Florida Senate - 2010 CS for CS for SB 1048
By the Committees on Judiciary; and Regulated Industries; and
Senator Baker
590-03780-10 20101048c2
1 A bill to be entitled
2 An act relating to construction bonds; amending s.
3 255.05, F.S.; requiring that a contractor record in
4 the official records a payment bond for a public works
5 construction project; requiring that the bond number
6 be stated on the first page of the bond; prohibiting
7 the issuing authority for a building permit or a
8 private provider performing inspection services from
9 inspecting the property being improved until certain
10 documents are filed; providing that a payment and
11 performance bond is not required for certain
12 contracts; authorizing certain entities to exempt
13 certain contracts from the requirement for a payment
14 and performance bond; requiring the clerk of court to
15 mail a notice of contest of lien by certified or
16 registered mail; amending s. 713.015, F.S.; requiring
17 that a contractor provide an owner with a general
18 statement of an owner’s rights and responsibilities
19 under Florida’s Construction Lien Law; requiring that
20 a signed copy of the statement be filed with the
21 building permit application; specifying the form and
22 content of the statement; deleting the requirement
23 that notice be included in the direct contract between
24 the contractor and the owner; amending s. 713.06,
25 F.S.; revising the form of a notice for liens of
26 persons not in privity with the owner; amending s.
27 713.09, F.S.; including improvements to units in
28 provisions relating to a single claim of lien;
29 deleting certain requirements relating to direct
30 contracts; amending s. 713.13, F.S.; revising the form
31 of the notice of commencement; requiring the posting
32 of a payment bond on a job site; amending s. 713.135,
33 F.S.; revising the warning to the owner printed on
34 certain permit cards; deleting a requirement relating
35 to filing a notice of commencement before certain
36 inspections; revising the warning to the owner
37 provided on a building permit form; deleting
38 provisions requiring the authority issuing a building
39 permit to provide certain statements and information;
40 requiring the Department of Business and Professional
41 Regulation to include forms and information relating
42 to the construction lien laws on its website; creating
43 s. 713.137, F.S.; prohibiting the authority issuing a
44 building permit or a private provider performing
45 inspection services from inspecting an improvement
46 until certain documents have been filed and the
47 information in the notice of commencement meets
48 certain standards; providing exceptions; amending s.
49 713.16, F.S.; revising requirements for demands for a
50 copy of a construction contract and a statement of
51 account; authorizing a lienor who submits or mails a
52 claim of lien to the clerk for recording to make
53 certain demands to an owner for certain written
54 statements; providing requirements for such written
55 demands; amending s. 713.18, F.S.; providing
56 additional methods by which certain items may be
57 served by mail; specifying the information required on
58 certain written instruments under certain
59 circumstances; amending s. 713.22, F.S.; requiring
60 that the clerk of court serve a notice of contest of
61 lien; amending s. 713.23, F.S.; requiring that the
62 clerk of court mail a notice of contest of nonpayment
63 by certified or registered mail; conforming cross
64 references; amending s. 713.24, F.S.; requiring that
65 the clerk of court mail, by certified or registered
66 mail, a copy of the certificate showing the transfer
67 of a lien and a copy of the security if the lien is
68 transferred to a security; authorizing a clerk to
69 collect certain service charges under certain
70 circumstances; providing an effective date.
71
72 Be It Enacted by the Legislature of the State of Florida:
73
74 Section 1. Subsection (1) and paragraph (a) of subsection
75 (2) of section 255.05, Florida Statutes, are amended to read:
76 255.05 Bond of contractor constructing public buildings;
77 form; action by materialmen.—
78 (1)(a) Any person entering into a formal contract with the
79 state or any county, municipality city, or political subdivision
80 thereof, or other public authority or private entity, for the
81 construction of a public building, for the prosecution and
82 completion of a public work, or for repairs upon a public
83 building or public work shall be required, before commencing the
84 work or before recommencing the work after a default or
85 abandonment, to execute and, deliver to the public owner, and
86 record in the public records of the county where the improvement
87 is located, a payment and performance bond with a surety insurer
88 authorized to do business in this state as surety.
89 (a) A public entity may not require a contractor to secure
90 a surety bond under this section from a specific agent or
91 bonding company.
92 (b) The bond must state on its front page: the name,
93 principal business address, and phone number of the contractor,
94 the surety, the owner of the property being improved, and, if
95 different from the owner, the contracting public entity; the
96 contract number assigned by the contracting public entity; the
97 bond number assigned by the surety; and a description of the
98 project sufficient to identify it, such as a legal description
99 or the street address of the property being improved, and a
100 general description of the improvement.
101 (c) Such bond shall be conditioned upon the contractor’s
102 performance of the construction work in the time and manner
103 prescribed in the contract and promptly making payments to all
104 persons defined in s. 713.01 who furnish labor, services, or
105 materials for the prosecution of the work provided for in the
106 contract.
107 (d) The contractor shall record the payment bond upon
108 issuance in the official records of the county in which the
109 improvement will be located.
110 (e)1. The issuing authority for the building permit, or a
111 private provider performing inspection services, may not inspect
112 the property being improved until:
113 a. The issuing authority has a copy of the contractor’s
114 recorded payment bond on file; or
115 b. The contracting public entity has filed with the issuing
116 authority a notarized statement stating that the contract is
117 exempt from the requirement for a payment bond as provided in
118 this section.
119 2. This paragraph does not apply to inspections for the
120 installation of temporary electrical service or other temporary
121 utility service, land clearing, or other preliminary site work.
122 (f) Any claimant may apply to the governmental entity
123 having charge of the work for copies of the contract and bond
124 and shall thereupon be furnished with a certified copy of the
125 contract and bond. The claimant has shall have a right of action
126 against the contractor and surety for the amount due him or her,
127 including unpaid finance charges due under the claimant’s
128 contract. Such action shall not involve the public authority in
129 any expense.
130 (g)1. A payment and performance bond is not required for a
131 contract with the state for $100,000 or less. When such work is
132 done for the state and the contract is for $100,000 or less, no
133 payment and performance bond shall be required.
134 2. At the discretion of The official or board awarding a
135 such contract when such work is done for a any county,
136 municipality city, political subdivision, or public authority
137 may exempt a contract, any person entering into such a contract
138 which is for $200,000 or less from the requirement for a may be
139 exempted from executing the payment and performance bond.
140 3. When such work is done for the state, The Secretary of
141 Management Services may delegate to a state agency agencies the
142 authority to exempt any person entering into such a contract for
143 amounting to more than $100,000 but less than $200,000 from the
144 requirement for a executing the payment and performance bond. If
145 In the event such exemption is granted, the officer or officials
146 are shall not be personally liable to persons suffering loss
147 because of granting such exemption. The Department of Management
148 Services shall maintain information on the number of requests by
149 state agencies for delegation of authority to waive the bond
150 requirements by agency and project number and whether any
151 request for delegation was denied and the justification for the
152 denial.
153 (h) Any provision in a payment bond furnished for public
154 work contracts as provided by this subsection which restricts
155 the classes of persons as defined in s. 713.01 protected by the
156 bond or the venue of any proceeding relating to such bond is
157 unenforceable.
158 (i)(b) The Department of Management Services shall adopt
159 rules with respect to all contracts for $200,000 or less, to
160 provide:
161 1. Procedures for retaining up to 10 percent of each
162 request for payment submitted by a contractor and procedures for
163 determining disbursements from the amount retained on a pro rata
164 basis to laborers, materialmen, and subcontractors, as defined
165 in s. 713.01.
166 2. Procedures for requiring certification from laborers,
167 materialmen, and subcontractors, as defined in s. 713.01, prior
168 to final payment to the contractor, that such laborers,
169 materialmen, and subcontractors have no claims against the
170 contractor resulting from the completion of the work provided
171 for in the contract.
172
173 The state is shall not be held liable to any laborer,
174 materialman, or subcontractor for any amounts greater than the
175 pro rata share as determined under this section.
176 (j)(c)1. The amount of the bond shall equal the contract
177 price, except that for a contract in excess of $250 million, if
178 the state, county, municipality, political subdivision, or other
179 public entity finds that a bond in the amount of the contract
180 price is not reasonably available, the public owner shall set
181 the amount of the bond at the largest amount reasonably
182 available, but not less than $250 million.
183 2. For construction-management or design-build contracts,
184 if the public owner does not include in the bond amount the cost
185 of design or other nonconstruction services, the bond may not be
186 conditioned on performance of such services or payment to
187 persons furnishing such services. Notwithstanding paragraph (h)
188 (a), such a bond may exclude persons furnishing such services
189 from the classes of persons protected by the bond.
190 (2)(a)1. If a claimant is no longer furnishing labor,
191 services, or materials on a project, a contractor or the
192 contractor’s agent or attorney may elect to shorten the
193 prescribed time in this paragraph within which an action to
194 enforce any claim against a payment bond must provided pursuant
195 to this section may be commenced by recording in the clerk’s
196 office a notice in substantially the following form:
197 NOTICE OF CONTEST OF CLAIM
198 AGAINST PAYMENT BOND
199
200 To: ...(Name and address of claimant)...
201
202 You are notified that the undersigned contests your notice
203 of nonpayment, dated ............, ........, and served on the
204 undersigned on ............, ........, and that the time within
205 which you may file suit to enforce your claim is limited to 60
206 days after the date of service of this notice.
207
208 DATED on ............, .........
209
210 Signed:...(Contractor or Attorney)...
211
212 The claim of any claimant upon whom such notice is served and
213 who fails to institute a suit to enforce his or her claim
214 against the payment bond within 60 days after service of such
215 notice shall be extinguished automatically. The clerk shall mail
216 a copy of the notice of contest to the claimant at the address
217 shown in the notice of nonpayment or most recent amendment
218 thereto by certified or registered mail, return receipt
219 requested, and shall certify to such service on the face of such
220 notice and record the notice. Service is complete upon mailing.
221 2. A claimant, except a laborer, who is not in privity with
222 the contractor shall, before commencing or not later than 45
223 days after commencing to furnish labor, services, or materials
224 for the prosecution of the work, furnish the contractor with a
225 written notice that he or she intends to look to the bond for
226 protection. A claimant who is not in privity with the contractor
227 and who has not received payment for his or her labor, services,
228 or materials shall deliver to the contractor and to the surety
229 written notice of the performance of the labor or delivery of
230 the materials or supplies and of the nonpayment. The notice of
231 nonpayment may be served at any time during the progress of the
232 work or thereafter but not before 45 days after the first
233 furnishing of labor, services, or materials, and not later than
234 90 days after the final furnishing of the labor, services, or
235 materials by the claimant or, with respect to rental equipment,
236 not later than 90 days after the date that the rental equipment
237 was last on the job site available for use. Any notice of
238 nonpayment served by a claimant who is not in privity with the
239 contractor which includes sums for retainage must specify the
240 portion of the amount claimed for retainage. An No action for
241 the labor, materials, or supplies may not be instituted against
242 the contractor or the surety unless both notices have been
243 given. Notices required or permitted under this section may be
244 served in accordance with s. 713.18. A claimant may not waive in
245 advance his or her right to bring an action under the bond
246 against the surety. In any action brought to enforce a claim
247 against a payment bond under this section, the prevailing party
248 is entitled to recover a reasonable fee for the services of his
249 or her attorney for trial and appeal or for arbitration, in an
250 amount to be determined by the court, and the which fee must be
251 taxed as part of the prevailing party’s costs, as allowed in
252 equitable actions. The time periods for service of a notice of
253 nonpayment or for bringing an action against a contractor or a
254 surety shall be measured from the last day of furnishing labor,
255 services, or materials by the claimant and shall not be measured
256 by other standards, such as the issuance of a certificate of
257 occupancy or the issuance of a certificate of substantial
258 completion.
259 Section 2. Section 713.015, Florida Statutes, is amended to
260 read:
261 713.015 General statement of owner’s rights and
262 responsibilities Mandatory provisions for direct contracts.—
263 (1) For any direct contract greater than $2,500 between an
264 owner and a contractor, related to improvements to real property
265 consisting of single or multiple family dwellings up to and
266 including four units, the contractor must provide the owner with
267 a copy of the general statement of owner’s rights and
268 responsibilities under Florida’s Construction Lien Law as set
269 forth in subsection (2), which must be contain the following
270 notice provision printed in no less than 12-point, capitalized,
271 boldfaced type on the front page of the contract or on a
272 separate page, signed by the owner and dated, and submitted with
273 the original building permit application pursuant to s.
274 713.135.:
275
276 ACCORDING TO FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001
277 713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR
278 PROVIDE MATERIALS AND SERVICES AND ARE NOT PAID IN FULL HAVE A
279 RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY.
280 THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR CONTRACTOR
281 OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB
282 SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THOSE PEOPLE WHO ARE OWED
283 MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE
284 ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR
285 CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR
286 PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE
287 SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER
288 SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED
289 TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN THIS
290 CONTRACT THAT BEFORE ANY PAYMENT IS MADE, YOUR CONTRACTOR IS
291 REQUIRED TO PROVIDE YOU WITH A WRITTEN RELEASE OF LIEN FROM ANY
292 PERSON OR COMPANY THAT HAS PROVIDED TO YOU A “NOTICE TO OWNER.”
293 FLORIDA’S CONSTRUCTION LIEN LAW IS COMPLEX, AND IT IS
294 RECOMMENDED THAT YOU CONSULT AN ATTORNEY.
295 (2) The general statement of an owner’s rights and
296 responsibilities under Florida’s Construction Lien Law must be
297 in substantially the following form, must include the
298 information contained in the following form, and must include a
299 copy of a notice of commencement as provided in s. 713.13(1).
300
301 GENERAL STATEMENT OF OWNER’S RIGHTS AND RESPONSIBILITIES
302 UNDER FLORIDA’S CONSTRUCTION LIEN LAW
303 (Required by Section 713.015, Florida Statutes)
304
305 ABOUT THIS DOCUMENT.—Florida law requires your contractor
306 to provide you with this document when you are contracting to
307 make improvements to real property. It is critical that you have
308 some understanding of Florida’s construction lien and payment
309 laws and take appropriate steps to protect your investment and
310 fulfill your obligations to those who provide labor, services or
311 materials for your project.
312
313 You must acknowledge that you have received and read this
314 document by signing on the signature page. The original signed
315 document must be delivered to the building permit authority,
316 along with the building permit application for your project.
317 Your building permit application will not be processed unless
318 this signed document is in the file. You need to retain a copy
319 of this document so that you can follow the procedures described
320 in the document and identify the proper statutory forms as you
321 proceed with your construction project.
322
323 IT IS ALWAYS RECOMMENDED THAT YOU CONSULT LEGAL ADVICE
324 BEFORE UNDERTAKING REAL PROPERTY IMPROVEMENTS. IF YOU HAVE
325 QUESTIONS REGARDING THE INFORMATION CONTAINED IN THIS DOCUMENT,
326 SEEK THE ADVICE OF A FLORIDA CONSTRUCTION LAW ATTORNEY.
327
328 THE FLORIDA CONSTRUCTION LIEN LAW.—Part I of chapter 713,
329 Florida Statutes (F.S.), governs private construction projects
330 in this state. The complete text of this law can be found at
331 www.leg.state.fl.us. This statement is a guide and does not take
332 precedence over the language of Florida’s Construction Lien Law.
333
334 Under this law, those who work on your property or provide
335 materials and services and who are not paid in full have a right
336 to enforce their claim for payment against your property. This
337 claim is known as a construction lien. If your contractor or a
338 subcontractor fails to pay subcontractors, sub-subcontractors,
339 or material suppliers, those people who are owed money may look
340 to your property for payment even if you have already paid your
341 contractor in full. If you fail to pay your contractor, your
342 contractor may also have a lien on your property. This means
343 that if a valid lien is filed, your property could be sold
344 against your will to pay for labor, services, or materials that
345 your contractor or a subcontractor may have failed to pay.
346
347 FLORIDA LAW ALSO PROVIDES PROCEDURES TO PROTECT OWNERS FROM
348 PAYING MORE THAN THE AMOUNT OF THEIR CONTRACT. IF YOU FOLLOW THE
349 FOUR STEPS SET FORTH BELOW, YOU WILL PROTECT YOURSELF FROM VALID
350 LIENS AGAINST YOUR PROPERTY, AND FROM PAYING TWICE FOR LABOR,
351 SERVICES, OR MATERIALS FURNISHED FOR YOUR PROJECT.
352
353 STEP 1 — THE NOTICE OF COMMENCEMENT.—An owner is required
354 by law to complete, sign, and record in the public records a
355 Notice of Commencement for all direct contracts that exceed
356 $2,500. The information provided in the recorded Notice of
357 Commencement is relied upon by all parties who provide labor,
358 services or materials for your project. A copy of the statutory
359 Notice of Commencement form required by s. 713.13, Florida
360 Statutes, is attached to this document.
361
362 If a lender is financing your project, the lender will
363 assist you in completing the Notice of Commencement and is
364 responsible for recording it in the public records. It is
365 critical that your Notice of Commencement be recorded after any
366 construction loan or mortgage documents are recorded. If you are
367 not using a lender, preparing and recording the Notice of
368 Commencement is your responsibility. The Notice of Commencement
369 must be recorded before commencing construction and posted on
370 your jobsite. For most projects, a copy of the recorded Notice
371 of Commencement must be submitted to the building permit
372 authority prior to the first building inspection.
373
374 STEP 2 — MONITOR THE DOCUMENTS AND NOTICES YOU RECEIVE.
375 Pick up your certified mail. Most lien notices are served by
376 certified mail and you need to know who is providing labor,
377 services, or materials for your project. The law provides that
378 any properly addressed notices that are returned to the sender
379 through no fault of the sender are considered served on the date
380 sent, so failing to claim certified mail only hurts you.
381
382 If you expect to be absent for periods of time during your
383 project, you should have an attorney or other agent in a
384 position of trust who understands the law handle these details
385 for you. Make sure someone is receiving your mail and taking
386 steps to obtain the necessary lien releases before making
387 payments to your contractor. If you receive anything that you do
388 not understand, seek the assistance of an experienced
389 construction law attorney.
390
391 STEP 3 — OBTAIN SIGNED LIEN WAIVERS EACH TIME YOU MAKE A
392 PAYMENT TO YOUR CONTRACTOR.—Each time you pay your contractor
393 you should obtain a Waiver and Release of Lien form from the
394 contractor AND from anyone who has served you with a Notice to
395 Owner. Make sure that each release waives lien rights against
396 your project for work or materials furnished through the date of
397 the work or materials that your payment covers. This date is
398 probably not the date you are making the payment, but a date
399 prior to the payment date through which labor, services, or
400 materials have been billed.
401
402 UNDER FLORIDA LAW, YOU HAVE THE RIGHT TO WITHHOLD PAYMENTS
403 OWED TO THE CONTRACTOR UNTIL YOU HAVE BEEN PROVIDED WITH A
404 WRITTEN WAIVER AND RELEASE OF LIEN UPON PROGRESS PAYMENT OR A
405 WRITTEN WAIVER AND RELEASE OF LIEN UPON FINAL PAYMENT SHOWING
406 THAT THE LIENOR’S CLAIM FOR PAYMENT HAS BEEN PAID.
407
408 There are two statutory Waiver and Release of Lien forms.
409 The signed Waiver and Release of Lien Upon Progress Payment
410 should be provided to you by a contractor, subcontractor, or
411 material supplier each time you make a progress payment to your
412 contractor. The signed Waiver and Release of Lien Upon Final
413 Payment should be submitted by your contractor, a subcontractor,
414 or material supplier when they are finished furnishing all work
415 or materials for your project and have received final payment.
416 Once you receive a final waiver from a contractor,
417 subcontractor, or material supplier, you should not need another
418 waiver unless they are hired to do additional work.
419
420 STEP 4 — OBTAIN A CONTRACTOR’S FINAL PAYMENT AFFIDAVIT
421 BEFORE YOU MAKE FINAL PAYMENT TO YOUR CONTRACTOR.—In addition to
422 obtaining Final Waiver and Release of Lien forms from the
423 contractor and anyone who has served you with a Notice to Owner,
424 you should obtain a Contractor’s Final Payment Affidavit before
425 you make final payment to your contractor. This sworn affidavit
426 should reflect that everyone who supplied labor, services, or
427 materials on your project has been paid in full or should list
428 those subcontractors and suppliers who are still owed money.
429 Make sure that anyone listed as not being paid in full is paid
430 before making final payment to your contractor. You have a right
431 to rely on the information contained in the sworn affidavit when
432 you make final payment to your contractor with respect to any
433 lienor who has not served a Notice to Owner. If a lienor has
434 served you with a Notice to Owner, you should obtain a Waiver
435 and Release of Lien Upon Final Payment from that lienor.
436
437 OWNER’S ACKNOWLEDGMENT AND RECEIPT
438
439 The undersigned owner(s) of Florida real property hereby
440 acknowledge that they are preparing to enter into a contract
441 with _____________________________________________for the
442 construction of real property improvements to the following
443 described property (insert address or legal description):
444 _________________________________________
445 _________________________________________
446 ..(Signature of Property Owner)......(Date)...
447 ...(Signature of Property Owner)......(Date)...
448
449 Attached Statutory Form: Notice of Commencement
450 Additional information regarding license and insurance
451 requirements for contractors and copies of the statutory forms
452 discussed in this document can be obtained online at
453 www.myflorida.com/dbpr/pro/cilb.
454 (2)(a) If the contract is written, the notice must be in
455 the contract document. If the contract is oral or implied, the
456 notice must be provided in a document referencing the contract.
457 (3)(b) The failure to provide such written notice does not
458 bar the enforcement of a lien against a person who has not been
459 adversely affected.
460 (4)(c) This section may not be construed to adversely
461 affect the lien and bond rights of lienors who are not in
462 privity with the owner. This section does not apply when the
463 owner is a contractor licensed under chapter 489 or is a person
464 who created parcels or offers parcels for sale or lease in the
465 ordinary course of business.
466 Section 3. Paragraph (c) of subsection (2) of section
467 713.06, Florida Statutes, is amended to read:
468 713.06 Liens of persons not in privity; proper payments.—
469 (2)
470 (c) The notice may be in substantially the following form
471 and must include the information and the warning contained in
472 the following form:
473
474 WARNING! FLORIDA’S CONSTRUCTION LIEN LAW ALLOWS SOME
475 UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL
476 SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF
477 YOU HAVE MADE PAYMENT IN FULL.
478
479 UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID
480 MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING
481 TWICE.
482 TO PROTECT YOURSELF, EACH TIME YOU MAKE A PAYMENT TO THE
483 CONTRACTOR ASK YOUR CONTRACTOR TO PROVIDE YOU WITH A WRITTEN
484 WAIVER AND RELEASE OF LIEN FROM US. FOR ADDITIONAL INFORMATION,
485 REFER TO THE GENERAL STATEMENT OF OWNER’S RIGHTS AND
486 RESPONSIBILITIES WHICH WAS PROVIDED TO YOU BY OUR CONTRACTOR AT
487 THE BEGINNING OF YOUR CONSTRUCTION PROJECT. AVOID A LIEN AND
488 PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY
489 TIME YOU PAY YOUR CONTRACTOR.
490 NOTICE TO OWNER
491
492 To ...(Owner’s name and address)...
493
494 The undersigned hereby informs you that he or she has furnished
495 or is furnishing services or materials as follows:
496 ...(General description of services or materials)... for the
497 improvement of the real property identified as ...(property
498 description)... under an order given by.............
499
500 Florida law prescribes the serving of this notice and restricts
501 your right to make payments under your contract in accordance
502 with Section 713.06, Florida Statutes.
503 IMPORTANT INFORMATION FOR
504 YOUR PROTECTION
505
506 Under Florida’s laws, those who work on your property or
507 provide materials and are not paid have a right to enforce their
508 claim for payment against your property. This claim is known as
509 a construction lien.
510 If your contractor fails to pay subcontractors or material
511 suppliers or neglects to make other legally required payments,
512 the people who are owed money may look to your property for
513 payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.
514
515 PROTECT YOURSELF:
516 —RECOGNIZE that this Notice to Owner may result in a lien
517 against your property unless all those supplying a Notice to
518 Owner have been paid.
519 —LEARN more about the Construction Lien Law, Chapter 713,
520 Part I, Florida Statutes, and the meaning of this notice by
521 contacting an attorney or the Florida Department of Business and
522 Professional Regulation.
523 ......(Lienor’s Signature)......
524 ......(Lienor’s Name)......
525 ......(Lienor’s Address)......
526
527 Copies to: ...(Those persons listed in Section 713.06(2)(a) and
528 (b), Florida Statutes)...
529 The form may be combined with a notice to contractor given under
530 s. 255.05 or s. 713.23 and, if so, may be entitled “NOTICE TO
531 OWNER/NOTICE TO CONTRACTOR.”
532 Section 4. Section 713.09, Florida Statutes, is amended to
533 read:
534 713.09 Single claim of lien.—A lienor may is required to
535 record only one claim of lien covering his or her entire demand
536 against the real property when the amount demanded is for labor
537 or services or material furnished for more than one improvement
538 under the same direct contract. The single claim of lien is
539 sufficient even though the improvement is for one or more
540 improvements located on separate lots, parcels, units, or tracts
541 of land. If materials to be used on one or more improvements on
542 separate lots, parcels, units, or tracts of land under one
543 direct contract are delivered by a lienor to a place designated
544 by the person with whom the materialman contracted, other than
545 the site of the improvement, the delivery to the place
546 designated is prima facie evidence of delivery to the site of
547 the improvement and incorporation in the improvement. The single
548 claim of lien may be limited to a part of multiple lots,
549 parcels, or tracts of land and their improvements or may cover
550 all of the lots, parcels, units, or tracts of land and
551 improvements. In each claim of lien under this section, the
552 owner under the direct contract must be the same person for all
553 lots, parcels, or tracts of land against which a single claim of
554 lien is recorded.
555 Section 5. Section 713.13, Florida Statutes, is amended to
556 read:
557 713.13 Notice of commencement.—
558 (1)(a) Except for an improvement that is exempt pursuant to
559 s. 713.02(5), an owner or the owner’s authorized agent before
560 actually commencing to improve any real property, or
561 recommencing completion of any improvement after default or
562 abandonment, whether or not a project has a payment bond
563 complying with s. 713.23, shall record a notice of commencement
564 in the clerk’s office and forthwith post either a certified copy
565 thereof or a notarized statement that the notice of commencement
566 has been filed for recording along with a copy thereof. The
567 notice of commencement shall contain the following information:
568 1. A description sufficient for identification of the real
569 property to be improved. The description should include the
570 legal description of the property and also should include the
571 street address and tax folio number of the property if available
572 or, if there is no street address available, such additional
573 information as will describe the physical location of the real
574 property to be improved.
575 2. A general description of the improvement.
576 3. The name and address of the owner, the owner’s interest
577 in the site of the improvement, and the name and address of the
578 fee simple titleholder, if other than such owner.
579 4. The name and address of the contractor.
580 5. The name and address of the surety on the payment bond
581 under s. 713.23, if any, and the amount of such bond.
582 6. The name and address of any person making a loan for the
583 construction of the improvements.
584 7. The name and address within the state of a person other
585 than himself or herself who may be designated by the owner as
586 the person upon whom notices or other documents may be served
587 under this part; and service upon the person so designated
588 constitutes service upon the owner.
589 (b) The owner, at his or her option, may designate a person
590 in addition to himself or herself to receive a copy of the
591 lienor’s notice as provided in s. 713.06(2)(b), and if he or she
592 does so, the name and address of such person must be included in
593 the notice of commencement.
594 (c) If the contract between the owner and a contractor
595 named in the notice of commencement expresses a period of time
596 for completion for the construction of the improvement greater
597 than 1 year, the notice of commencement must state that it is
598 effective for a period of 1 year plus any additional period of
599 time. Any payments made by the owner after the expiration of the
600 notice of commencement are considered improper payments.
601 (d) A notice of commencement must be in substantially the
602 following form:
603
604 Permit No..... Tax Folio No.....
605 NOTICE OF COMMENCEMENT
606 State of....
607 County of....
608
609 The undersigned hereby gives notice that improvement will be
610 made to certain real property, and in accordance with Chapter
611 713, Florida Statutes, the following information is provided in
612 this Notice of Commencement.
613 1. Description of property: ...(legal description of the
614 property, and street address if available)....
615 2. General description of improvement:.....
616 3. Owner information:.....
617 a. Name and address:.....
618 b. Interest in property:.....
619 c. Name and address of fee simple titleholder (if other
620 than Owner):.....
621 4.a. Contractor: ...(name and address)....
622 b. Contractor’s phone number:.....
623 5. Surety...(a copy of the payment bond is attached, if the
624 project is bonded)....
625 a. Name and address:.....
626 b. Phone number:.....
627 c. Amount of bond: $.....
628 6.a. Lender:......(name and address).......
629 b. Lender’s phone number:.....
630 7.a. Persons within the State of Florida designated by
631 Owner upon whom notices or other documents may be served as
632 provided by Section 713.13(1)(a)7., Florida Statutes:
633 ......(name and address).......
634 b. Phone numbers of designated persons:.....
635 8.a. In addition to himself or herself, Owner designates
636 ............ of ............ to receive a copy of the Lienor’s
637 Notice as provided in Section 713.13(1)(b), Florida Statutes.
638 b. Phone number of person or entity designated by
639 owner:.....
640 9. Expiration date of notice of commencement (the
641 expiration date is 1 year from the date of recording unless a
642 later different date is specified).....
643
644 WARNING TO OWNER: IF THIS NOTICE OF COMMENCEMENT WILL EXPIRE
645 BEFORE ALL WORK IS COMPLETED AND FINAL PAYMENT IS MADE, THE
646 EXPIRATION DATE MUST BE EXTENDED. ANY PAYMENTS MADE BY THE OWNER
647 AFTER THE EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE
648 CONSIDERED IMPROPER PAYMENTS UNDER CHAPTER 713, PART I, SECTION
649 713.13, FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING TWICE
650 FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST
651 BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST
652 INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
653 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR
654 NOTICE OF COMMENCEMENT.
655
656 Under penalty of perjury, I declare that I have read the
657 foregoing notice of commencement and that the facts stated
658 therein are true to the best of my knowledge and belief.
659
660 ......(Signature of Owner or Owner’s Authorized
661 Officer/Director/Partner/Manager)......
662
663 ......(Signatory’s Title/Office)......
664
665 The foregoing instrument was acknowledged before me this ....
666 day of ...., ...(year)..., by ...(name of person)... as ...(type
667 of authority,...e.g. officer, trustee, attorney in fact)... for
668 ...(name of party on behalf of whom instrument was executed)....
669
670 ...(Signature of Notary Public - State of Florida)...
671
672 ......(Print, Type, or Stamp Commissioned Name of Notary
673 Public)......
674
675 Personally Known .... OR Produced Identification ....
676
677 Type of Identification Produced............
678
679 Verification pursuant to Section 92.525, Florida Statutes.
680
681 Under penalties of perjury, I declare that I have read the
682 foregoing and that the facts stated in it are true to the best
683 of my knowledge and belief.
684
685 ...(Signature of Natural Person Signing Above)...
686 (e) A copy of any payment bond must be attached at the time
687 of recordation of the notice of commencement. The failure to
688 attach a copy of the bond to the notice of commencement when the
689 notice is recorded negates the exemption provided in s.
690 713.02(6). However, if a payment bond under s. 713.23 exists but
691 was not attached at the time of recordation of the notice of
692 commencement, the bond may be used to transfer any recorded lien
693 of a lienor except that of the contractor by the recordation and
694 service of a notice of bond pursuant to s. 713.23(2). The notice
695 requirements of s. 713.23 apply to any claim against the bond;
696 however, the time limits for serving any required notices shall
697 begin running from the later of the time specified in s. 713.23
698 or the date the notice of bond is served on the lienor.
699 (f) The giving of a notice of commencement is effective
700 upon the filing of the notice in the clerk’s office.
701 (g) The owner must sign the notice of commencement and no
702 one else may be permitted to sign in his or her stead.
703 (2) If the improvement described in the notice of
704 commencement is not actually commenced within 90 days after the
705 recording thereof, such notice is void and of no further effect.
706 (3) The recording of a notice of commencement does not
707 constitute a lien, cloud, or encumbrance on real property, but
708 gives constructive notice that claims of lien under this part
709 may be recorded and may take priority as provided in s. 713.07.
710 The posting of a copy does not constitute a lien, cloud, or
711 encumbrance on real property, nor actual or constructive notice
712 of any of them.
713 (4) This section does not apply to an owner who is
714 constructing improvements described in s. 713.04.
715 (5)(a) A notice of commencement that is recorded within the
716 effective period may be amended to extend the effective period,
717 change erroneous information in the original notice, or add
718 information that was omitted from the original notice. However,
719 in order to change contractors, a new notice of commencement or
720 notice of recommencement must be executed and recorded.
721 (b) The amended notice must identify the official records
722 book and page where the original notice of commencement is
723 recorded, and a copy of the amended notice must be served by the
724 owner upon the contractor and each lienor who serves notice
725 before or within 30 days after the date the amended notice is
726 recorded.
727 (6) Unless otherwise provided in the notice of commencement
728 or a new or amended notice of commencement, a notice of
729 commencement is not effectual in law or equity against a
730 conveyance, transfer, or mortgage of or lien on the real
731 property described in the notice, or against creditors or
732 subsequent purchasers for a valuable consideration, after 1 year
733 after the date of recording the notice of commencement.
734 (7) A lender must, prior to the disbursement of any
735 construction funds to the contractor, record the notice of
736 commencement in the clerk’s office as required by this section;
737 however, the lender is not required to post a certified copy of
738 the notice at the construction site. The posting of the notice
739 at the construction site remains the owner’s obligation. The
740 failure of a lender to record the notice of commencement as
741 required by this subsection renders the lender liable to the
742 owner for all damages sustained by the owner as a result of the
743 failure. Whenever a lender is required to record a notice of
744 commencement, the lender shall designate the lender, in addition
745 to others, to receive copies of notices to owner. This
746 subsection does not give any person other than the owner a claim
747 or right of action against a lender for failure to record a
748 notice of commencement.
749 Section 6. Section 713.135, Florida Statutes, is amended to
750 read:
751 713.135 Notice of commencement and applicability of lien.—
752 (1) When any person applies for a building permit, the
753 authority issuing such permit shall:
754 (a) Require the applicant to submit the signed and dated
755 general statement of an owner’s rights and responsibilities
756 under Florida’s Construction Lien Law provided in s. 713.015 for
757 any single-family or multifamily dwelling up to and including
758 four units. A building permit application may not be processed
759 unless the signed document is in the file.
760 (b)(a) Print on the face of each permit card in no less
761 than 14-point, capitalized, boldfaced type: “WARNING TO OWNER:
762 IF YOU FAIL YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT, YOU
763 MAY PAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR
764 PROPERTY. A NOTICE OF COMMENCEMENT, AND THE CONTRACTOR’S PAYMENT
765 BOND IF THE PROJECT IS BONDED, MUST BE RECORDED AND POSTED ON
766 THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO
767 OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
768 RECORDING YOUR NOTICE OF COMMENCEMENT.”
769 (c)(b) Make available to Provide the applicant and the
770 owner of the real property upon which improvements are to be
771 constructed copies of the general statement of an owner’s rights
772 and responsibilities under Florida’s with a printed statement
773 stating that the right, title, and interest of the person who
774 has contracted for the improvement may be subject to attachment
775 under the Construction Lien Law, as described in s. 713.015,
776 along with the attached statutory form. The issuing authority
777 may make the general statement and form available in printed
778 form or on the Internet or both. The Department of Business and
779 Professional Regulation shall furnish, for distribution, the
780 statement described in this paragraph, and the statement must be
781 a summary of the Construction Lien Law and must include an
782 explanation of the provisions of the Construction Lien Law
783 relating to the recording, and the posting of copies, of notices
784 of commencement and a statement encouraging the owner to record
785 a notice of commencement and post a copy of the notice of
786 commencement in accordance with s. 713.13. The statement must
787 also contain an explanation of the owner’s rights if a lienor
788 fails to furnish the owner with a notice as provided in s.
789 713.06(2) and an explanation of the owner’s rights as provided
790 in s. 713.22. The authority that issues the building permit must
791 obtain from the Department of Business and Professional
792 Regulation the statement required by this paragraph and must
793 mail, deliver by electronic mail or other electronic format or
794 facsimile, or personally deliver that statement to the owner or,
795 in a case in which the owner is required to personally appear to
796 obtain the permit, provide that statement to any owner making
797 improvements to real property consisting of a single or multiple
798 family dwelling up to and including four units. However, the
799 failure by the authorities to provide the summary does not
800 subject the issuing authority to liability.
801 (c) In addition to providing the owner with the statement
802 as required by paragraph (b), inform each applicant who is not
803 the person whose right, title, and interest is subject to
804 attachment that, as a condition to the issuance of a building
805 permit, the applicant must promise in good faith that the
806 statement will be delivered to the person whose property is
807 subject to attachment.
808 (d) Furnish to the applicant two or more copies of a form
809 of notice of commencement conforming with s. 713.13. If the
810 direct contract is greater than $2,500, the applicant shall file
811 with the issuing authority prior to the first inspection either
812 a certified copy of the recorded notice of commencement or a
813 notarized statement that the notice of commencement has been
814 filed for recording, along with a copy thereof. In the absence
815 of the filing of a certified copy of the recorded notice of
816 commencement, the issuing authority or a private provider
817 performing inspection services may not perform or approve
818 subsequent inspections until the applicant files by mail,
819 facsimile, hand delivery, or any other means such certified copy
820 with the issuing authority. The certified copy of the notice of
821 commencement must contain the name and address of the owner, the
822 name and address of the contractor, and the location or address
823 of the property being improved. The issuing authority shall
824 (d) Verify that the name and address of the owner, the name
825 of the contractor, and the location or address of the property
826 being improved which is contained in the certified copy of the
827 notice of commencement is consistent with the information in the
828 building permit application.
829 (e) Provide the recording information from the official
830 public records in which the notice of commencement and payment
831 bond, if any, are recorded to any person upon request. The
832 issuing authority shall provide the recording information on the
833 certified copy of the recorded notice of commencement to any
834 person upon request. This subsection does not require the
835 recording of a notice of commencement prior to the issuance of a
836 building permit. If a local government requires a separate
837 permit or inspection for installation of temporary electrical
838 service or other temporary utility service, land clearing, or
839 other preliminary site work, such permits may be issued and such
840 inspections may be conducted without providing the issuing
841 authority with a certified copy of a recorded notice of
842 commencement or a notarized statement regarding a recorded
843 notice of commencement. This subsection does not apply to a
844 direct contract to repair or replace an existing heating or air
845 conditioning system in an amount less than $7,500.
846 (f)(e) Not require that a notice of commencement be
847 recorded as a condition of the application for, or processing or
848 issuance of, a building permit. However, this paragraph does not
849 modify or waive the inspection requirements set forth in this
850 subsection.
851 (g) Not require that a notice of commencement be recorded
852 or provided for those projects described in s. 713.137(2).
853 (2) An issuing authority under subsection (1) is not liable
854 in any civil action for the failure of the person whose property
855 is subject to attachment to receive or to be delivered the
856 general statement of an owner’s rights and responsibilities
857 under Florida’s a printed statement stating that the right,
858 title, and interest of the person who has contracted for the
859 improvement may be subject to attachment under the Construction
860 Lien Law as provided in s. 713.015.
861 (3) An issuing authority under subsection (1) is not liable
862 in any civil action for the failure to verify that a certified
863 copy of the recorded notice of commencement has been filed in
864 accordance with this section.
865 (4) The several boards of county commissioners, municipal
866 councils, or other similar bodies may by ordinance or resolution
867 establish reasonable fees for furnishing, upon request, copies
868 of the forms and the printed statement provided in paragraph
869 (1)(a) paragraphs (1)(b) and (d) in an amount not to exceed $5
870 to be paid by the applicant for each permit in addition to all
871 other costs of the permit; however, no forms or statement need
872 be furnished, mailed, or otherwise provided to, nor may such
873 additional fee be obtained from, applicants for permits in those
874 cases in which the owner of a legal or equitable interest
875 (including that of ownership of stock of a corporate landowner)
876 of the real property to be improved is engaged in the business
877 of construction of buildings for sale to others and intends to
878 make the improvements authorized by the permit on the property
879 and upon completion will offer the improved real property for
880 sale.
881 (5) In addition to any other information required by the
882 authority issuing the permit, each building permit application
883 must contain:
884 (a) The name and address of the owner of the real property;
885 (b) The name and address of the contractor;
886 (c) A description sufficient to identify the real property
887 to be improved; and
888 (d) The number or identifying symbol assigned to the
889 building permit by the issuing authority, which number or symbol
890 must be affixed to the application by the issuing authority.
891 (6)(a) In addition to any other information required by the
892 authority issuing the permit, the building permit application
893 must be in substantially the following form:
894
895 Tax Folio No.........
896 BUILDING PERMIT APPLICATION
897
898 Owner’s Name....................................................
899 Owner’s Address.................................................
900 Fee Simple Titleholder’s Name (If other than owner).............
901 Fee Simple Titleholder’s Address (If other than owner)..........
902 City............................................................
903 State............ Zip............
904 Contractor’s Name...............................................
905 Contractor’s Address............................................
906 City............................................................
907 State............ Zip............
908 Job Name........................................................
909 Job Address.....................................................
910 City................ County............
911 Legal Description...............................................
912 Bonding Company.................................................
913 Bonding Company Address.........................................
914 City................ State............
915 Architect/Engineer’s Name.......................................
916 Architect/Engineer’s Address....................................
917 Mortgage Lender’s Name..........................................
918 Mortgage Lender’s Address.......................................
919
920 Application is hereby made to obtain a permit to do the
921 work and installations as indicated. I certify that no work or
922 installation has commenced prior to the issuance of a permit and
923 that all work will be performed to meet the standards of all
924 laws regulating construction in this jurisdiction. I understand
925 that a separate permit must be secured for ELECTRICAL WORK,
926 PLUMBING, SIGNS, WELLS, POOLS, FURNACES, BOILERS, HEATERS,
927 TANKS, and AIR CONDITIONERS, etc.
928
929 OWNER’S AFFIDAVIT: I certify that all the foregoing information
930 is accurate and that all work will be done in compliance with
931 all applicable laws regulating construction and zoning.
932
933 WARNING TO OWNER: IF YOU FAIL YOUR FAILURE TO RECORD A
934 NOTICE OF COMMENCEMENT, YOU MAY PAY RESULT IN YOUR
935 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A
936 NOTICE OF COMMENCEMENT, AND THE CONTRACTOR’S PAYMENT
937 BOND IF THE PROJECT IS BONDED, MUST BE RECORDED AND
938 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION.
939
940 IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
941 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR
942 RECORDING YOUR NOTICE OF COMMENCEMENT.
943
944 ...(Signature of Owner or Agent)...
945
946 ...(including contractor)...
947 STATE OF FLORIDA
948 COUNTY OF ....
949
950 Sworn to (or affirmed) and subscribed before me this ....
951 day of ...., ...(year)..., by ...(name of person making
952 statement)....
953
954 ...(Signature of Notary Public - State of Florida)...
955 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
956
957 Personally Known .... OR Produced Identification ....
958
959 Type of Identification Produced............
960 ...(Signature of Contractor)...
961
962 STATE OF FLORIDA
963 COUNTY OF ....
964
965 Sworn to (or affirmed) and subscribed before me this ....
966 day of ...., ...(year)..., by ......(name of person making
967 statement).......
968 ...(Signature of Notary Public - State of Florida)...
969 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
970
971 Personally Known .... OR Produced Identification ....
972
973 Type of Identification Produced............
974 (Certificate of Competency Holder)
975
976 Contractor’s State Certification or Registration No.....
977
978 Contractor’s Certificate of Competency No.........
979
980 APPLICATION APPROVED BY
981 ................Permit Officer
982 (b) Consistent with the requirements of paragraph (a), an
983 authority responsible for issuing building permits under this
984 section may accept a building permit application in an
985 electronic format, as prescribed by the authority. Building
986 permit applications submitted to the authority electronically
987 must contain the following additional statement in lieu of the
988 requirement in paragraph (a) that a signed, sworn, and notarized
989 signature of the owner or agent and the contractor be part of
990 the owner’s affidavit:
991
992 OWNER’S ELECTRONIC SUBMISSION STATEMENT: Under penalty of
993 perjury, I declare that all the information contained in this
994 building permit application is true and correct.
995 (c) An authority responsible for issuing building permit
996 applications which accepts building permit applications in an
997 electronic format shall provide public Internet access to the
998 electronic building permit applications in a searchable format.
999 (7) This section applies to every municipality and county
1000 in the state which now has or hereafter may have a system of
1001 issuing building permits for the construction of improvements or
1002 for the alteration or repair of improvements on or to real
1003 property located within the geographic limits of the issuing
1004 authority.
1005 (8) The Department of Business and Professional Regulation
1006 shall furnish, in a consumer-friendly location on its website,
1007 the general statement of an owner’s rights and responsibilities
1008 under Florida’s Construction Lien Law, as described in s.
1009 713.015, and the statutory forms for a notice of commencement,
1010 waiver and release of lien upon progress payment, waiver and
1011 release of lien upon final payment, request for sworn statement
1012 of account, and contractor’s final payment affidavit, in
1013 addition to any other consumer information relating to
1014 construction that the department believes is beneficial to
1015 consumers relating to licensing, insurance requirements, and
1016 unlicensed activity.
1017 Section 7. Section 713.137, Florida Statutes, is created to
1018 read:
1019 713.137 Prerequisites to inspection of improvements;
1020 exceptions.—
1021 (1) The authority issuing a building permit or a private
1022 provider performing inspection services may not inspect the real
1023 property being improved unless:
1024 (a) The following documents have been filed with the
1025 issuing authority:
1026 1.a. A certified copy of the recorded notice of
1027 commencement; or
1028 b. A notarized statement that the notice of commencement
1029 has been filed for recording, along with a copy of the notice.
1030 2. If the permit is for a commercial project:
1031 a. A copy of the contractor’s recorded payment bond; or
1032 b. A notarized statement of the contractor or owner stating
1033 that a payment bond was not required.
1034 3. A signed copy of the general statement of owner’s rights
1035 and responsibilities under Florida’s Construction Lien Law, if
1036 required by s. 713.015.
1037 (b) The information in the notice of commencement filed
1038 with the issuing authority is consistent with the building
1039 permit application, complete, and legible.
1040 (2) This section does not apply to inspections of the
1041 following improvements:
1042 (a) The installation of temporary electrical service or
1043 other temporary utility service, land clearing, or other
1044 preliminary site work.
1045 (b) Improvements pursuant to a direct contract in an amount
1046 of $5,000 or less.
1047 (c) The repair or replacement of a heating or air
1048 conditioning system pursuant to a direct contract in an amount
1049 of $7,500 or less.
1050 Section 8. Section 713.16, Florida Statutes, is amended to
1051 read:
1052 713.16 Demand for copy of contract and statements of
1053 account; form.—
1054 (1) A copy of the contract of a lienor or owner and a
1055 statement of the amount due or to become due if fixed or
1056 ascertainable thereon must be furnished by any party thereto,
1057 upon written demand of an owner or a lienor contracting with or
1058 employed by the other party to such contract. If the owner or
1059 lienor refuses or neglects to furnish such copy of the contract
1060 or such statement, or willfully and falsely states the amount
1061 due or to become due if fixed or ascertainable under such
1062 contract, any person who suffers any detriment thereby has a
1063 cause of action against the person refusing or neglecting to
1064 furnish the same or willfully and falsely stating the amount due
1065 or to become due for his or her damages sustained thereby. The
1066 information contained in such copy or statement furnished
1067 pursuant to such written demand is binding upon the owner or
1068 lienor furnishing it unless actual notice of any modification is
1069 given to the person demanding the copy or statement before such
1070 person acts in good faith in reliance on it. The person
1071 demanding such documents must pay for the reproduction thereof;
1072 and, if such person fails or refuses to do so, he or she is
1073 entitled only to inspect such documents at reasonable times and
1074 places.
1075 (2) The owner may serve in writing a demand of any lienor
1076 for a written statement under oath of his or her account showing
1077 the nature of the labor or services performed and to be
1078 performed, if any, the materials furnished, the materials to be
1079 furnished, if known, the amount paid on account to date, the
1080 amount due, and the amount to become due, if known, as of the
1081 date of the statement by the lienor. Any such demand to a lienor
1082 must be served on the lienor at the address and to the attention
1083 of any person who is designated to receive the demand in the
1084 notice to owner served by such lienor and must include a
1085 description of the project, including the names of the owner,
1086 the contractor, and the lienor’s customer, sufficient for the
1087 lienor to properly identify the account in question. The failure
1088 or refusal to furnish the statement does not deprive the lienor
1089 of his or her lien if the demand is not served at the address of
1090 the lienor or directed to the attention of the person designated
1091 to receive the demand in the notice to owner. The failure or
1092 refusal to furnish the statement under oath within 30 days after
1093 the demand, or the furnishing of a false or fraudulent
1094 statement, deprives the person so failing or refusing to furnish
1095 such statement of his or her lien. If the owner serves more than
1096 one demand for statement of account on a lienor and none of the
1097 information regarding the account has changed since the lienor’s
1098 last response to a demand, the failure or refusal to furnish
1099 such statement does not deprive the lienor of his or her lien.
1100 The negligent inclusion or omission of any information deprives
1101 the person of his or her lien to the extent the owner can
1102 demonstrate prejudice from such act or omission by the lienor.
1103 The failure to furnish a response to a demand for statement of
1104 account does not affect the validity of any claim of lien being
1105 enforced through a foreclosure case filed prior to the date the
1106 demand for statement is received by the lienor.
1107 (3) A request for sworn statement of account must be in
1108 substantially the following form:
1109 REQUEST FOR SWORN STATEMENT OF ACCOUNT
1110
1111 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED
1112 UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
1113 STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
1114
1115 To: ...(Lienor’s name and address)...
1116
1117 The undersigned hereby demands a written statement under oath of
1118 his or her account showing the nature of the labor or services
1119 performed and to be performed, if any, the materials furnished,
1120 the materials to be furnished, if known, the amount paid on
1121 account to date, the amount due, and the amount to become due,
1122 if known, as of the date of the statement for the improvement of
1123 real property identified as ......(property description).......
1124 Name of contractor: .............
1125 Name of the lienor’s customer (as specified in the lienor’s
1126 Notice to Owner, if such notice has been served): .............
1127 ...(signature and address of owner)...
1128 ......(date of request for sworn statement of account)......
1129 (4) When a contractor has furnished a payment bond pursuant
1130 to s. 713.23, he or she may, when an owner makes any payment to
1131 the contractor or directly to a lienor, serve a written demand
1132 on any other lienor for a written statement under oath of his or
1133 her account showing the nature of the labor or services
1134 performed and to be performed, if any, the materials furnished,
1135 the materials to be furnished, if known, the amount paid on
1136 account to date, the amount due, and the amount to become due,
1137 if known, as of the date of the statement by the lienor. Any
1138 such demand to a lienor must be served on the lienor at the
1139 address and to the attention of any person who is designated to
1140 receive the demand in the notice to contractor served by such
1141 lienor. The failure or refusal to furnish the statement does not
1142 deprive the lienor of his or her rights under the bond if the
1143 demand is not served at the address of the lienor or directed to
1144 the attention of the person designated to receive the demand in
1145 the notice to contractor or if the demand does not include a
1146 description of the project, including the names of the owner,
1147 the contractor, and the lienor’s customer as set forth in the
1148 lienor’s notice to contractor, sufficient for the lienor to
1149 properly identify the account in question. The failure to
1150 furnish the statement within 30 days after the demand, or the
1151 furnishing of a false or fraudulent statement, deprives the
1152 person who fails to furnish the statement, or who furnishes the
1153 false or fraudulent statement, of his or her rights under the
1154 bond. If the contractor serves more than one demand for
1155 statement of account on a lienor and none of the information
1156 regarding the account has changed since the lienor’s last
1157 response to a demand, the failure or refusal to furnish such
1158 statement does not deprive the lienor of his or her rights under
1159 the bond. The negligent inclusion or omission of any information
1160 deprives the person of his or her rights under the bond to the
1161 extent the contractor can demonstrate prejudice from such act or
1162 omission by the lienor. The failure to furnish a response to a
1163 demand for statement of account does not affect the validity of
1164 any claim on the bond being enforced in a lawsuit filed prior to
1165 the date the demand for statement of account is received by the
1166 lienor.
1167 (5)(a) Any lienor who submits or mails has recorded a claim
1168 of lien to the clerk for recording may make written demand on
1169 the owner for a written statement under oath showing:
1170 1. The amount of the direct contract under which the lien
1171 was recorded;
1172 2. The dates and amounts paid or to be paid by or on behalf
1173 of the owner for all improvements described in the direct
1174 contract;
1175 3. The reasonable estimated costs of completing the direct
1176 contract under which the lien was claimed pursuant to the scope
1177 of the direct contract; and
1178 4. If known, the actual cost of completion.
1179 (b) Any owner who does not provide the statement within 30
1180 days after demand, or who provides a false or fraudulent
1181 statement, is not a prevailing party for purposes of an award of
1182 attorney’s fees under s. 713.29. The written demand must include
1183 the following warning in conspicuous type in substantially the
1184 following form:
1185 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT
1186 WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL
1187 RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY
1188 ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING
1189 THIS STATEMENT.
1190 (6) Any written demand served on the owner shall include a
1191 description of the project, including the names of the
1192 contractor and the lienor’s customer as set forth in the
1193 lienor’s notice to owner, sufficient for the owner to properly
1194 identify the project in question.
1195 (7)(6) For purposes of this section, the term “information”
1196 means the nature and quantity of the labor, services, and
1197 materials furnished or to be furnished by a lienor and the
1198 amount paid, the amount due, and the amount to become due on the
1199 lienor’s account.
1200 Section 9. Section 713.18, Florida Statutes, is amended to
1201 read:
1202 713.18 Manner of serving notices and other instruments.—
1203 (1) Service of notices, claims of lien, affidavits,
1204 assignments, and other instruments permitted or required under
1205 this part, or copies thereof when so permitted or required,
1206 unless otherwise specifically provided in this part, must be
1207 made by one of the following methods:
1208 (a) By actual delivery to the person to be served; if a
1209 partnership, to one of the partners; if a corporation, to an
1210 officer, director, managing agent, or business agent; or, if a
1211 limited liability company, to a member or manager.
1212 (b) By sending the same by common carrier delivery service
1213 or registered, global express guaranteed, or certified mail,
1214 with postage prepaid, and or by overnight or second-day delivery
1215 with evidence of delivery, which may be in an electronic format.
1216 (c) If the method specified in paragraph (a) or paragraph
1217 (b) cannot be accomplished, By posting on the site of the
1218 improvement if service as provided by paragraph (a) or paragraph
1219 (b) cannot be accomplished premises.
1220 (2) Notwithstanding subsection (1), service of if a notice
1221 to owner, a notice to contractor under s. 713.23, or a
1222 preliminary notice under s. 255.05 is mailed by registered or
1223 certified mail with postage prepaid to the person to be served
1224 at any of the addresses set forth in subsection (3) within 40
1225 days after the date the lienor first furnishes labor, services,
1226 or materials, service of that notice is effective as of the date
1227 of mailing if:
1228 (a) The notice is mailed by registered, global express
1229 guaranteed, or certified mail, with postage prepaid, to the
1230 person to be served at any of the addresses set forth in
1231 subsection (3);
1232 (b) The notice is mailed within 40 days after the date the
1233 lienor first furnishes labor, services, or materials; and
1234 (c)1. The person who served the notice maintains a
1235 registered or certified mail log that shows the registered or
1236 certified mail number issued by the United States Postal
1237 Service, the name and address of the person served, and the date
1238 stamp of the United States Postal Service confirming the date of
1239 mailing; or if
1240 2. The person who served the notice maintains electronic
1241 tracking records generated through use of the United States
1242 Postal Service Confirm service or a similar service containing
1243 the postal tracking number, the name and address of the person
1244 served, and verification of the date of receipt by the United
1245 States Postal Service.
1246 (3)(a) Service of If an instrument served pursuant to this
1247 section is effective on the date of mailing if the instrument:
1248 1. Was sent to the last address shown in the notice of
1249 commencement or any amendment thereto or, in the absence of a
1250 notice of commencement, to the last address shown in the
1251 building permit application, or to the last known address of the
1252 person to be served; and, is not received, but
1253 2. Is returned as being “refused,” “moved, not
1254 forwardable,” or “unclaimed,” or is otherwise not delivered or
1255 deliverable through no fault of the person serving the item,
1256 then service is effective on the date the instrument was sent.
1257 (b) If the address information shown in the notice of
1258 commencement or any amendment to the notice, or in the absence
1259 of a notice of commencement, in the building permit application,
1260 is incomplete for purposes of mailing or delivery, the person
1261 serving the item may complete the address and properly format it
1262 according to United States Postal Service addressing standards
1263 using information obtained from the property appraiser or
1264 another public record or directory without affecting the
1265 validity of service under this section.
1266 (4) A notice served by a lienor on one owner or one partner
1267 of a partnership owning the real property If the real property
1268 is owned by more than one person or a partnership, a lienor may
1269 serve any notices or other papers under this part on any one of
1270 such owners or partners, and such notice is deemed notice to all
1271 owners and partners.
1272 Section 10. Section 713.22, Florida Statutes, is amended to
1273 read:
1274 713.22 Duration of lien.—
1275 (1) A No lien provided by this part may not shall continue
1276 for a longer period than 1 year after the claim of lien has been
1277 recorded or 1 year after the recording of an amended claim of
1278 lien that shows a later date of final furnishing of labor,
1279 services, or materials, unless within that time an action to
1280 enforce the lien is commenced in a court of competent
1281 jurisdiction. A lien that has been continued beyond the 1-year
1282 period The continuation of the lien effected by the commencement
1283 of an the action is shall not enforceable be good against
1284 creditors or subsequent purchasers for a valuable consideration
1285 and without notice, unless a notice of lis pendens is recorded.
1286 (2) An owner or the owner’s agent or attorney may elect to
1287 shorten the time prescribed in subsection (1) within which to
1288 commence an action to enforce any claim of lien or claim against
1289 a bond or other security under s. 713.23 or s. 713.24 by
1290 recording in the clerk’s office a notice in substantially the
1291 following form:
1292 NOTICE OF CONTEST OF LIEN
1293 To: ...(Name and address of lienor)...
1294 You are notified that the undersigned contests the claim of lien
1295 filed by you on ...., ...(year)..., and recorded in .... Book
1296 ...., Page ...., of the public records of .... County, Florida,
1297 and that the time within which you may file suit to enforce your
1298 lien is limited to 60 days from the date of service of this
1299 notice. This .... day of ...., ...(year).....
1300 Signed: ...(Owner or Attorney)...
1301
1302 The lien of any lienor upon whom such notice is served and who
1303 fails to institute a suit to enforce his or her lien within 60
1304 days after service of such notice shall be extinguished
1305 automatically. The clerk shall mail a copy of the notice of
1306 contest to the lien claimant at the address shown in the claim
1307 of lien or most recent amendment thereto, by certified or
1308 registered mail, return receipt requested, and shall certify to
1309 such service on the face of such notice and record the notice.
1310 Service shall be deemed complete upon mailing.
1311 Section 11. Paragraph (e) of subsection (1) and subsections
1312 (2) and (4) of section 713.23, Florida Statutes, are amended to
1313 read:
1314 713.23 Payment bond.—
1315 (1)
1316 (e) An No action for the labor or materials or supplies may
1317 not be instituted or prosecuted against the contractor or surety
1318 unless both notices have been given. An No action may not shall
1319 be instituted or prosecuted against the contractor or against
1320 the surety on the bond under this section after 1 year from the
1321 performance of the labor or completion of delivery of the
1322 materials and supplies. The time period for bringing an action
1323 against the contractor or surety on the bond shall be measured
1324 from the last day of furnishing labor, services, or materials by
1325 the lienor. The time period may and shall not be measured by
1326 other standards, such as the issuance of a certificate of
1327 occupancy or the issuance of a certificate of substantial
1328 completion. A contractor or the contractor’s agent or attorney
1329 may elect to shorten the prescribed time within which an action
1330 to enforce any claim against a payment bond provided under this
1331 section or s. 713.245 must may be commenced at any time after a
1332 notice of nonpayment, if required, has been served for the claim
1333 by recording in the clerk’s office a notice in substantially the
1334 following form:
1335 NOTICE OF CONTEST OF CLAIM
1336 AGAINST PAYMENT BOND
1337 To: ...(Name and address of lienor)...
1338 You are notified that the undersigned contests your notice
1339 of nonpayment, dated ...., ...., and served on the undersigned
1340 on ...., ...., and that the time within which you may file suit
1341 to enforce your claim is limited to 60 days from the date of
1342 service of this notice.
1343
1344 DATED on ...., .....
1345
1346 Signed: ...(Contractor or Attorney)...
1347
1348 The claim of any lienor upon whom the notice is served and who
1349 fails to institute a suit to enforce his or her claim against
1350 the payment bond within 60 days after service of the notice
1351 shall be extinguished automatically. The clerk shall mail a copy
1352 of the notice of contest to the lienor at the address shown in
1353 the notice of nonpayment or most recent amendment thereto, by
1354 certified or registered mail, return receipt requested, and
1355 shall certify to such service on the face of the notice and
1356 record the notice. Service is complete upon mailing.
1357 (2) The bond shall secure every lien under the direct
1358 contract accruing subsequent to its execution and delivery,
1359 except that of the contractor. Every claim of lien, except that
1360 of the contractor, filed subsequent to execution and delivery of
1361 the bond shall be transferred to it with the same effect as
1362 liens transferred under s. 713.24. Record notice of the transfer
1363 shall be effected by the contractor, or any person having an
1364 interest in the property against which the claim of lien has
1365 been asserted, by recording in the clerk’s office a notice in
1366 substantially the following form:
1367 NOTICE OF BOND
1368
1369 To ...(Name and Address of Lienor)...
1370
1371 You are notified that the claim of lien filed by you on ....,
1372 ...., and recorded in Official Records Book .... at page .... of
1373 the public records of .... County, Florida, is secured by a
1374 bond, a copy being attached.
1375
1376 Signed: ...(Name of person recording notice)...
1377
1378 The notice shall be verified. The clerk shall mail a copy of the
1379 notice to the lienor at the address shown in the claim of lien,
1380 or the most recent amendment to it; shall certify to the service
1381 on the face of the notice; and shall record the notice. The
1382 clerk shall receive the same fee as prescribed in s. 713.24 s.
1383 713.24(1) for certifying to a transfer of lien.
1384 (4) The provisions of s. 713.24(7) s. 713.24(3) shall apply
1385 to bonds under this section.
1386 Section 12. Section 713.24, Florida Statutes, is amended to
1387 read:
1388 713.24 Transfer of liens to security.—
1389 (1) A Any lien claimed under this part may be transferred,
1390 by a any person having an interest in the real property upon
1391 which the lien is imposed or the contract under which the lien
1392 is claimed, from such real property to other security by either:
1393 (a) Depositing in the clerk’s office a sum of money;, or
1394 (b) Filing in the clerk’s office a bond executed as surety
1395 by a surety insurer licensed to do business in this state.,
1396 (2) The security must either to be in an amount equal: to
1397 (a) The amount demanded in the such claim of lien;, plus
1398 (b) Interest on the claim thereon at the legal rate for 3
1399 years, plus $1,000 or 25 percent of the amount demanded in the
1400 claim of lien, whichever is greater, to apply on any attorney’s
1401 fees and court costs that may be taxed in any proceeding to
1402 enforce the said lien.
1403 (3) The security Such deposit or bond shall be conditioned
1404 to pay any judgment or decree that which may be rendered for the
1405 satisfaction of the lien for which such claim of lien was
1406 recorded.
1407 (4) A Upon making such deposit or filing such bond, the
1408 clerk who receives other security for a lien:
1409 (a) Shall make and record a certificate showing the
1410 transfer of the lien from the real property to the security. The
1411 clerk and shall serve mail a copy of the certificate and a copy
1412 of the bond, if the lien was transferred to a bond, on thereof
1413 by registered or certified mail to the lienor named in the claim
1414 of lien so transferred, at the address stated in the claim
1415 therein. When Upon filing the certificate of transfer is
1416 recorded, the real property is shall thereupon be released from
1417 the lien claimed, and the such lien is shall be transferred to
1418 the other said security.
1419 (b) May collect a service charge of no more than $20 for
1420 making and serving the certificate. The clerk may collect an
1421 additional charge of no more than $10 for each additional lien
1422 transferred to the security. The clerk shall receive the
1423 statutory service charges as prescribed in s. 28.24 for
1424 recording the certificate and approving the bond.
1425 (5) In the absence of allegations of privity between the
1426 lienor and the owner, and subject to any order of the court
1427 increasing the amount required for the lien transfer deposit or
1428 bond, no other judgment or decree to pay money may be entered by
1429 the court against the owner. The clerk shall be entitled to a
1430 service charge for making and serving the certificate, in the
1431 amount of up to $20. If the transaction involves the transfer of
1432 multiple liens, an additional charge of up to $10 for each
1433 additional lien shall be charged. For recording the certificate
1434 and approving the bond, the clerk shall receive her or his usual
1435 statutory service charges as prescribed in s. 28.24. Any number
1436 of liens may be transferred to one such security.
1437 (6)(2) Any excess of the security over the aggregate amount
1438 of any judgments or decrees rendered plus costs actually taxed
1439 shall be repaid to the party filing the same or her or his
1440 successor in interest. Any deposit of money shall be considered
1441 as paid into court and is shall be subject to the provisions of
1442 law relative to payments of money into court and the disposition
1443 of same.
1444 (7)(3) Any party having an interest in such security or the
1445 property from which the lien was transferred may at any time,
1446 and any number of times, file a complaint in chancery in the
1447 circuit court of the county where such security is deposited, or
1448 file a motion in a pending action to enforce a lien, for an
1449 order to require additional security, reduction of security,
1450 change or substitution of sureties, payment of discharge
1451 thereof, or any other matter affecting the said security. If the
1452 court finds that the amount of the deposit or bond in excess of
1453 the amount claimed in the claim of lien is insufficient to pay
1454 the lienor’s attorney’s fees and court costs incurred in the
1455 action to enforce the lien, the court must increase the amount
1456 of the cash deposit or lien transfer bond. Nothing in This
1457 section does not shall be construed to vest exclusive
1458 jurisdiction in the circuit courts over transfer bond claims for
1459 nonpayment of an amount within the monetary jurisdiction of the
1460 county courts.
1461 (8)(4) If a proceeding to enforce a transferred lien is not
1462 commenced within the time specified in s. 713.22 or if it
1463 appears that the transferred lien has been satisfied of record,
1464 the clerk shall return the said security upon request of the
1465 person depositing or filing the same, or the insurer. If a
1466 proceeding to enforce a lien is commenced in a court of
1467 competent jurisdiction within the time specified in s. 713.22
1468 and, during such proceeding, the lien is transferred pursuant to
1469 this section or s. 713.13(1)(e), an action commenced within 1
1470 year after the transfer, unless otherwise shortened by operation
1471 of law, in the same county or circuit court to recover against
1472 the security shall be deemed to have been brought as of the date
1473 of filing the action to enforce the lien, and the court has
1474 shall have jurisdiction over the action.
1475 Section 13. This act shall take effect October 1, 2010.