| 1 | A bill to be entitled |
| 2 | An act relating to construction liens; amending s. 713.10, |
| 3 | F.S.; specifying that a lessor's interest in property is |
| 4 | not subject to a construction lien for improvements made |
| 5 | by a lessee if certain documents containing specific |
| 6 | information and meeting certain criteria are recorded in |
| 7 | the official records of the county before the recording of |
| 8 | a notice of commencement; authorizing certain contractors |
| 9 | and lienors to demand that a lessor serve verified copies |
| 10 | of a lease prohibiting liability for improvements made by |
| 11 | a lessee; subjecting the interest of a lessor to a |
| 12 | specified lien for failing to serve such verified copies |
| 13 | or serving a false or fraudulent copy; requiring that the |
| 14 | demand include a specified warning; amending s. 713.13, |
| 15 | F.S.; revising the form for notice of commencement to |
| 16 | include information relating to the obligations of a |
| 17 | lessee who contracts for improvements to property; |
| 18 | providing an effective date. |
| 19 |
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| 20 | Be It Enacted by the Legislature of the State of Florida: |
| 21 |
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| 22 | Section 1. Section 713.10, Florida Statutes, is amended to |
| 23 | read: |
| 24 | 713.10 Extent of liens.- |
| 25 | (1) Except as provided in s. 713.12, a lien under this |
| 26 | part shall extend to, and only to, the right, title, and |
| 27 | interest of the person who contracts for the improvement as such |
| 28 | right, title, and interest exists at the commencement of the |
| 29 | improvement or is thereafter acquired in the real property. When |
| 30 | an improvement is made by a lessee in accordance with an |
| 31 | agreement between such lessee and her or his lessor, the lien |
| 32 | shall extend also to the interest of such lessor. |
| 33 | (2)(a) When the lease expressly provides that the interest |
| 34 | of the lessor shall not be subject to liens for improvements |
| 35 | made by the lessee, the lessee shall notify the contractor |
| 36 | making any such improvements of such provision or provisions in |
| 37 | the lease, and the knowing or willful failure of the lessee to |
| 38 | provide such notice to the contractor shall render the contract |
| 39 | between the lessee and the contractor voidable at the option of |
| 40 | the contractor. |
| 41 | (b) The interest of the lessor shall not be subject to |
| 42 | liens for improvements made by the lessee when: |
| 43 | 1. The lease, or a short form or a memorandum of the lease |
| 44 | that contains the specific language in the lease prohibiting |
| 45 | such liability, is recorded in the official records of the |
| 46 | county where the premises are located before the recording of a |
| 47 | notice of commencement for improvements to the premises |
| 48 | (1) The lease or a short form thereof is recorded in the |
| 49 | clerk's office and the terms of the lease expressly prohibit |
| 50 | such liability; or |
| 51 | 2.(2) The terms All of the lease expressly prohibit such |
| 52 | liability and a notice advising that leases entered into by a |
| 53 | lessor for the rental of premises on a parcel of land prohibit |
| 54 | such liability and a notice which sets forth the following is |
| 55 | has been recorded by the lessor in the official public records |
| 56 | of the county in which the parcel of land is located before the |
| 57 | recording of a notice of commencement for improvements to the |
| 58 | premises and the notice includes the following: |
| 59 | a.(a) The name of the lessor. |
| 60 | b.(b) The legal description of the parcel of land to which |
| 61 | the notice applies. |
| 62 | c.(c) The specific language contained in the various |
| 63 | leases prohibiting such liability. |
| 64 | d.(d) A statement that all or a majority of the leases |
| 65 | entered into for premises on the parcel of land expressly |
| 66 | prohibit such liability contain the language identified in |
| 67 | paragraph (c). |
| 68 | (3) The lessee is a mobile home owner who is leasing a |
| 69 | mobile home lot in a mobile home park from the lessor. |
| 70 | (3) Any contractor or lienor under contract to furnish |
| 71 | labor, services, or materials for improvements being made by a |
| 72 | lessee may serve written demand on the lessor for a copy of the |
| 73 | provision in the lease prohibiting liability for improvements |
| 74 | made by the lessee, which copy shall be verified under s. |
| 75 | 92.525. The demand must identify the lessee and the premises |
| 76 | being improved and must be in a document that is separate from |
| 77 | the notice to the owner as provided in s. 713.06(2). The |
| 78 | interest of any lessor who does not serve a verified copy of the |
| 79 | lease provision within 30 days after demand, or who serves a |
| 80 | false or fraudulent copy, is subject to a lien under this part |
| 81 | by the contractor or lienor who made the demand if the |
| 82 | contractor or lienor is otherwise entitled to a lien under this |
| 83 | part and did not have actual or constructive notice that the |
| 84 | interest of the lessor was not subject to a lien for |
| 85 | improvements made by the lessee. The written demand must include |
| 86 | a warning in conspicuous type in substantially the following |
| 87 | form: |
| 88 | WARNING |
| 89 | YOUR FAILURE TO SERVE THE REQUESTED VERIFIED COPY |
| 90 | WITHIN 30 DAYS OR THE SERVICE OF A FALSE COPY MAY |
| 91 | RESULT IN YOUR PROPERTY BEING SUBJECT TO THE CLAIM OF |
| 92 | LIEN OF THE PERSON REQUESTING THE VERIFIED COPY. |
| 93 | Section 2. Paragraphs (a) and (d) of subsection (1) of |
| 94 | section 713.13, Florida Statutes, are amended to read: |
| 95 | 713.13 Notice of commencement.- |
| 96 | (1)(a) Except for an improvement that is exempt pursuant |
| 97 | to s. 713.02(5), an owner or the owner's authorized agent before |
| 98 | actually commencing to improve any real property, or |
| 99 | recommencing completion of any improvement after default or |
| 100 | abandonment, whether or not a project has a payment bond |
| 101 | complying with s. 713.23, shall record a notice of commencement |
| 102 | in the clerk's office and forthwith post either a certified copy |
| 103 | thereof or a notarized statement that the notice of commencement |
| 104 | has been filed for recording along with a copy thereof. The |
| 105 | notice of commencement shall contain the following information: |
| 106 | 1. A description sufficient for identification of the real |
| 107 | property to be improved. The description should include the |
| 108 | legal description of the property and also should include the |
| 109 | street address and tax folio number of the property if available |
| 110 | or, if there is no street address available, such additional |
| 111 | information as will describe the physical location of the real |
| 112 | property to be improved. |
| 113 | 2. A general description of the improvement. |
| 114 | 3. The name and address of the owner, the owner's interest |
| 115 | in the site of the improvement, and the name and address of the |
| 116 | fee simple titleholder, if other than such owner. A lessee who |
| 117 | contracts for the improvements is an owner as defined under s. |
| 118 | 713.01(23) and must be listed as the owner. |
| 119 | 4. The name and address of the contractor. |
| 120 | 5. The name and address of the surety on the payment bond |
| 121 | under s. 713.23, if any, and the amount of such bond. |
| 122 | 6. The name and address of any person making a loan for |
| 123 | the construction of the improvements. |
| 124 | 7. The name and address within the state of a person other |
| 125 | than himself or herself who may be designated by the owner as |
| 126 | the person upon whom notices or other documents may be served |
| 127 | under this part; and service upon the person so designated |
| 128 | constitutes service upon the owner. |
| 129 | (d) A notice of commencement must be in substantially the |
| 130 | following form: |
| 131 |
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| 132 | Permit No..... Tax Folio No..... |
| 133 | NOTICE OF COMMENCEMENT |
| 134 | State of.... |
| 135 | County of.... |
| 136 |
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| 137 | The undersigned hereby gives notice that improvement will be |
| 138 | made to certain real property, and in accordance with Chapter |
| 139 | 713, Florida Statutes, the following information is provided in |
| 140 | this Notice of Commencement. |
| 141 | 1. Description of property: ...(legal description of the |
| 142 | property, and street address if available).... |
| 143 | 2. General description of improvement:..... |
| 144 | 3. Owner information (A contracting party who is a lessee |
| 145 | is an owner as defined under section 713.01(23), Florida |
| 146 | Statutes, and must be listed here as the owner):..... |
| 147 | a. Name and address:..... |
| 148 | b. Interest in property:..... |
| 149 | c. Name and address of fee simple titleholder (if other |
| 150 | than Owner):..... |
| 151 | 4.a. Contractor: ...(name and address).... |
| 152 | b. Contractor's phone number:..... |
| 153 | 5. Surety |
| 154 | a. Name and address:..... |
| 155 | b. Phone number:..... |
| 156 | c. Amount of bond: $..... |
| 157 | 6.a. Lender: ...(name and address).... |
| 158 | b. Lender's phone number:..... |
| 159 | 7.a. Persons within the State of Florida designated by |
| 160 | Owner upon whom notices or other documents may be served as |
| 161 | provided by Section 713.13(1)(a)7., Florida Statutes: ...(name |
| 162 | and address).... |
| 163 | b. Phone numbers of designated persons:..... |
| 164 | 8.a. In addition to himself or herself, Owner designates |
| 165 | ............ of ............ to receive a copy of the Lienor's |
| 166 | Notice as provided in Section 713.13(1)(b), Florida Statutes. |
| 167 | b. Phone number of person or entity designated by |
| 168 | owner:..... |
| 169 | 9. Expiration date of notice of commencement (the |
| 170 | expiration date is 1 year from the date of recording unless a |
| 171 | different date is specified)..... |
| 172 |
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| 173 | WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE |
| 174 | EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER |
| 175 | PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA |
| 176 | STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS |
| 177 | TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND |
| 178 | POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU |
| 179 | INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN |
| 180 | ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF |
| 181 | COMMENCEMENT. |
| 182 |
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| 183 | ...(Signature of Owner or Owner's Authorized |
| 184 | Officer/Director/Partner/Manager/Lessee-a contracting party who |
| 185 | is a lessee meets the definition of owner under section |
| 186 | 713.01(23), Florida Statutes, and should sign here as the |
| 187 | owner)... |
| 188 | ...(Signatory's Title/Office)... |
| 189 |
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| 190 | The foregoing instrument was acknowledged before me this .... |
| 191 | day of ...., ...(year)..., by ...(name of person)... as ...(type |
| 192 | of authority, . . . e.g. officer, trustee, attorney in fact)... |
| 193 | for ...(name of party on behalf of whom instrument was |
| 194 | executed).... |
| 195 |
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| 196 | ...(Signature of Notary Public - State of Florida)... |
| 197 | ...(Print, Type, or Stamp Commissioned Name of Notary Public)... |
| 198 | Personally Known .... OR Produced Identification .... |
| 199 | Type of Identification Produced............ |
| 200 |
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| 201 | Verification pursuant to Section 92.525, Florida Statutes. |
| 202 |
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| 203 | Under penalties of perjury, I declare that I have read the |
| 204 | foregoing and that the facts stated in it are true to the best |
| 205 | of my knowledge and belief. |
| 206 |
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| 207 | ...(Signature of Natural Person Signing Above)... |
| 208 | Section 3. This act shall take effect October 1, 2011. |