26 claim of lien shall be constructive notice to all persons of
27 the contents and effect of such claim. The validity of the
28 lien and the right to record a claim therefor shall not be
29 affected by the insolvency, bankruptcy, or death of the owner
30 before the claim of lien is recorded.
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1 Section 8. Paragraph (a) of subsection (1) of section
2 713.13, Florida Statutes, is amended, present subsections (5)
3 and (6) of that section are redesignated as subsections (6)
4 and (7), respectively, and a new subsection (5) is added to
5 that section, to read:
6 713.13 Notice of commencement.--
7 (1)(a) Except for an improvement that is exempt
8 pursuant to s. 713.02(5), an owner or the owner's authorized
9 agent before actually commencing to improve any real property,
10 or recommencing completion of any improvement after default or
11 abandonment, whether or not a project has a payment bond
12 complying with s. 713.23, shall record a notice of
13 commencement in the clerk's office and forthwith post either a
14 certified copy thereof or a notarized statement that the
15 notice of commencement has been filed for recording along with
16 a copy thereof. The notice of commencement shall contain the
17 following information:
18 1. A description sufficient for identification of the
19 real property to be improved. The description should include
20 the legal description of the property and also should include
21 the street address and tax folio number of the property if
22 available or, if there is no street address available, such
23 additional information as will describe the physical location
24 of the real property to be improved.
25 2. A general description of the improvement.
26 3. The name and address of the owner, the owner's
27 interest in the site of the improvement, and the name and
28 address of the fee simple titleholder, if other than such
29 owner.
30 4. The name and address of the contractor.
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1 5. The name and address of the surety on the payment
2 bond under s. 713.23, if any, and the amount of such bond.
3 6. The name and address of any person making a loan
4 for the construction of the improvements.
5 7. The name and address within the state of a person
6 other than himself or herself who may be designated by the
7 owner as the person upon whom notices or other documents may
8 be served under this part; and service upon the person so
9 designated constitutes service upon the owner.
10 (5)(a) A notice of commencement that is recorded
11 within the effective period may be amended to extend the
12 effective period, to change erroneous information in the
13 original notice, or to add information that was omitted from
14 the original notice. However, in order to change contractors,
15 a new notice of commencement or notice of recommencement must
16 be executed and recorded.
17 (b) The amended notice must identify the official
18 records book and page where the original notice of
19 commencement is recorded, and a copy of the amended notice
20 must be served by the owner upon the contractor and each
21 lienor who serves notice before or within 30 days after the
22 date the amended notice is recorded.
23 Section 9. Subsections (5) and (6) of section 713.16,
24 Florida Statutes, are amended to read:
25 713.16 Demand for copy of contract and statements of
26 account; form.--
27 (5)(a) Any lienor who has recorded filed a claim of
28 lien may make written demand on the owner for a written
29 statement under oath showing:
30 1. The amount of the all direct contract under which
31 the lien was recorded; contracts; the amount paid by or on
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1 behalf of the owner for all labor, services, and materials
2 furnished pursuant to the direct contracts;
3 2. The dates and amounts paid or to be paid by or on
4 behalf of the owner for all improvements described in the any
5 direct contract contracts; and
6 3. The reasonable estimated costs of completing the,
7 according to the terms and specifications of same, any direct
8 contract under which the lien was claimed pursuant to the
9 scope of the direct contract; and construction has ceased.
10 4. If known, the actual cost of completion must be
11 provided.
12 (b) Any owner who does not provide the statement
13 within 30 days after demand, or who provides a false or
14 fraudulent statement, is not a prevailing party for purposes
15 of an award of attorney's fees under s. 713.29. The written
16 demand must include the following warning in conspicuous type
17 in substantially the following form:
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19 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED
20 STATEMENT WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
21 STATEMENT WILL RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER
22 ATTORNEY FEES IN ANY ACTION TO ENFORCE THE CLAIM OF LIEN OF
23 THE PERSON REQUESTING THIS STATEMENT.
24 (6) For purposes of this section, the term
25 "information" means the nature and quantity of the labor,
26 services, and materials furnished or to be furnished by a
27 lienor and the amount paid, the amount due, and the amount to
28 become due on the lienor's account. The failure to furnish the
29 statement under oath does not constitute an omission of
30 information and shall deprive the lienor of his or her lien.
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1 Section 10. Section 713.18, Florida Statutes, is
2 amended to read:
3 713.18 Manner of serving notices and other
4 instruments.--
5 (1) Service of notices, claims of lien, affidavits,
6 assignments, and other instruments permitted or required under
7 this part, or copies thereof when so permitted or required,
8 unless otherwise specifically provided in this part, must be
9 made by one of the following methods:
10 (a) By actual delivery to the person to be served; or,
11 if a partnership, to one of the partners; or, if a
12 corporation, to an officer, director, managing agent, or
13 business agent; or, if a limited liability company, to a
14 member or manager thereof.
15 (b) By sending the same by registered or certified
16 mail, with postage prepaid, or by overnight or second-day
17 delivery with evidence of delivery, which may be in an
18 electronic format.
19 (c) If neither method can be accomplished, by posting
20 on the premises.
21 (2)1. Notwithstanding subsection (1), if a notice to
22 owner, a notice to contractor under s. 713.23, or a
23 preliminary notice under s. 255.05 is mailed by registered or
24 certified mail with postage prepaid to the person to be served
25 at any of the addresses set forth in subsection (3)
26 subparagraph 2. within 40 days after the date the lienor first
27 furnishes labor, services, or materials, service of that
28 notice is effective as of the date of mailing if the person
29 who served the notice maintains a registered or certified mail
30 log that shows the registered or certified mail number issued
31 by the United States Postal Service, the name and address of
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1 the person served, and the date stamp of the United States
2 Postal Service confirming the date of mailing or if the person
3 who served the notice maintains electronic tracking records
4 generated through use of the United States Postal Service
5 Confirm service or a similar service containing the postal
6 tracking number, the name and address of the person served,
7 and verification of the date of receipt by the United States
8 Postal Service.
9 (3)2. If an instrument served pursuant to this section
10 to the last address shown in the notice of commencement or any
11 amendment thereto or, in the absence of a notice of
12 commencement, to the last address shown in the building permit
13 application, or to the last known address of the person to be
14 served, is not received, but is returned as being "refused,"
15 "moved, not forwardable," or "unclaimed," or is otherwise not
16 delivered or deliverable through no fault of the person
17 serving the item, then service is effective on the date the
18 instrument notice was sent.
19 (c) If none of the foregoing methods can be
20 accomplished, by posting on the premises.
21 (4)(2) If the real property is owned by more than one
22 person or a partnership, a lienor may serve any notices or
23 other papers under this part on any one of such owners or
24 partners, and such notice is deemed notice to all owners and
25 partners.
26 Section 11. Subsection (1) of section 713.22, Florida
27 Statutes, is amended to read:
28 713.22 Duration of lien.--
29 (1) No lien provided by this part shall continue for a
30 longer period than 1 year after the claim of lien has been
31 recorded or 1 year after the recording of an amended claim of
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1 lien that shows a later date of final furnishing of labor,
2 services, or materials, unless within that time an action to
3 enforce the lien is commenced in a court of competent
4 jurisdiction. The continuation of the lien effected by the
5 commencement of the action shall not be good against creditors
6 or subsequent purchasers for a valuable consideration and
7 without notice, unless a notice of lis pendens is recorded.
8 Section 12. Paragraph (c) of subsection (2) of section
9 713.31, is amended to read:
10 713.31 Remedies in case of fraud or collusion.--
11 (2)
12 (c) An owner against whose interest in real property a
13 fraudulent lien is filed, or any contractor, subcontractor, or
14 sub-subcontractor who suffers damages as a result of the
15 filing of the fraudulent lien, shall have a right of action
16 for damages occasioned thereby. The action may be instituted
17 independently of any other action, or in connection with a
18 summons to show cause under s. 713.21, or as a counterclaim or
19 cross-claim to any action to enforce or to determine the
20 validity of the lien. The prevailing party in an action under
21 this paragraph may recover reasonable attorney's fees and
22 costs. If the lienor who files a fraudulent lien is not the
23 prevailing party, the lienor shall be liable to the owner or
24 the defrauded party who prevails in an action under this
25 subsection in damages, which shall include court costs,
26 clerk's fees, a reasonable attorney's fee and costs for
27 services in securing the discharge of the lien, the amount of
28 any premium for a bond given to obtain the discharge of the
29 lien, interest on any money deposited for the purpose of
30 discharging the lien, and punitive damages in an amount not
31 exceeding the difference between the amount claimed by the
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1 lienor to be due or to become due and the amount actually due
2 or to become due.
3 Section 13. Section 713.36, is amended to read:
4 713.36 Effective date.--Chapter 63-135 shall take
5 effect at 12:01 a.m., October 1, 1963. The rights of all
6 persons with respect to an improvement that has a time of
7 visible commencement prior to October 1, 1963, shall be
8 determined and enforced as provided in former ss. 84.01-84.35,
9 as they existed prior to October 1, 1963. As to all other
10 rights, former ss. 84.01-84.35 are repealed concurrently with
11 the effective time of this part.
12 Section 14. This act shall take effect July 1, 2007.
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15 SENATE SUMMARY
16 Revises provision relating to the Construction Lien Law.
Revises performance bond and notice requirements.
17 Establishes procedures related to the recommencement of
construction. Provides bond requirements. Requires that
18 certain notices, requests, or demands be in writing.
Requires that certain claims of lien be sworn to or
19 affirmed. Provides notice of commencement requirements.
Provides requirements for recording amended notices of
20 commencement. Revises requirement for lienors to demand
statements of account. Provides procedures for service on
21 a limited liability company. Extends the duration of
certain liens. Provides for the award of attorney's fees
22 in certain actions. Deletes certain obsolete provisions.
(See bill for details.)
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