Florida Senate - 2010 CS for CS for CS for SB 1048
By the Committees on General Government Appropriations;
Judiciary; and Regulated Industries; and Senator Baker
601-04795-10 20101048c3
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.
27 713.13, F.S.; revising the form of the notice of
28 commencement; requiring the posting of a payment bond
29 on a job site; amending s. 713.135, F.S.; revising the
30 warning to the owner printed on certain permit cards;
31 deleting a requirement relating to filing a notice of
32 commencement before certain inspections; revising the
33 warning to the owner provided on a building permit
34 form; creating s. 713.137, F.S.; prohibiting the
35 authority issuing a building permit or a private
36 provider performing inspection services from
37 inspecting an improvement until certain documents have
38 been filed and the information in the notice of
39 commencement meets certain standards; providing
40 exceptions; amending s. 713.16, F.S.; revising
41 requirements for demands for a copy of a construction
42 contract and a statement of account; authorizing a
43 lienor who submits or mails a claim of lien to the
44 clerk for recording to make certain demands to an
45 owner for certain written statements; providing
46 requirements for such written demands; amending s.
47 713.18, F.S.; providing additional methods by which
48 certain items may be served by mail; specifying the
49 information required on certain written instruments
50 under certain circumstances; amending s. 713.22, F.S.;
51 requiring that the clerk of court serve a notice of
52 contest of lien; amending s. 713.23, F.S.; requiring
53 that the clerk of court mail a notice of contest of
54 nonpayment by certified or registered mail; conforming
55 cross-references; amending s. 713.24, F.S.; requiring
56 that the clerk of court mail, by certified or
57 registered mail, a copy of the certificate showing the
58 transfer of a lien and a copy of the security if the
59 lien is transferred to a security; authorizing a clerk
60 to collect certain service charges under certain
61 circumstances; providing an effective date.
62
63 Be It Enacted by the Legislature of the State of Florida:
64
65 Section 1. Subsection (1) and paragraph (a) of subsection
66 (2) of section 255.05, Florida Statutes, are amended to read:
67 255.05 Bond of contractor constructing public buildings;
68 form; action by materialmen.—
69 (1)(a) Any person entering into a formal contract with the
70 state or any county, municipality city, or political subdivision
71 thereof, or other public authority or private entity, for the
72 construction of a public building, for the prosecution and
73 completion of a public work, or for repairs upon a public
74 building or public work shall be required, before commencing the
75 work or before recommencing the work after a default or
76 abandonment, to execute and, deliver to the public owner, and
77 record in the public records of the county where the improvement
78 is located, a payment and performance bond with a surety insurer
79 authorized to do business in this state as surety.
80 (a) A public entity may not require a contractor to secure
81 a surety bond under this section from a specific agent or
82 bonding company.
83 (b) The bond must state on its front page: the name,
84 principal business address, and phone number of the contractor,
85 the surety, the owner of the property being improved, and, if
86 different from the owner, the contracting public entity; the
87 contract number assigned by the contracting public entity; the
88 bond number assigned by the surety; and a description of the
89 project sufficient to identify it, such as a legal description
90 or the street address of the property being improved, and a
91 general description of the improvement.
92 (c) Such bond shall be conditioned upon the contractor’s
93 performance of the construction work in the time and manner
94 prescribed in the contract and promptly making payments to all
95 persons defined in s. 713.01 who furnish labor, services, or
96 materials for the prosecution of the work provided for in the
97 contract.
98 (d) The contractor shall record the payment bond upon
99 issuance in the official records of the county in which the
100 improvement will be located.
101 (e)1. The issuing authority for the building permit, or a
102 private provider performing inspection services, may not inspect
103 the property being improved until:
104 a. The issuing authority has a copy of the contractor’s
105 recorded payment bond on file; or
106 b. The contracting public entity has filed with the issuing
107 authority a notarized statement stating that the contract is
108 exempt from the requirement for a payment bond as provided in
109 this section.
110 2. This paragraph does not apply to inspections for the
111 installation of temporary electrical service or other temporary
112 utility service, land clearing, or other preliminary site work.
113 (f) Any claimant may apply to the governmental entity
114 having charge of the work for copies of the contract and bond
115 and shall thereupon be furnished with a certified copy of the
116 contract and bond. The claimant has shall have a right of action
117 against the contractor and surety for the amount due him or her,
118 including unpaid finance charges due under the claimant’s
119 contract. Such action shall not involve the public authority in
120 any expense.
121 (g)1. A payment and performance bond is not required for a
122 contract with the state for $100,000 or less. When such work is
123 done for the state and the contract is for $100,000 or less, no
124 payment and performance bond shall be required.
125 2. At the discretion of The official or board awarding a
126 such contract when such work is done for a any county,
127 municipality city, political subdivision, or public authority
128 may exempt a contract, any person entering into such a contract
129 which is for $200,000 or less from the requirement for a may be
130 exempted from executing the payment and performance bond.
131 3. When such work is done for the state, The Secretary of
132 Management Services may delegate to a state agency agencies the
133 authority to exempt any person entering into such a contract for
134 amounting to more than $100,000 but less than $200,000 from the
135 requirement for a executing the payment and performance bond. If
136 In the event such exemption is granted, the officer or officials
137 are shall not be personally liable to persons suffering loss
138 because of granting such exemption. The Department of Management
139 Services shall maintain information on the number of requests by
140 state agencies for delegation of authority to waive the bond
141 requirements by agency and project number and whether any
142 request for delegation was denied and the justification for the
143 denial.
144 (h) Any provision in a payment bond furnished for public
145 work contracts as provided by this subsection which restricts
146 the classes of persons as defined in s. 713.01 protected by the
147 bond or the venue of any proceeding relating to such bond is
148 unenforceable.
149 (i)(b) The Department of Management Services shall adopt
150 rules with respect to all contracts for $200,000 or less, to
151 provide:
152 1. Procedures for retaining up to 10 percent of each
153 request for payment submitted by a contractor and procedures for
154 determining disbursements from the amount retained on a pro rata
155 basis to laborers, materialmen, and subcontractors, as defined
156 in s. 713.01.
157 2. Procedures for requiring certification from laborers,
158 materialmen, and subcontractors, as defined in s. 713.01, prior
159 to final payment to the contractor, that such laborers,
160 materialmen, and subcontractors have no claims against the
161 contractor resulting from the completion of the work provided
162 for in the contract.
163
164 The state is shall not be held liable to any laborer,
165 materialman, or subcontractor for any amounts greater than the
166 pro rata share as determined under this section.
167 (j)(c)1. The amount of the bond shall equal the contract
168 price, except that for a contract in excess of $250 million, if
169 the state, county, municipality, political subdivision, or other
170 public entity finds that a bond in the amount of the contract
171 price is not reasonably available, the public owner shall set
172 the amount of the bond at the largest amount reasonably
173 available, but not less than $250 million.
174 2. For construction-management or design-build contracts,
175 if the public owner does not include in the bond amount the cost
176 of design or other nonconstruction services, the bond may not be
177 conditioned on performance of such services or payment to
178 persons furnishing such services. Notwithstanding paragraph (h)
179 (a), such a bond may exclude persons furnishing such services
180 from the classes of persons protected by the bond.
181 (2)(a)1. If a claimant is no longer furnishing labor,
182 services, or materials on a project, a contractor or the
183 contractor’s agent or attorney may elect to shorten the
184 prescribed time in this paragraph within which an action to
185 enforce any claim against a payment bond must provided pursuant
186 to this section may be commenced by recording in the clerk’s
187 office a notice in substantially the following form:
188 NOTICE OF CONTEST OF CLAIM
189 AGAINST PAYMENT BOND
190
191 To: ...(Name and address of claimant)...
192
193 You are notified that the undersigned contests your notice
194 of nonpayment, dated ............, ........, and served on the
195 undersigned on ............, ........, and that the time within
196 which you may file suit to enforce your claim is limited to 60
197 days after the date of service of this notice.
198
199 DATED on ............, .........
200
201 Signed:...(Contractor or Attorney)...
202
203 The claim of any claimant upon whom such notice is served and
204 who fails to institute a suit to enforce his or her claim
205 against the payment bond within 60 days after service of such
206 notice shall be extinguished automatically. The clerk shall mail
207 a copy of the notice of contest to the claimant at the address
208 shown in the notice of nonpayment or most recent amendment
209 thereto by certified or registered mail, return receipt
210 requested, and shall certify to such service on the face of such
211 notice and record the notice. Service is complete upon mailing.
212 2. A claimant, except a laborer, who is not in privity with
213 the contractor shall, before commencing or not later than 45
214 days after commencing to furnish labor, services, or materials
215 for the prosecution of the work, furnish the contractor with a
216 written notice that he or she intends to look to the bond for
217 protection. A claimant who is not in privity with the contractor
218 and who has not received payment for his or her labor, services,
219 or materials shall deliver to the contractor and to the surety
220 written notice of the performance of the labor or delivery of
221 the materials or supplies and of the nonpayment. The notice of
222 nonpayment may be served at any time during the progress of the
223 work or thereafter but not before 45 days after the first
224 furnishing of labor, services, or materials, and not later than
225 90 days after the final furnishing of the labor, services, or
226 materials by the claimant or, with respect to rental equipment,
227 not later than 90 days after the date that the rental equipment
228 was last on the job site available for use. Any notice of
229 nonpayment served by a claimant who is not in privity with the
230 contractor which includes sums for retainage must specify the
231 portion of the amount claimed for retainage. An No action for
232 the labor, materials, or supplies may not be instituted against
233 the contractor or the surety unless both notices have been
234 given. Notices required or permitted under this section may be
235 served in accordance with s. 713.18. A claimant may not waive in
236 advance his or her right to bring an action under the bond
237 against the surety. In any action brought to enforce a claim
238 against a payment bond under this section, the prevailing party
239 is entitled to recover a reasonable fee for the services of his
240 or her attorney for trial and appeal or for arbitration, in an
241 amount to be determined by the court, and the which fee must be
242 taxed as part of the prevailing party’s costs, as allowed in
243 equitable actions. The time periods for service of a notice of
244 nonpayment or for bringing an action against a contractor or a
245 surety shall be measured from the last day of furnishing labor,
246 services, or materials by the claimant and shall not be measured
247 by other standards, such as the issuance of a certificate of
248 occupancy or the issuance of a certificate of substantial
249 completion.
250 Section 2. Section 713.015, Florida Statutes, is amended to
251 read:
252 713.015 General statement of owner’s rights and
253 responsibilities Mandatory provisions for direct contracts.—
254 (1) For any direct contract greater than $2,500 between an
255 owner and a contractor, related to improvements to real property
256 consisting of single or multiple family dwellings up to and
257 including four units, the contractor must provide the owner with
258 a copy of the general statement of owner’s rights and
259 responsibilities under Florida’s Construction Lien Law as set
260 forth in subsection (2), which must be contain the following
261 notice provision printed in no less than 12-point, capitalized,
262 boldfaced type on the front page of the contract or on a
263 separate page, signed by the owner and dated, and submitted with
264 the original building permit application pursuant to s.
265 713.135.:
266
267 ACCORDING TO FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001
268 713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR
269 PROVIDE MATERIALS AND SERVICES AND ARE NOT PAID IN FULL HAVE A
270 RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY.
271 THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR CONTRACTOR
272 OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB
273 SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THOSE PEOPLE WHO ARE OWED
274 MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE
275 ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR
276 CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR
277 PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE
278 SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER
279 SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED
280 TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN THIS
281 CONTRACT THAT BEFORE ANY PAYMENT IS MADE, YOUR CONTRACTOR IS
282 REQUIRED TO PROVIDE YOU WITH A WRITTEN RELEASE OF LIEN FROM ANY
283 PERSON OR COMPANY THAT HAS PROVIDED TO YOU A “NOTICE TO OWNER.”
284 FLORIDA’S CONSTRUCTION LIEN LAW IS COMPLEX, AND IT IS
285 RECOMMENDED THAT YOU CONSULT AN ATTORNEY.
286 (2) The general statement of an owner’s rights and
287 responsibilities under Florida’s Construction Lien Law must be
288 in substantially the following form, must include the
289 information contained in the following form, and must include a
290 copy of a notice of commencement as provided in s. 713.13(1).
291
292 GENERAL STATEMENT OF OWNER’S RIGHTS AND RESPONSIBILITIES
293 UNDER FLORIDA’S CONSTRUCTION LIEN LAW
294 (Required by Section 713.015, Florida Statutes)
295
296 ABOUT THIS DOCUMENT.—Florida law requires your contractor
297 to provide you with this document when you are contracting to
298 make improvements to real property. It is critical that you have
299 some understanding of Florida’s construction lien and payment
300 laws and take appropriate steps to protect your investment and
301 fulfill your obligations to those who provide labor, services or
302 materials for your project.
303
304 You must acknowledge that you have received and read this
305 document by signing on the signature page. The original signed
306 document must be delivered to the building permit authority,
307 along with the building permit application for your project.
308 Your building permit application will not be processed unless
309 this signed document is in the file. You need to retain a copy
310 of this document so that you can follow the procedures described
311 in the document and identify the proper statutory forms as you
312 proceed with your construction project.
313
314 IT IS ALWAYS RECOMMENDED THAT YOU CONSULT LEGAL ADVICE
315 BEFORE UNDERTAKING REAL PROPERTY IMPROVEMENTS. IF YOU HAVE
316 QUESTIONS REGARDING THE INFORMATION CONTAINED IN THIS DOCUMENT,
317 SEEK THE ADVICE OF A FLORIDA CONSTRUCTION LAW ATTORNEY.
318
319 THE FLORIDA CONSTRUCTION LIEN LAW.—Part I of chapter 713,
320 Florida Statutes (F.S.), governs private construction projects
321 in this state. The complete text of this law can be found at
322 www.leg.state.fl.us. This statement is a guide and does not take
323 precedence over the language of Florida’s Construction Lien Law.
324
325 Under this law, those who work on your property or provide
326 materials and services and who are not paid in full have a right
327 to enforce their claim for payment against your property. This
328 claim is known as a construction lien. If your contractor or a
329 subcontractor fails to pay subcontractors, sub-subcontractors,
330 or material suppliers, those people who are owed money may look
331 to your property for payment even if you have already paid your
332 contractor in full. If you fail to pay your contractor, your
333 contractor may also have a lien on your property. This means
334 that if a valid lien is filed, your property could be sold
335 against your will to pay for labor, services, or materials that
336 your contractor or a subcontractor may have failed to pay.
337
338 FLORIDA LAW ALSO PROVIDES PROCEDURES TO PROTECT OWNERS FROM
339 PAYING MORE THAN THE AMOUNT OF THEIR CONTRACT. IF YOU FOLLOW THE
340 FOUR STEPS SET FORTH BELOW, YOU WILL PROTECT YOURSELF FROM VALID
341 LIENS AGAINST YOUR PROPERTY, AND FROM PAYING TWICE FOR LABOR,
342 SERVICES, OR MATERIALS FURNISHED FOR YOUR PROJECT.
343
344 STEP 1 — THE NOTICE OF COMMENCEMENT.—An owner is required
345 by law to complete, sign, and record in the public records a
346 Notice of Commencement for all direct contracts that exceed
347 $2,500. The information provided in the recorded Notice of
348 Commencement is relied upon by all parties who provide labor,
349 services or materials for your project. A copy of the statutory
350 Notice of Commencement form required by s. 713.13, Florida
351 Statutes, is attached to this document.
352
353 If a lender is financing your project, the lender will
354 assist you in completing the Notice of Commencement and is
355 responsible for recording it in the public records. It is
356 critical that your Notice of Commencement be recorded after any
357 construction loan or mortgage documents are recorded. If you are
358 not using a lender, preparing and recording the Notice of
359 Commencement is your responsibility. The Notice of Commencement
360 must be recorded before commencing construction and posted on
361 your jobsite. For most projects, a copy of the recorded Notice
362 of Commencement must be submitted to the building permit
363 authority prior to the first building inspection.
364
365 STEP 2 — MONITOR THE DOCUMENTS AND NOTICES YOU RECEIVE.
366 Pick up your certified mail. Most lien notices are served by
367 certified mail and you need to know who is providing labor,
368 services, or materials for your project. The law provides that
369 any properly addressed notices that are returned to the sender
370 through no fault of the sender are considered served on the date
371 sent, so failing to claim certified mail only hurts you.
372
373 If you expect to be absent for periods of time during your
374 project, you should have an attorney or other agent in a
375 position of trust who understands the law handle these details
376 for you. Make sure someone is receiving your mail and taking
377 steps to obtain the necessary lien releases before making
378 payments to your contractor. If you receive anything that you do
379 not understand, seek the assistance of an experienced
380 construction law attorney.
381
382 STEP 3 — OBTAIN SIGNED LIEN WAIVERS EACH TIME YOU MAKE A
383 PAYMENT TO YOUR CONTRACTOR.—Each time you pay your contractor
384 you should obtain a Waiver and Release of Lien form from the
385 contractor AND from anyone who has served you with a Notice to
386 Owner. Make sure that each release waives lien rights against
387 your project for work or materials furnished through the date of
388 the work or materials that your payment covers. This date is
389 probably not the date you are making the payment, but a date
390 prior to the payment date through which labor, services, or
391 materials have been billed.
392
393 UNDER FLORIDA LAW, YOU HAVE THE RIGHT TO WITHHOLD PAYMENTS
394 OWED TO THE CONTRACTOR UNTIL YOU HAVE BEEN PROVIDED WITH A
395 WRITTEN WAIVER AND RELEASE OF LIEN UPON PROGRESS PAYMENT OR A
396 WRITTEN WAIVER AND RELEASE OF LIEN UPON FINAL PAYMENT SHOWING
397 THAT THE LIENOR’S CLAIM FOR PAYMENT HAS BEEN PAID.
398
399 There are two statutory Waiver and Release of Lien forms.
400 The signed Waiver and Release of Lien Upon Progress Payment
401 should be provided to you by a contractor, subcontractor, or
402 material supplier each time you make a progress payment to your
403 contractor. The signed Waiver and Release of Lien Upon Final
404 Payment should be submitted by your contractor, a subcontractor,
405 or material supplier when they are finished furnishing all work
406 or materials for your project and have received final payment.
407 Once you receive a final waiver from a contractor,
408 subcontractor, or material supplier, you should not need another
409 waiver unless they are hired to do additional work.
410
411 STEP 4 — OBTAIN A CONTRACTOR’S FINAL PAYMENT AFFIDAVIT
412 BEFORE YOU MAKE FINAL PAYMENT TO YOUR CONTRACTOR.—In addition to
413 obtaining Final Waiver and Release of Lien forms from the
414 contractor and anyone who has served you with a Notice to Owner,
415 you should obtain a Contractor’s Final Payment Affidavit before
416 you make final payment to your contractor. This sworn affidavit
417 should reflect that everyone who supplied labor, services, or
418 materials on your project has been paid in full or should list
419 those subcontractors and suppliers who are still owed money.
420 Make sure that anyone listed as not being paid in full is paid
421 before making final payment to your contractor. You have a right
422 to rely on the information contained in the sworn affidavit when
423 you make final payment to your contractor with respect to any
424 lienor who has not served a Notice to Owner. If a lienor has
425 served you with a Notice to Owner, you should obtain a Waiver
426 and Release of Lien Upon Final Payment from that lienor.
427
428 OWNER’S ACKNOWLEDGMENT AND RECEIPT
429
430 The undersigned owner(s) of Florida real property hereby
431 acknowledge that they are preparing to enter into a contract
432 with _____________________________________________for the
433 construction of real property improvements to the following
434 described property (insert address or legal description):
435 _________________________________________
436 _________________________________________
437 ..(Signature of Property Owner)......(Date)...
438 ...(Signature of Property Owner)......(Date)...
439
440 Attached Statutory Form: Notice of Commencement
441 requirements for contractors can be obtained online at
442 www.myflorida.com/dbpr/pro/cilb.
443 (2)(a) If the contract is written, the notice must be in
444 the contract document. If the contract is oral or implied, the
445 notice must be provided in a document referencing the contract.
446 (3)(b) The failure to provide such written notice does not
447 bar the enforcement of a lien against a person who has not been
448 adversely affected.
449 (4)(c) This section may not be construed to adversely
450 affect the lien and bond rights of lienors who are not in
451 privity with the owner. This section does not apply when the
452 owner is a contractor licensed under chapter 489 or is a person
453 who created parcels or offers parcels for sale or lease in the
454 ordinary course of business.
455 Section 3. Paragraph (c) of subsection (2) of section
456 713.06, Florida Statutes, is amended to read:
457 713.06 Liens of persons not in privity; proper payments.—
458 (2)
459 (c) The notice may be in substantially the following form
460 and must include the information and the warning contained in
461 the following form:
462
463 WARNING! FLORIDA’S CONSTRUCTION LIEN LAW ALLOWS SOME
464 UNPAID CONTRACTORS, SUBCONTRACTORS, AND MATERIAL
465 SUPPLIERS TO FILE LIENS AGAINST YOUR PROPERTY EVEN IF
466 YOU HAVE MADE PAYMENT IN FULL.
467
468 UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID
469 MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING
470 TWICE.
471 TO PROTECT YOURSELF, EACH TIME YOU MAKE A PAYMENT TO THE
472 CONTRACTOR ASK YOUR CONTRACTOR TO PROVIDE YOU WITH A WRITTEN
473 WAIVER AND RELEASE OF LIEN FROM US. FOR ADDITIONAL INFORMATION,
474 REFER TO THE GENERAL STATEMENT OF OWNER’S RIGHTS AND
475 RESPONSIBILITIES WHICH WAS PROVIDED TO YOU BY OUR CONTRACTOR AT
476 THE BEGINNING OF YOUR CONSTRUCTION PROJECT. AVOID A LIEN AND
477 PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM US EVERY
478 TIME YOU PAY YOUR CONTRACTOR.
479 NOTICE TO OWNER
480
481 To ...(Owner’s name and address)...
482
483 The undersigned hereby informs you that he or she has furnished
484 or is furnishing services or materials as follows:
485 ...(General description of services or materials)... for the
486 improvement of the real property identified as ...(property
487 description)... under an order given by.............
488
489 Florida law prescribes the serving of this notice and restricts
490 your right to make payments under your contract in accordance
491 with Section 713.06, Florida Statutes.
492 IMPORTANT INFORMATION FOR
493 YOUR PROTECTION
494
495 Under Florida’s laws, those who work on your property or
496 provide materials and are not paid have a right to enforce their
497 claim for payment against your property. This claim is known as
498 a construction lien.
499 If your contractor fails to pay subcontractors or material
500 suppliers or neglects to make other legally required payments,
501 the people who are owed money may look to your property for
502 payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.
503
504 PROTECT YOURSELF:
505 —RECOGNIZE that this Notice to Owner may result in a lien
506 against your property unless all those supplying a Notice to
507 Owner have been paid.
508 —LEARN more about the Construction Lien Law, Chapter 713,
509 Part I, Florida Statutes, and the meaning of this notice by
510 contacting an attorney or the Florida Department of Business and
511 Professional Regulation.
512 ...(Lienor’s Signature)...
513 ...(Lienor’s Name)...
514 ...(Lienor’s Address)...
515
516 Copies to: ...(Those persons listed in Section 713.06(2)(a) and
517 (b), Florida Statutes)...
518 The form may be combined with a notice to contractor given under
519 s. 255.05 or s. 713.23 and, if so, may be entitled “NOTICE TO
520 OWNER/NOTICE TO CONTRACTOR.”
521 Section 4. Section 713.13, Florida Statutes, is amended to
522 read:
523 713.13 Notice of commencement.—
524 (1)(a) Except for an improvement that is exempt pursuant to
525 s. 713.02(5), an owner or the owner’s authorized agent before
526 actually commencing to improve any real property, or
527 recommencing completion of any improvement after default or
528 abandonment, whether or not a project has a payment bond
529 complying with s. 713.23, shall record a notice of commencement
530 in the clerk’s office and forthwith post either a certified copy
531 thereof or a notarized statement that the notice of commencement
532 has been filed for recording along with a copy thereof. The
533 notice of commencement shall contain the following information:
534 1. A description sufficient for identification of the real
535 property to be improved. The description should include the
536 legal description of the property and also should include the
537 street address and tax folio number of the property if available
538 or, if there is no street address available, such additional
539 information as will describe the physical location of the real
540 property to be improved.
541 2. A general description of the improvement.
542 3. The name and address of the owner, the owner’s interest
543 in the site of the improvement, and the name and address of the
544 fee simple titleholder, if other than such owner.
545 4. The name and address of the contractor.
546 5. The name and address of the surety on the payment bond
547 under s. 713.23, if any, and the amount of such bond.
548 6. The name and address of any person making a loan for the
549 construction of the improvements.
550 7. The name and address within the state of a person other
551 than himself or herself who may be designated by the owner as
552 the person upon whom notices or other documents may be served
553 under this part; and service upon the person so designated
554 constitutes service upon the owner.
555 (b) The owner, at his or her option, may designate a person
556 in addition to himself or herself to receive a copy of the
557 lienor’s notice as provided in s. 713.06(2)(b), and if he or she
558 does so, the name and address of such person must be included in
559 the notice of commencement.
560 (c) If the contract between the owner and a contractor
561 named in the notice of commencement expresses a period of time
562 for completion for the construction of the improvement greater
563 than 1 year, the notice of commencement must state that it is
564 effective for a period of 1 year plus any additional period of
565 time. Any payments made by the owner after the expiration of the
566 notice of commencement are considered improper payments.
567 (d) A notice of commencement must be in substantially the
568 following form:
569
570 Permit No..... Tax Folio No.....
571 NOTICE OF COMMENCEMENT
572 State of....
573 County of....
574
575 The undersigned hereby gives notice that improvement will be
576 made to certain real property, and in accordance with Chapter
577 713, Florida Statutes, the following information is provided in
578 this Notice of Commencement.
579 1. Description of property: ...(legal description of the
580 property, and street address if available)....
581 2. General description of improvement:.....
582 3. Owner information:.....
583 a. Name and address:.....
584 b. Interest in property:.....
585 c. Name and address of fee simple titleholder (if other
586 than Owner):.....
587 4.a. Contractor: ...(name and address)....
588 b. Contractor’s phone number:.....
589 5. Surety...(a copy of the payment bond is attached, if the
590 project is bonded....
591 a. Name and address:.....
592 b. Phone number:.....
593 c. Amount of bond: $.....
594 6.a. Lender: ...(name and address)....
595 b. Lender’s phone number:.....
596 7.a. Persons within the State of Florida designated by
597 Owner upon whom notices or other documents may be served as
598 provided by Section 713.13(1)(a)7., Florida Statutes: ...(name
599 and address)....
600 b. Phone numbers of designated persons:.....
601 8.a. In addition to himself or herself, Owner designates
602 ............ of ............ to receive a copy of the Lienor’s
603 Notice as provided in Section 713.13(1)(b), Florida Statutes.
604 b. Phone number of person or entity designated by
605 owner:.....
606 9. Expiration date of notice of commencement (the
607 expiration date is 1 year from the date of recording unless a
608 later different date is specified).....
609
610 WARNING TO OWNER: IF THIS NOTICE OF COMMENCEMENT WILL EXPIRE
611 BEFORE ALL WORK IS COMPLETED AND FINAL PAYMENT IS MADE, THE
612 EXPIRATION DATE MUST BE EXTENDED. ANY PAYMENTS MADE BY THE OWNER
613 AFTER THE EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE
614 CONSIDERED IMPROPER PAYMENTS UNDER CHAPTER 713, PART I, SECTION
615 713.13, FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING TWICE
616 FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST
617 BE RECORDED AND POSTED ON THE JOB SITE BEFORE THE FIRST
618 INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
619 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR
620 NOTICE OF COMMENCEMENT.
621
622 Under penalty of perjury, I declare that I have read the
623 foregoing notice of commencement and that the facts stated
624 therein are true to the best of my knowledge and belief.
625
626 ...(Signature of Owner or Owner’s Authorized
627 Officer/Director/Partner/Manager)...
628
629 ...(Signatory’s Title/Office)...
630
631 The foregoing instrument was acknowledged before me this ....
632 day of ...., ...(year)..., by ...(name of person)... as ...(type
633 of authority,...e.g. officer, trustee, attorney in fact)... for
634 ...(name of party on behalf of whom instrument was executed)....
635
636 ...(Signature of Notary Public - State of Florida)...
637
638 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
639
640 Personally Known .... OR Produced Identification ....
641
642 Type of Identification Produced............
643
644 Verification pursuant to Section 92.525, Florida Statutes.
645
646 Under penalties of perjury, I declare that I have read the
647 foregoing and that the facts stated in it are true to the best
648 of my knowledge and belief.
649
650 ...(Signature of Natural Person Signing Above)...
651 (e) A copy of any payment bond must be attached at the time
652 of recordation of the notice of commencement. The failure to
653 attach a copy of the bond to the notice of commencement when the
654 notice is recorded negates the exemption provided in s.
655 713.02(6). However, if a payment bond under s. 713.23 exists but
656 was not attached at the time of recordation of the notice of
657 commencement, the bond may be used to transfer any recorded lien
658 of a lienor except that of the contractor by the recordation and
659 service of a notice of bond pursuant to s. 713.23(2). The notice
660 requirements of s. 713.23 apply to any claim against the bond;
661 however, the time limits for serving any required notices shall
662 begin running from the later of the time specified in s. 713.23
663 or the date the notice of bond is served on the lienor.
664 (f) The giving of a notice of commencement is effective
665 upon the filing of the notice in the clerk’s office.
666 (g) The owner must sign the notice of commencement and no
667 one else may be permitted to sign in his or her stead.
668 (2) If the improvement described in the notice of
669 commencement is not actually commenced within 90 days after the
670 recording thereof, such notice is void and of no further effect.
671 (3) The recording of a notice of commencement does not
672 constitute a lien, cloud, or encumbrance on real property, but
673 gives constructive notice that claims of lien under this part
674 may be recorded and may take priority as provided in s. 713.07.
675 The posting of a copy does not constitute a lien, cloud, or
676 encumbrance on real property, nor actual or constructive notice
677 of any of them.
678 (4) This section does not apply to an owner who is
679 constructing improvements described in s. 713.04.
680 (5)(a) A notice of commencement that is recorded within the
681 effective period may be amended to extend the effective period,
682 change erroneous information in the original notice, or add
683 information that was omitted from the original notice. However,
684 in order to change contractors, a new notice of commencement or
685 notice of recommencement must be executed and recorded.
686 (b) The amended notice must identify the official records
687 book and page where the original notice of commencement is
688 recorded, and a copy of the amended notice must be served by the
689 owner upon the contractor and each lienor who serves notice
690 before or within 30 days after the date the amended notice is
691 recorded.
692 (6) Unless otherwise provided in the notice of commencement
693 or a new or amended notice of commencement, a notice of
694 commencement is not effectual in law or equity against a
695 conveyance, transfer, or mortgage of or lien on the real
696 property described in the notice, or against creditors or
697 subsequent purchasers for a valuable consideration, after 1 year
698 after the date of recording the notice of commencement.
699 (7) A lender must, prior to the disbursement of any
700 construction funds to the contractor, record the notice of
701 commencement in the clerk’s office as required by this section;
702 however, the lender is not required to post a certified copy of
703 the notice at the construction site. The posting of the notice
704 at the construction site remains the owner’s obligation. The
705 failure of a lender to record the notice of commencement as
706 required by this subsection renders the lender liable to the
707 owner for all damages sustained by the owner as a result of the
708 failure. Whenever a lender is required to record a notice of
709 commencement, the lender shall designate the lender, in addition
710 to others, to receive copies of notices to owner. This
711 subsection does not give any person other than the owner a claim
712 or right of action against a lender for failure to record a
713 notice of commencement.
714 Section 5. Section 713.135, Florida Statutes, is amended to
715 read:
716 713.135 Notice of commencement and applicability of lien.—
717 (1) When any person applies for a building permit, the
718 authority issuing such permit shall:
719 (a) Require the applicant to submit the signed and dated
720 general statement of an owner’s rights and responsibilities
721 under Florida’s Construction Lien Law provided in s. 713.015 for
722 any single-family or multifamily dwelling up to and including
723 four units. A building permit application may not be processed
724 unless the signed document is in the file.
725 (b)(a) Print on the face of each permit card in no less
726 than 14-point, capitalized, boldfaced type: “WARNING TO OWNER:
727 IF YOU FAIL YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT, YOU
728 MAY PAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR
729 PROPERTY. A NOTICE OF COMMENCEMENT, AND THE CONTRACTOR’S PAYMENT
730 BOND IF THE PROJECT IS BONDED, MUST BE RECORDED AND POSTED ON
731 THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO
732 OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
733 RECORDING YOUR NOTICE OF COMMENCEMENT.”
734 (c)(b) Make available to Provide the applicant and the
735 owner of the real property upon which improvements are to be
736 constructed copies of the general statement of an owner’s rights
737 and responsibilities under Florida’s with a printed statement
738 stating that the right, title, and interest of the person who
739 has contracted for the improvement may be subject to attachment
740 under the Construction Lien Law, as described in s. 713.015,
741 along with the attached statutory form. The issuing authority
742 may make the general statement and form available in printed
743 form or on the Internet or both. The Department of Business and
744 Professional Regulation shall furnish, for distribution, the
745 statement described in this paragraph, and the statement must be
746 a summary of the Construction Lien Law and must include an
747 explanation of the provisions of the Construction Lien Law
748 relating to the recording, and the posting of copies, of notices
749 of commencement and a statement encouraging the owner to record
750 a notice of commencement and post a copy of the notice of
751 commencement in accordance with s. 713.13. The statement must
752 also contain an explanation of the owner’s rights if a lienor
753 fails to furnish the owner with a notice as provided in s.
754 713.06(2) and an explanation of the owner’s rights as provided
755 in s. 713.22. The authority that issues the building permit must
756 obtain from the Department of Business and Professional
757 Regulation the statement required by this paragraph and must
758 mail, deliver by electronic mail or other electronic format or
759 facsimile, or personally deliver that statement to the owner or,
760 in a case in which the owner is required to personally appear to
761 obtain the permit, provide that statement to any owner making
762 improvements to real property consisting of a single or multiple
763 family dwelling up to and including four units. However, the
764 failure by the authorities to provide the summary does not
765 subject the issuing authority to liability.
766 (c) In addition to providing the owner with the statement
767 as required by paragraph (b), inform each applicant who is not
768 the person whose right, title, and interest is subject to
769 attachment that, as a condition to the issuance of a building
770 permit, the applicant must promise in good faith that the
771 statement will be delivered to the person whose property is
772 subject to attachment.
773 (d) Furnish to the applicant two or more copies of a form
774 of notice of commencement conforming with s. 713.13. If the
775 direct contract is greater than $2,500, the applicant shall file
776 with the issuing authority prior to the first inspection either
777 a certified copy of the recorded notice of commencement or a
778 notarized statement that the notice of commencement has been
779 filed for recording, along with a copy thereof. In the absence
780 of the filing of a certified copy of the recorded notice of
781 commencement, the issuing authority or a private provider
782 performing inspection services may not perform or approve
783 subsequent inspections until the applicant files by mail,
784 facsimile, hand delivery, or any other means such certified copy
785 with the issuing authority. The certified copy of the notice of
786 commencement must contain the name and address of the owner, the
787 name and address of the contractor, and the location or address
788 of the property being improved. The issuing authority shall
789 (d) Verify that the name and address of the owner, the name
790 of the contractor, and the location or address of the property
791 being improved which is contained in the certified copy of the
792 notice of commencement is consistent with the information in the
793 building permit application.
794 (e) Provide the recording information from the official
795 public records in which the notice of commencement and payment
796 bond, if any, are recorded to any person upon request. The
797 issuing authority shall provide the recording information on the
798 certified copy of the recorded notice of commencement to any
799 person upon request. This subsection does not require the
800 recording of a notice of commencement prior to the issuance of a
801 building permit. If a local government requires a separate
802 permit or inspection for installation of temporary electrical
803 service or other temporary utility service, land clearing, or
804 other preliminary site work, such permits may be issued and such
805 inspections may be conducted without providing the issuing
806 authority with a certified copy of a recorded notice of
807 commencement or a notarized statement regarding a recorded
808 notice of commencement. This subsection does not apply to a
809 direct contract to repair or replace an existing heating or air
810 conditioning system in an amount less than $7,500.
811 (f)(e) Not require that a notice of commencement be
812 recorded as a condition of the application for, or processing or
813 issuance of, a building permit. However, this paragraph does not
814 modify or waive the inspection requirements set forth in this
815 subsection.
816 (g) Not require that a notice of commencement be recorded
817 or provided for those projects described in s. 713.137(2).
818 (2) An issuing authority under subsection (1) is not liable
819 in any civil action for the failure of the person whose property
820 is subject to attachment to receive or to be delivered the
821 general statement of an owner’s rights and responsibilities
822 under Florida’s a printed statement stating that the right,
823 title, and interest of the person who has contracted for the
824 improvement may be subject to attachment under the Construction
825 Lien Law as provided in s. 713.015.
826 (3) An issuing authority under subsection (1) is not liable
827 in any civil action for the failure to verify that a certified
828 copy of the recorded notice of commencement has been filed in
829 accordance with this section.
830 (4) The several boards of county commissioners, municipal
831 councils, or other similar bodies may by ordinance or resolution
832 establish reasonable fees for furnishing, upon request, copies
833 of the forms and the printed statement provided in paragraph
834 (1)(a) paragraphs (1)(b) and (d) in an amount not to exceed $5
835 to be paid by the applicant for each permit in addition to all
836 other costs of the permit; however, no forms or statement need
837 be furnished, mailed, or otherwise provided to, nor may such
838 additional fee be obtained from, applicants for permits in those
839 cases in which the owner of a legal or equitable interest
840 (including that of ownership of stock of a corporate landowner)
841 of the real property to be improved is engaged in the business
842 of construction of buildings for sale to others and intends to
843 make the improvements authorized by the permit on the property
844 and upon completion will offer the improved real property for
845 sale.
846 (5) In addition to any other information required by the
847 authority issuing the permit, each building permit application
848 must contain:
849 (a) The name and address of the owner of the real property;
850 (b) The name and address of the contractor;
851 (c) A description sufficient to identify the real property
852 to be improved; and
853 (d) The number or identifying symbol assigned to the
854 building permit by the issuing authority, which number or symbol
855 must be affixed to the application by the issuing authority.
856 (6)(a) In addition to any other information required by the
857 authority issuing the permit, the building permit application
858 must be in substantially the following form:
859
860 Tax Folio No.........
861 BUILDING PERMIT APPLICATION
862
863 Owner’s Name....................................................
864 Owner’s Address.................................................
865 Fee Simple Titleholder’s Name (If other than owner).............
866 Fee Simple Titleholder’s Address (If other than owner)..........
867 City............................................................
868 State............ Zip............
869 Contractor’s Name...............................................
870 Contractor’s Address............................................
871 City............................................................
872 State............ Zip............
873 Job Name........................................................
874 Job Address.....................................................
875 City................ County............
876 Legal Description...............................................
877 Bonding Company.................................................
878 Bonding Company Address.........................................
879 City................ State............
880 Architect/Engineer’s Name.......................................
881 Architect/Engineer’s Address....................................
882 Mortgage Lender’s Name..........................................
883 Mortgage Lender’s Address.......................................
884
885 Application is hereby made to obtain a permit to do the
886 work and installations as indicated. I certify that no work or
887 installation has commenced prior to the issuance of a permit and
888 that all work will be performed to meet the standards of all
889 laws regulating construction in this jurisdiction. I understand
890 that a separate permit must be secured for ELECTRICAL WORK,
891 PLUMBING, SIGNS, WELLS, POOLS, FURNACES, BOILERS, HEATERS,
892 TANKS, and AIR CONDITIONERS, etc.
893
894 OWNER’S AFFIDAVIT: I certify that all the foregoing information
895 is accurate and that all work will be done in compliance with
896 all applicable laws regulating construction and zoning.
897
898 WARNING TO OWNER: IF YOU FAIL YOUR FAILURE TO RECORD A
899 NOTICE OF COMMENCEMENT, YOU MAY PAY RESULT IN YOUR
900 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A
901 NOTICE OF COMMENCEMENT, AND THE CONTRACTOR’S PAYMENT
902 BOND IF THE PROJECT IS BONDED, MUST BE RECORDED AND
903 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION.
904
905 IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
906 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR
907 RECORDING YOUR NOTICE OF COMMENCEMENT.
908
909 ...(Signature of Owner or Agent)...
910
911 ...(including contractor)...
912 STATE OF FLORIDA
913 COUNTY OF ....
914
915 Sworn to (or affirmed) and subscribed before me this ....
916 day of ...., ...(year)..., by ...(name of person making
917 statement)....
918
919 ...(Signature of Notary Public - State of Florida)...
920 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
921
922 Personally Known .... OR Produced Identification ....
923
924 Type of Identification Produced............
925 ...(Signature of Contractor)...
926
927 STATE OF FLORIDA
928 COUNTY OF ....
929
930 Sworn to (or affirmed) and subscribed before me this ....
931 day of ...., ...(year)..., by ...(name of person making
932 statement)....
933 ...(Signature of Notary Public - State of Florida)...
934 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
935
936 Personally Known .... OR Produced Identification ....
937
938 Type of Identification Produced............
939 (Certificate of Competency Holder)
940
941 Contractor’s State Certification or Registration No.....
942
943 Contractor’s Certificate of Competency No.........
944
945 APPLICATION APPROVED BY
946 ................Permit Officer
947 (b) Consistent with the requirements of paragraph (a), an
948 authority responsible for issuing building permits under this
949 section may accept a building permit application in an
950 electronic format, as prescribed by the authority. Building
951 permit applications submitted to the authority electronically
952 must contain the following additional statement in lieu of the
953 requirement in paragraph (a) that a signed, sworn, and notarized
954 signature of the owner or agent and the contractor be part of
955 the owner’s affidavit:
956
957 OWNER’S ELECTRONIC SUBMISSION STATEMENT: Under penalty of
958 perjury, I declare that all the information contained in this
959 building permit application is true and correct.
960 (c) An authority responsible for issuing building permit
961 applications which accepts building permit applications in an
962 electronic format shall provide public Internet access to the
963 electronic building permit applications in a searchable format.
964 (7) This section applies to every municipality and county
965 in the state which now has or hereafter may have a system of
966 issuing building permits for the construction of improvements or
967 for the alteration or repair of improvements on or to real
968 property located within the geographic limits of the issuing
969 authority.
970 Section 6. Section 713.137, Florida Statutes, is created to
971 read:
972 713.137 Prerequisites to inspection of improvements;
973 exceptions.—
974 (1) The authority issuing a building permit or a private
975 provider performing inspection services may not inspect the real
976 property being improved unless:
977 (a) The following documents have been filed with the
978 issuing authority:
979 1.a. A certified copy of the recorded notice of
980 commencement; or
981 b. A notarized statement that the notice of commencement
982 has been filed for recording, along with a copy of the notice.
983 2. If the permit is for a commercial project:
984 a. A copy of the contractor’s recorded payment bond; or
985 b. A notarized statement of the contractor or owner stating
986 that a payment bond was not required.
987 3. A signed copy of the general statement of owner’s rights
988 and responsibilities under Florida’s Construction Lien Law, if
989 required by s. 713.015.
990 (b) The information in the notice of commencement filed
991 with the issuing authority is consistent with the building
992 permit application, complete, and legible.
993 (2) This section does not apply to inspections of the
994 following improvements:
995 (a) The installation of temporary electrical service or
996 other temporary utility service, land clearing, or other
997 preliminary site work.
998 (b) Improvements pursuant to a direct contract in an amount
999 of $5,000 or less.
1000 (c) The repair or replacement of a heating or air
1001 conditioning system pursuant to a direct contract in an amount
1002 of $7,500 or less.
1003 Section 7. Section 713.16, Florida Statutes, is amended to
1004 read:
1005 713.16 Demand for copy of contract and statements of
1006 account; form.—
1007 (1) A copy of the contract of a lienor or owner and a
1008 statement of the amount due or to become due if fixed or
1009 ascertainable thereon must be furnished by any party thereto,
1010 upon written demand of an owner or a lienor contracting with or
1011 employed by the other party to such contract. If the owner or
1012 lienor refuses or neglects to furnish such copy of the contract
1013 or such statement, or willfully and falsely states the amount
1014 due or to become due if fixed or ascertainable under such
1015 contract, any person who suffers any detriment thereby has a
1016 cause of action against the person refusing or neglecting to
1017 furnish the same or willfully and falsely stating the amount due
1018 or to become due for his or her damages sustained thereby. The
1019 information contained in such copy or statement furnished
1020 pursuant to such written demand is binding upon the owner or
1021 lienor furnishing it unless actual notice of any modification is
1022 given to the person demanding the copy or statement before such
1023 person acts in good faith in reliance on it. The person
1024 demanding such documents must pay for the reproduction thereof;
1025 and, if such person fails or refuses to do so, he or she is
1026 entitled only to inspect such documents at reasonable times and
1027 places.
1028 (2) The owner may serve in writing a demand of any lienor
1029 for a written statement under oath of his or her account showing
1030 the nature of the labor or services performed and to be
1031 performed, if any, the materials furnished, the materials to be
1032 furnished, if known, the amount paid on account to date, the
1033 amount due, and the amount to become due, if known, as of the
1034 date of the statement by the lienor. Any such demand to a lienor
1035 must be served on the lienor at the address and to the attention
1036 of any person who is designated to receive the demand in the
1037 notice to owner served by such lienor and must include a
1038 description of the project, including the names of the owner,
1039 the contractor, and the lienor’s customer, sufficient for the
1040 lienor to properly identify the account in question. The failure
1041 or refusal to furnish the statement does not deprive the lienor
1042 of his or her lien if the demand is not served at the address of
1043 the lienor or directed to the attention of the person designated
1044 to receive the demand in the notice to owner. The failure or
1045 refusal to furnish the statement under oath within 30 days after
1046 the demand, or the furnishing of a false or fraudulent
1047 statement, deprives the person so failing or refusing to furnish
1048 such statement of his or her lien. If the owner serves more than
1049 one demand for statement of account on a lienor and none of the
1050 information regarding the account has changed since the lienor’s
1051 last response to a demand, the failure or refusal to furnish
1052 such statement does not deprive the lienor of his or her lien.
1053 The negligent inclusion or omission of any information deprives
1054 the person of his or her lien to the extent the owner can
1055 demonstrate prejudice from such act or omission by the lienor.
1056 The failure to furnish a response to a demand for statement of
1057 account does not affect the validity of any claim of lien being
1058 enforced through a foreclosure case filed prior to the date the
1059 demand for statement is received by the lienor.
1060 (3) A request for sworn statement of account must be in
1061 substantially the following form:
1062 REQUEST FOR SWORN STATEMENT OF ACCOUNT
1063
1064 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED
1065 UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
1066 STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
1067
1068 To: ...(Lienor’s name and address)...
1069
1070 The undersigned hereby demands a written statement under oath of
1071 his or her account showing the nature of the labor or services
1072 performed and to be performed, if any, the materials furnished,
1073 the materials to be furnished, if known, the amount paid on
1074 account to date, the amount due, and the amount to become due,
1075 if known, as of the date of the statement for the improvement of
1076 real property identified as ......(property description).......
1077 Name of contractor: .............
1078 Name of the lienor’s customer (as specified in the lienor’s
1079 Notice to Owner, if such notice has been served): .............
1080 ...(signature and address of owner)...
1081 ......(date of request for sworn statement of account)......
1082 (4) When a contractor has furnished a payment bond pursuant
1083 to s. 713.23, he or she may, when an owner makes any payment to
1084 the contractor or directly to a lienor, serve a written demand
1085 on any other lienor for a written statement under oath of his or
1086 her account showing the nature of the labor or services
1087 performed and to be performed, if any, the materials furnished,
1088 the materials to be furnished, if known, the amount paid on
1089 account to date, the amount due, and the amount to become due,
1090 if known, as of the date of the statement by the lienor. Any
1091 such demand to a lienor must be served on the lienor at the
1092 address and to the attention of any person who is designated to
1093 receive the demand in the notice to contractor served by such
1094 lienor. The failure or refusal to furnish the statement does not
1095 deprive the lienor of his or her rights under the bond if the
1096 demand is not served at the address of the lienor or directed to
1097 the attention of the person designated to receive the demand in
1098 the notice to contractor or if the demand does not include a
1099 description of the project, including the names of the owner,
1100 the contractor, and the lienor’s customer as set forth in the
1101 lienor’s notice to contractor, sufficient for the lienor to
1102 properly identify the account in question. The failure to
1103 furnish the statement within 30 days after the demand, or the
1104 furnishing of a false or fraudulent statement, deprives the
1105 person who fails to furnish the statement, or who furnishes the
1106 false or fraudulent statement, of his or her rights under the
1107 bond. If the contractor serves more than one demand for
1108 statement of account on a lienor and none of the information
1109 regarding the account has changed since the lienor’s last
1110 response to a demand, the failure or refusal to furnish such
1111 statement does not deprive the lienor of his or her rights under
1112 the bond. The negligent inclusion or omission of any information
1113 deprives the person of his or her rights under the bond to the
1114 extent the contractor can demonstrate prejudice from such act or
1115 omission by the lienor. The failure to furnish a response to a
1116 demand for statement of account does not affect the validity of
1117 any claim on the bond being enforced in a lawsuit filed prior to
1118 the date the demand for statement of account is received by the
1119 lienor.
1120 (5)(a) Any lienor who submits or mails has recorded a claim
1121 of lien to the clerk for recording may make written demand on
1122 the owner for a written statement under oath showing:
1123 1. The amount of the direct contract under which the lien
1124 was recorded;
1125 2. The dates and amounts paid or to be paid by or on behalf
1126 of the owner for all improvements described in the direct
1127 contract;
1128 3. The reasonable estimated costs of completing the direct
1129 contract under which the lien was claimed pursuant to the scope
1130 of the direct contract; and
1131 4. If known, the actual cost of completion.
1132 (b) Any owner who does not provide the statement within 30
1133 days after demand, or who provides a false or fraudulent
1134 statement, is not a prevailing party for purposes of an award of
1135 attorney’s fees under s. 713.29. The written demand must include
1136 the following warning in conspicuous type in substantially the
1137 following form:
1138 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT
1139 WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL
1140 RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY
1141 ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING
1142 THIS STATEMENT.
1143 (6) Any written demand served on the owner shall include a
1144 description of the project, including the names of the
1145 contractor and the lienor’s customer as set forth in the
1146 lienor’s notice to owner, sufficient for the owner to properly
1147 identify the project in question.
1148 (7)(6) For purposes of this section, the term “information”
1149 means the nature and quantity of the labor, services, and
1150 materials furnished or to be furnished by a lienor and the
1151 amount paid, the amount due, and the amount to become due on the
1152 lienor’s account.
1153 Section 8. Section 713.18, Florida Statutes, is amended to
1154 read:
1155 713.18 Manner of serving notices and other instruments.—
1156 (1) Service of notices, claims of lien, affidavits,
1157 assignments, and other instruments permitted or required under
1158 this part, or copies thereof when so permitted or required,
1159 unless otherwise specifically provided in this part, must be
1160 made by one of the following methods:
1161 (a) By actual delivery to the person to be served; if a
1162 partnership, to one of the partners; if a corporation, to an
1163 officer, director, managing agent, or business agent; or, if a
1164 limited liability company, to a member or manager.
1165 (b) By sending the same by common carrier delivery service
1166 or registered, global express guaranteed, or certified mail,
1167 with postage prepaid, and or by overnight or second-day delivery
1168 with evidence of delivery, which may be in an electronic format.
1169 (c) If the method specified in paragraph (a) or paragraph
1170 (b) cannot be accomplished, By posting on the site of the
1171 improvement if service as provided by paragraph (a) or paragraph
1172 (b) cannot be accomplished premises.
1173 (2) Notwithstanding subsection (1), service of if a notice
1174 to owner, a notice to contractor under s. 713.23, or a
1175 preliminary notice under s. 255.05 is mailed by registered or
1176 certified mail with postage prepaid to the person to be served
1177 at any of the addresses set forth in subsection (3) within 40
1178 days after the date the lienor first furnishes labor, services,
1179 or materials, service of that notice is effective as of the date
1180 of mailing if:
1181 (a) The notice is mailed by registered, global express
1182 guaranteed, or certified mail, with postage prepaid, to the
1183 person to be served at any of the addresses set forth in
1184 subsection (3);
1185 (b) The notice is mailed within 40 days after the date the
1186 lienor first furnishes labor, services, or materials; and
1187 (c)1. The person who served the notice maintains a
1188 registered or certified mail log that shows the registered or
1189 certified mail number issued by the United States Postal
1190 Service, the name and address of the person served, and the date
1191 stamp of the United States Postal Service confirming the date of
1192 mailing; or if
1193 2. The person who served the notice maintains electronic
1194 tracking records generated through use of the United States
1195 Postal Service Confirm service or a similar service containing
1196 the postal tracking number, the name and address of the person
1197 served, and verification of the date of receipt by the United
1198 States Postal Service.
1199 (3)(a) Service of If an instrument served pursuant to this
1200 section is effective on the date of mailing if the instrument:
1201 1. Was sent to the last address shown in the notice of
1202 commencement or any amendment thereto or, in the absence of a
1203 notice of commencement, to the last address shown in the
1204 building permit application, or to the last known address of the
1205 person to be served; and, is not received, but
1206 2. Is returned as being “refused,” “moved, not
1207 forwardable,” or “unclaimed,” or is otherwise not delivered or
1208 deliverable through no fault of the person serving the item,
1209 then service is effective on the date the instrument was sent.
1210 (b) If the address information shown in the notice of
1211 commencement or any amendment to the notice, or in the absence
1212 of a notice of commencement, in the building permit application,
1213 is incomplete for purposes of mailing or delivery, the person
1214 serving the item may complete the address and properly format it
1215 according to United States Postal Service addressing standards
1216 using information obtained from the property appraiser or
1217 another public record or directory without affecting the
1218 validity of service under this section.
1219 (4) A notice served by a lienor on one owner or one partner
1220 of a partnership owning the real property If the real property
1221 is owned by more than one person or a partnership, a lienor may
1222 serve any notices or other papers under this part on any one of
1223 such owners or partners, and such notice is deemed notice to all
1224 owners and partners.
1225 Section 9. Section 713.22, Florida Statutes, is amended to
1226 read:
1227 713.22 Duration of lien.—
1228 (1) A No lien provided by this part may not shall continue
1229 for a longer period than 1 year after the claim of lien has been
1230 recorded or 1 year after the recording of an amended claim of
1231 lien that shows a later date of final furnishing of labor,
1232 services, or materials, unless within that time an action to
1233 enforce the lien is commenced in a court of competent
1234 jurisdiction. A lien that has been continued beyond the 1-year
1235 period The continuation of the lien effected by the commencement
1236 of an the action is shall not enforceable be good against
1237 creditors or subsequent purchasers for a valuable consideration
1238 and without notice, unless a notice of lis pendens is recorded.
1239 (2) An owner or the owner’s agent or attorney may elect to
1240 shorten the time prescribed in subsection (1) within which to
1241 commence an action to enforce any claim of lien or claim against
1242 a bond or other security under s. 713.23 or s. 713.24 by
1243 recording in the clerk’s office a notice in substantially the
1244 following form:
1245 NOTICE OF CONTEST OF LIEN
1246 To: ...(Name and address of lienor)...
1247 You are notified that the undersigned contests the claim of lien
1248 filed by you on ...., ...(year)..., and recorded in .... Book
1249 ...., Page ...., of the public records of .... County, Florida,
1250 and that the time within which you may file suit to enforce your
1251 lien is limited to 60 days from the date of service of this
1252 notice. This .... day of ...., ...(year).....
1253 Signed: ...(Owner or Attorney)...
1254
1255 The lien of any lienor upon whom such notice is served and who
1256 fails to institute a suit to enforce his or her lien within 60
1257 days after service of such notice shall be extinguished
1258 automatically. The clerk shall mail a copy of the notice of
1259 contest to the lien claimant at the address shown in the claim
1260 of lien or most recent amendment thereto, by certified or
1261 registered mail, return receipt requested, and shall certify to
1262 such service on the face of such notice and record the notice.
1263 Service shall be deemed complete upon mailing.
1264 Section 10. Paragraph (e) of subsection (1) and subsections
1265 (2) and (4) of section 713.23, Florida Statutes, are amended to
1266 read:
1267 713.23 Payment bond.—
1268 (1)
1269 (e) An No action for the labor or materials or supplies may
1270 not be instituted or prosecuted against the contractor or surety
1271 unless both notices have been given. An No action may not shall
1272 be instituted or prosecuted against the contractor or against
1273 the surety on the bond under this section after 1 year from the
1274 performance of the labor or completion of delivery of the
1275 materials and supplies. The time period for bringing an action
1276 against the contractor or surety on the bond shall be measured
1277 from the last day of furnishing labor, services, or materials by
1278 the lienor. The time period may and shall not be measured by
1279 other standards, such as the issuance of a certificate of
1280 occupancy or the issuance of a certificate of substantial
1281 completion. A contractor or the contractor’s agent or attorney
1282 may elect to shorten the prescribed time within which an action
1283 to enforce any claim against a payment bond provided under this
1284 section or s. 713.245 must may be commenced at any time after a
1285 notice of nonpayment, if required, has been served for the claim
1286 by recording in the clerk’s office a notice in substantially the
1287 following form:
1288 NOTICE OF CONTEST OF CLAIM
1289 AGAINST PAYMENT BOND
1290 To: ...(Name and address of lienor)...
1291 You are notified that the undersigned contests your notice
1292 of nonpayment, dated ...., ...., and served on the undersigned
1293 on ...., ...., and that the time within which you may file suit
1294 to enforce your claim is limited to 60 days from the date of
1295 service of this notice.
1296
1297 DATED on ...., .....
1298
1299 Signed: ...(Contractor or Attorney)...
1300
1301 The claim of any lienor upon whom the notice is served and who
1302 fails to institute a suit to enforce his or her claim against
1303 the payment bond within 60 days after service of the notice
1304 shall be extinguished automatically. The clerk shall mail a copy
1305 of the notice of contest to the lienor at the address shown in
1306 the notice of nonpayment or most recent amendment thereto, by
1307 certified or registered mail, return receipt requested, and
1308 shall certify to such service on the face of the notice and
1309 record the notice. Service is complete upon mailing.
1310 (2) The bond shall secure every lien under the direct
1311 contract accruing subsequent to its execution and delivery,
1312 except that of the contractor. Every claim of lien, except that
1313 of the contractor, filed subsequent to execution and delivery of
1314 the bond shall be transferred to it with the same effect as
1315 liens transferred under s. 713.24. Record notice of the transfer
1316 shall be effected by the contractor, or any person having an
1317 interest in the property against which the claim of lien has
1318 been asserted, by recording in the clerk’s office a notice in
1319 substantially the following form:
1320 NOTICE OF BOND
1321
1322 To ...(Name and Address of Lienor)...
1323
1324 You are notified that the claim of lien filed by you on ....,
1325 ...., and recorded in Official Records Book .... at page .... of
1326 the public records of .... County, Florida, is secured by a
1327 bond, a copy being attached.
1328
1329 Signed: ...(Name of person recording notice)...
1330
1331 The notice shall be verified. The clerk shall mail a copy of the
1332 notice to the lienor at the address shown in the claim of lien,
1333 or the most recent amendment to it; shall certify to the service
1334 on the face of the notice; and shall record the notice. The
1335 clerk shall receive the same fee as prescribed in s. 713.24 s.
1336 713.24(1) for certifying to a transfer of lien.
1337 (4) The provisions of s. 713.24(7) s. 713.24(3) shall apply
1338 to bonds under this section.
1339 Section 11. Section 713.24, Florida Statutes, is amended to
1340 read:
1341 713.24 Transfer of liens to security.—
1342 (1) A Any lien claimed under this part may be transferred,
1343 by a any person having an interest in the real property upon
1344 which the lien is imposed or the contract under which the lien
1345 is claimed, from such real property to other security by either:
1346 (a) Depositing in the clerk’s office a sum of money;, or
1347 (b) Filing in the clerk’s office a bond executed as surety
1348 by a surety insurer licensed to do business in this state.,
1349 (2) The security must either to be in an amount equal: to
1350 (a) The amount demanded in the such claim of lien;, plus
1351 (b) Interest on the claim thereon at the legal rate for 3
1352 years, plus $1,000 or 25 percent of the amount demanded in the
1353 claim of lien, whichever is greater, to apply on any attorney’s
1354 fees and court costs that may be taxed in any proceeding to
1355 enforce the said lien.
1356 (3) The security Such deposit or bond shall be conditioned
1357 to pay any judgment or decree that which may be rendered for the
1358 satisfaction of the lien for which such claim of lien was
1359 recorded.
1360 (4) A Upon making such deposit or filing such bond, the
1361 clerk who receives other security for a lien:
1362 (a) Shall make and record a certificate showing the
1363 transfer of the lien from the real property to the security. The
1364 clerk and shall serve mail a copy of the certificate and a copy
1365 of the bond, if the lien was transferred to a bond, on thereof
1366 by registered or certified mail to the lienor named in the claim
1367 of lien so transferred, at the address stated in the claim
1368 therein. When Upon filing the certificate of transfer is
1369 recorded, the real property is shall thereupon be released from
1370 the lien claimed, and the such lien is shall be transferred to
1371 the other said security.
1372 (b) May collect a service charge of no more than $20 for
1373 making and serving the certificate. The clerk may collect an
1374 additional charge of no more than $10 for each additional lien
1375 transferred to the security. The clerk shall receive the
1376 statutory service charges as prescribed in s. 28.24 for
1377 recording the certificate and approving the bond.
1378 (5) In the absence of allegations of privity between the
1379 lienor and the owner, and subject to any order of the court
1380 increasing the amount required for the lien transfer deposit or
1381 bond, no other judgment or decree to pay money may be entered by
1382 the court against the owner. The clerk shall be entitled to a
1383 service charge for making and serving the certificate, in the
1384 amount of up to $20. If the transaction involves the transfer of
1385 multiple liens, an additional charge of up to $10 for each
1386 additional lien shall be charged. For recording the certificate
1387 and approving the bond, the clerk shall receive her or his usual
1388 statutory service charges as prescribed in s. 28.24. Any number
1389 of liens may be transferred to one such security.
1390 (6)(2) Any excess of the security over the aggregate amount
1391 of any judgments or decrees rendered plus costs actually taxed
1392 shall be repaid to the party filing the same or her or his
1393 successor in interest. Any deposit of money shall be considered
1394 as paid into court and is shall be subject to the provisions of
1395 law relative to payments of money into court and the disposition
1396 of same.
1397 (7)(3) Any party having an interest in such security or the
1398 property from which the lien was transferred may at any time,
1399 and any number of times, file a complaint in chancery in the
1400 circuit court of the county where such security is deposited, or
1401 file a motion in a pending action to enforce a lien, for an
1402 order to require additional security, reduction of security,
1403 change or substitution of sureties, payment of discharge
1404 thereof, or any other matter affecting the said security. If the
1405 court finds that the amount of the deposit or bond in excess of
1406 the amount claimed in the claim of lien is insufficient to pay
1407 the lienor’s attorney’s fees and court costs incurred in the
1408 action to enforce the lien, the court must increase the amount
1409 of the cash deposit or lien transfer bond. Nothing in This
1410 section does not shall be construed to vest exclusive
1411 jurisdiction in the circuit courts over transfer bond claims for
1412 nonpayment of an amount within the monetary jurisdiction of the
1413 county courts.
1414 (8)(4) If a proceeding to enforce a transferred lien is not
1415 commenced within the time specified in s. 713.22 or if it
1416 appears that the transferred lien has been satisfied of record,
1417 the clerk shall return the said security upon request of the
1418 person depositing or filing the same, or the insurer. If a
1419 proceeding to enforce a lien is commenced in a court of
1420 competent jurisdiction within the time specified in s. 713.22
1421 and, during such proceeding, the lien is transferred pursuant to
1422 this section or s. 713.13(1)(e), an action commenced within 1
1423 year after the transfer, unless otherwise shortened by operation
1424 of law, in the same county or circuit court to recover against
1425 the security shall be deemed to have been brought as of the date
1426 of filing the action to enforce the lien, and the court has
1427 shall have jurisdiction over the action.
1428 Section 12. This act shall take effect October 1, 2010.