Florida Senate - 2012 SB 1202
By Senator Bogdanoff
25-00695A-12 20121202__
1 A bill to be entitled
2 An act relating to construction liens and bonds;
3 amending s. 255.05, F.S.; requiring that the bond
4 number be stated on the first page of a payment and
5 performance bond relating to a public works
6 construction project; providing that a provision that
7 limits the effective duration of the bond is
8 unenforceable; requiring that a contractor serve a
9 notice of contest to a claimant against the bond;
10 extending the time period for a claimant to serve a
11 notice to contractor or a notice of nonpayment or to
12 file suit against the contractor or surety if the bond
13 is not recorded or if the claimant was not notified of
14 the existence of the bond in writing; requiring that a
15 claimant who is not in privity with a contractor serve
16 the notice of nonpayment on the contractor and the
17 surety; making organizational and technical changes;
18 amending s. 713.132, F.S.; requiring that an owner
19 serve a copy of a notice of termination on each lienor
20 who has a direct contract with the owner before a
21 notice of termination may take effect; amending s.
22 713.16, F.S.; requiring that an owner or contract
23 provide specified information sufficient for a lienor
24 to properly identify an account when a sworn statement
25 of account is requested; deleting a requirement that a
26 lienor have recorded a lien before the lienor may
27 demand an accounting from the owner; requiring that
28 the demand for an accounting which is served on the
29 owner include specified information sufficient for the
30 owner to identify the project in question; amending s.
31 713.18, F.S.; providing additional methods by which
32 certain items may be served; specifying the effective
33 date of the service of a notice that is served;
34 authorizing a person who serves an item to correct an
35 address under certain circumstances; amending s.
36 713.22, F.S.; requiring that the owner or owner’s
37 attorney serve a notice of contest of lien; amending
38 s. 713.23, F.S.; authorizing the use of a combined
39 notice to owner and notice to contractor form;
40 revising the format of the notice to contractor;
41 requiring that the contractor or the contractor’s
42 attorney serve the notice of contest; providing that a
43 provision of a payment bond which restricts the
44 classes of lienors and the effective duration of the
45 bond is unenforceable; requiring that the person who
46 records in the clerk’s office a notice of a transfer
47 of lien to a payment bond attach a copy of the bond;
48 requiring that the person recording the notice of bond
49 serve a copy of the notice along with a copy of the
50 bond; specifying the relationship of provisions
51 relating to payment bonds with other laws; making
52 technical changes; providing an effective date.
53
54 Be It Enacted by the Legislature of the State of Florida:
55
56 Section 1. Subsection (1), paragraph (a) of subsection (2),
57 and subsection (10) of section 255.05, Florida Statutes, are
58 amended to read:
59 255.05 Bond of contractor constructing public buildings;
60 form; action by materialmen.—
61 (1)(a) Any person entering into a formal contract with the
62 state or any county, municipality city, or political subdivision
63 thereof, or other public authority or private entity, for the
64 construction of a public building, for the prosecution and
65 completion of a public work, or for repairs upon a public
66 building or public work must shall be required, before
67 commencing the work or before recommencing the work after a
68 default or abandonment, to execute and, deliver to the public
69 owner, and record in the public records of the county where the
70 improvement is located, a payment and performance bond with a
71 surety insurer authorized to do business in this state as
72 surety.
73 (a) A public entity may not require a contractor to secure
74 a surety bond under this section from a specific agent or
75 bonding company.
76 (b) The payment and performance bond must state on its
77 front page: the name, principal business address, and phone
78 number of the contractor;, the surety and the bond number
79 assigned by the surety;, the owner of the property being
80 improved, and, if different from the owner, the contracting
81 public entity; the contract number assigned by the contracting
82 public entity; and a description of the project sufficient to
83 identify it, such as a legal description or the street address
84 of the property being improved, and a general description of the
85 improvement.
86 (c) The payment and performance Such bond shall be
87 conditioned upon the contractor’s performance of the
88 construction work in the time and manner prescribed in the
89 contract and upon the contractor’s prompt promptly making
90 payments to all persons defined as a lienor in s. 713.01 who
91 furnish labor, services, or materials for the prosecution of the
92 work provided for in the contract.
93 (d) The contractor shall record the payment and performance
94 bond upon issuance in the official records of the county in
95 which the public works will be located.
96 (e) Any claimant may apply to The governmental entity
97 having charge of the work shall provide a certified copy for
98 copies of the contract and of the bond to any claimant upon
99 request and shall thereupon be furnished with a certified copy
100 of the contract and bond. The claimant has shall have a right of
101 action against the contractor and surety for the amount due him
102 or her, including unpaid finance charges due under the
103 claimant’s contract. Such action may shall not involve the
104 public authority in any expense.
105 (f)1. A payment and performance bond is not required for a
106 contract with the state for $100,000 or less. When such work is
107 done for the state and the contract is for $100,000 or less, no
108 payment and performance bond shall be required.
109 2. At the discretion of The official or board awarding a
110 such contract when such work is done for a any county,
111 municipality city, political subdivision, or public authority
112 may exempt a contract, any person entering into such a contract
113 which is for $200,000 or less from the requirement for a may be
114 exempted from executing the payment and performance bond.
115 3. When such work is done for the state, The Secretary of
116 Management Services may delegate to a state agency agencies the
117 authority to exempt any person entering into such a contract for
118 amounting to more than $100,000 but less than $200,000 from the
119 requirement for a executing the payment and performance bond. If
120 In the event such exemption is granted, the officer or officials
121 are shall not be personally liable to a person who suffers a
122 persons suffering loss due to the because of granting such
123 exemption. The Department of Management Services shall maintain
124 information on the number of requests by state agencies for
125 delegation of authority to waive the bond requirements by agency
126 and project number and whether any request for delegation was
127 denied and the justification for the denial.
128 (g) The persons who may be protected by a payment and
129 performance bond for payments due to them for furnishing labor,
130 services, or materials for the prosecution of the work are
131 limited to those persons defined as a lienor in s. 713.01. A Any
132 provision of in a payment and performance bond furnished for a
133 public works contract work contracts as provided by this
134 subsection which further restricts the classes of persons as
135 defined in s. 713.01 protected by the bond or the venue of any
136 proceeding relating to such bond, or which limits the duration
137 of the bond, is unenforceable.
138 (h)(b) The Department of Management Services shall adopt
139 rules with respect to all contracts for $200,000 or less, to
140 provide:
141 1. Procedures for retaining up to 10 percent of each
142 request for payment submitted by a contractor and procedures for
143 determining disbursements from the amount retained on a pro rata
144 basis to laborers, materialmen, and subcontractors, as defined
145 in s. 713.01.
146 2. Procedures for requiring certification from laborers,
147 materialmen, and subcontractors, as defined in s. 713.01, before
148 prior to final payment to the contractor, that they do not that
149 such laborers, materialmen, and subcontractors have a claim no
150 claims against the contractor resulting from the completion of
151 the work provided for in the contract.
152
153 The state is shall not be held liable to any laborer,
154 materialman, or subcontractor for any amount amounts greater
155 than the pro rata share as determined under this section.
156 (i)(c)1. The amount of the bond shall equal the contract
157 price, except that for a contract in excess of $250 million, if
158 the state, county, municipality, political subdivision, or other
159 public entity finds that a bond in the amount of the contract
160 price is not reasonably available, the public owner shall set
161 the amount of the bond at the largest amount reasonably
162 available, but not less than $250 million.
163 2. For construction-management or design-build contracts,
164 if the public owner does not include in the bond amount the cost
165 of design or other nonconstruction services, the bond may not be
166 conditioned on performance of such services or payment to
167 persons furnishing such services. Notwithstanding paragraph (g)
168 (a), such a bond may exclude persons furnishing such services
169 from the classes of persons protected by the bond.
170 (2)(a)1. If a claimant is no longer furnishing labor,
171 services, or materials on a project, a contractor or the
172 contractor’s agent or attorney may elect to shorten the
173 prescribed time in this paragraph within which an action to
174 enforce any claim against a payment bond must provided pursuant
175 to this section may be commenced by recording in the clerk’s
176 office a notice in substantially the following form:
177 NOTICE OF CONTEST OF CLAIM
178 AGAINST PAYMENT BOND
179
180 To: ...(Name and address of claimant)...
181
182 You are notified that the undersigned contests your notice
183 of nonpayment, dated ............, ........, and served on the
184 undersigned on ............, ........, and that the time within
185 which you may file suit to enforce your claim is limited to 60
186 days after the date of service of this notice.
187
188 DATED on ............, .........
189
190 Signed:...(Contractor or Attorney)...
191
192 The claim of any claimant upon whom such notice is served and
193 who fails to institute a suit to enforce his or her claim
194 against the payment bond within 60 days after service of the
195 such notice is shall be extinguished automatically. The
196 contractor clerk shall serve mail a copy of the notice of
197 contest to the claimant at the address shown in the notice of
198 nonpayment or the most recent amendment thereto and shall
199 certify to such service on the face of the such notice and
200 record the notice. Service is complete upon mailing.
201 2.a. A claimant, except a laborer, who is not in privity
202 with the contractor must shall, before commencing or not later
203 than 45 days after commencing to furnish labor, services, or
204 materials for the prosecution of the work, serve furnish the
205 contractor with a written notice that he or she intends to look
206 to the bond for protection. If the payment bond is not recorded
207 before the commencement of construction or if the claimant was
208 not otherwise notified in writing of the existence of the bond,
209 the 45-day period runs from the date that the claimant is
210 notified in writing of the existence of the bond.
211 b. A claimant who is not in privity with the contractor and
212 who has not received payment for his or her labor, services, or
213 materials must serve on shall deliver to the contractor and to
214 the surety written notice of the performance of the labor or
215 services, or the delivery of the materials, or supplies and of
216 the nonpayment. Any notice of nonpayment served by a claimant
217 who is not in privity with the contractor which includes sums
218 for retainage must specify the portion of the amount claimed for
219 retainage. The notice of nonpayment must may be served at any
220 time during the progress of the work or thereafter but not
221 before 45 days after the first furnishing of labor, services, or
222 materials, and not later than 90 days after the final furnishing
223 of the labor, services, or materials by the claimant or, with
224 respect to rental equipment, not later than 90 days after the
225 date that the rental equipment was last on the job site
226 available for use. If the payment bond is not recorded before
227 the commencement of construction or if the claimant was not
228 otherwise notified in writing of the existence of the bond, the
229 time periods for serving a notice of nonpayment run from the
230 date that the claimant is notified in writing of the existence
231 of the bond. Any notice of nonpayment served by a claimant who
232 is not in privity with the contractor which includes sums for
233 retainage must specify the portion of the amount claimed for
234 retainage.
235 c. An No action for the labor, services, or materials, or
236 supplies may not be instituted against the contractor or the
237 surety unless the notice to the contractor and the notice of
238 nonpayment both notices have been given, if required by this
239 section. Service of all notices or other instruments required or
240 permitted under this section shall may be made served in
241 accordance with s. 713.18. A claimant may not waive in advance
242 his or her right to bring an action under the bond against the
243 surety. In any action brought to enforce a claim against a
244 payment bond under this section, the prevailing party is
245 entitled to recover a reasonable fee for the services of his or
246 her attorney for trial and appeal or for arbitration, in an
247 amount to be determined by the court, and the which fee must be
248 taxed as part of the prevailing party’s costs, as allowed in
249 equitable actions. The time periods for service of a notice of
250 nonpayment or for bringing an action against a contractor or a
251 surety shall be measured from the last day of furnishing labor,
252 services, or materials by the claimant and may shall not be
253 measured by other standards, such as the issuance of a
254 certificate of occupancy or the issuance of a certificate of
255 substantial completion.
256 (10)(a) An action, except an action for recovery of
257 retainage, must be instituted against the contractor or the
258 surety on the payment bond or the payment provisions of a
259 combined payment and performance bond within 1 year after the
260 performance of the labor or completion of delivery of the
261 materials or supplies. If the payment bond is not recorded
262 before the commencement of construction or if the claimant was
263 not otherwise notified in writing of the existence of the bond,
264 the 1-year period runs from the date that the claimant is
265 notified in writing of the existence of the bond.
266 (b) An action for recovery of retainage must be instituted
267 against the contractor or the surety within the 1-year period 1
268 year after the performance of the labor or completion of
269 delivery of the materials, as described in paragraph (a) or
270 supplies; however, such an action may not be instituted until
271 one of the following conditions is satisfied:
272 1.(a) The public entity has paid out the claimant’s
273 retainage to the contractor, and the time provided under s.
274 218.735 or s. 255.073(3) for payment of that retainage to the
275 claimant has expired.;
276 2.(b) The claimant has completed all work required under
277 its contract and 70 days have passed since the contractor sent
278 its final payment request to the public entity.; or
279 3.(c) At least 160 days have passed since reaching
280 substantial completion of the construction services purchased,
281 as defined in the contract, or if not defined in the contract,
282 since reaching beneficial occupancy or use of the project.
283 4.(d) The claimant has asked the contractor, in writing,
284 for any of the following information and the contractor has
285 failed to respond to the claimant’s request, in writing, within
286 10 days after receipt of the request:
287 a.1. Whether the project has reached substantial
288 completion, as that term is defined in the contract, or if not
289 defined in the contract, if beneficial occupancy or use of the
290 project has occurred.
291 b.2. Whether the contractor has received payment of the
292 claimant’s retainage, and if so, the date the retainage was
293 received by the contractor.
294 c.3. Whether the contractor has sent its final payment
295 request to the public entity, and if so, the date on which the
296 final payment request was sent.
297
298 If none of the conditions described in subparagraph 1.,
299 subparagraph 2., subparagraph 3., or subparagraph 4. paragraph
300 (a), paragraph (b), paragraph (c), or paragraph (d) is satisfied
301 and an action for recovery of retainage cannot be instituted
302 within the 1-year limitation period set forth in this
303 subsection, this limitation period shall be extended until 120
304 days after one of these conditions is satisfied.
305 Section 2. Section 713.132, Florida Statutes, is amended to
306 read:
307 713.132 Notice of termination.—
308 (1) An owner may terminate the period of effectiveness of a
309 notice of commencement by executing, swearing to, and recording
310 a notice of termination which that contains:
311 (a) The same information as the notice of commencement;
312 (b) The recording office document book and page reference
313 numbers and date of the notice of commencement;
314 (c) A statement of the date as of which the notice of
315 commencement is terminated, which date may not be earlier than
316 30 days after the notice of termination is recorded;
317 (d) A statement specifying that the notice applies to all
318 the real property subject to the notice of commencement or
319 specifying the portion of such real property to which it
320 applies;
321 (e) A statement that all lienors have been paid in full;
322 and
323 (f) A statement that the owner has, before recording the
324 notice of termination, served a copy of the notice of
325 termination on the contractor and on each lienor who has served
326 a notice to the owner or who has a direct contract with the
327 owner given notice. The owner is not required to serve a copy of
328 the notice of termination on any lienor who has executed a
329 waiver and release of lien upon final payment in accordance with
330 s. 713.20.
331 (2) An owner has the right to rely on a contractor’s
332 affidavit given under s. 713.06(3)(d), except with respect to
333 lienors who have already given notice, in connection with the
334 execution, swearing to, and recording of a notice of
335 termination. However, the notice of termination must be
336 accompanied by the contractor’s affidavit.
337 (3) An owner may not record a notice of termination except
338 after completion of construction, or after construction ceases
339 before completion and all lienors have been paid in full or pro
340 rata in accordance with s. 713.06(4). If an owner or a
341 contractor, by fraud or collusion, knowingly makes any
342 fraudulent statement or affidavit in a notice of termination or
343 any accompanying affidavit, the owner and the contractor, or
344 either of them, as the case may be, is liable to any lienor who
345 suffers damages as a result of the filing of the fraudulent
346 notice of termination; and any such lienor has a right of action
347 for damages occasioned thereby.
348 (4) A notice of termination is effective to terminate the
349 notice of commencement at the later of 30 days after recording
350 of the notice of termination or the date stated in the notice of
351 termination as the date on which the notice of commencement is
352 terminated, if provided that the notice of termination has been
353 served pursuant to paragraph (1)(f) on the contractor and on
354 each lienor who has served a notice to the owner or who has a
355 direct contract with the owner given notice.
356 Section 3. Section 713.16, Florida Statutes, is amended to
357 read:
358 713.16 Demand for copy of contract and statements of
359 account; form.—
360 (1) A copy of the contract of a lienor or owner and a
361 statement of the amount due or to become due if fixed or
362 ascertainable thereon must be furnished by any party thereto,
363 upon written demand of an owner or a lienor contracting with or
364 employed by the other party to such contract. If the owner or
365 lienor refuses or neglects to furnish a such copy of the
366 contract or the such statement, or willfully and falsely states
367 the amount due or to become due if fixed or ascertainable under
368 such contract, any person who suffers any detriment thereby has
369 a cause of action against the person refusing or neglecting to
370 furnish a copy of the contract or the statement the same or
371 willfully and falsely stating the amount due or to become due
372 for his or her damages sustained thereby. The information
373 contained in the such copy or statement furnished pursuant to a
374 such written demand is binding upon the owner or lienor
375 furnishing it unless actual notice of any modification is given
376 to the person demanding the copy or statement before such person
377 acts in good faith in reliance on it. The person demanding the
378 such documents must pay for the reproduction thereof,; and, if
379 the such person fails or refuses to do so, he or she is entitled
380 only to inspect the such documents at reasonable times and
381 places.
382 (2) The owner may serve in writing a demand of any lienor
383 for a written statement under oath of his or her account showing
384 the nature of the labor or services performed and to be
385 performed, if any, the materials furnished, the materials to be
386 furnished, if known, the amount paid on account to date, the
387 amount due, and the amount to become due, if known, as of the
388 date of the statement by the lienor. Any such demand to a lienor
389 must be served on the lienor at the address and to the attention
390 of any person who is designated to receive the demand in the
391 notice to owner served by such lienor and must include a
392 description of the project, including the names of the owner,
393 the contractor, and the lienor’s customer, as set forth in the
394 lienor’s notice to owner, sufficient for the lienor to properly
395 identify the account in question. The failure or refusal to
396 furnish the statement does not deprive the lienor of his or her
397 lien if the demand is not served at the address of the lienor or
398 directed to the attention of the person designated to receive
399 the demand in the notice to owner. The failure or refusal to
400 furnish the statement under oath within 30 days after the
401 demand, or the furnishing of a false or fraudulent statement,
402 deprives the person so failing or refusing to furnish such
403 statement of his or her lien. If the owner serves more than one
404 demand for statement of account on a lienor and none of the
405 information regarding the account has changed since the lienor’s
406 last response to a demand, the failure or refusal to furnish
407 such statement does not deprive the lienor of his or her lien.
408 The negligent inclusion or omission of any information deprives
409 the person of his or her lien to the extent the owner can
410 demonstrate prejudice from such act or omission by the lienor.
411 The failure to furnish a response to a demand for statement of
412 account does not affect the validity of any claim of lien being
413 enforced through a foreclosure case filed before prior to the
414 date the demand for statement is received by the lienor.
415 (3) A request for sworn statement of account must be in
416 substantially the following form:
417 REQUEST FOR SWORN STATEMENT OF ACCOUNT
418
419 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED
420 UNDER OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE
421 STATEMENT WILL RESULT IN THE LOSS OF YOUR LIEN.
422
423 To: ...(Lienor’s name and address)...
424
425 The undersigned hereby demands a written statement under oath of
426 his or her account showing the nature of the labor or services
427 performed and to be performed, if any, the materials furnished,
428 the materials to be furnished, if known, the amount paid on
429 account to date, the amount due, and the amount to become due,
430 if known, as of the date of the statement for the improvement of
431 real property identified as ......(property description).......
432 Name of contractor: .............
433 Name of the lienor’s customer (as specified in the lienor’s
434 Notice to Owner, if such notice has been served): .............
435 ...(signature and address of owner)...
436 ......(date of request for sworn statement of account)......
437 (4) If When a contractor has furnished a payment bond
438 pursuant to s. 713.23, he or she may, when an owner makes any
439 payment to the contractor or directly to a lienor and the
440 contractor has furnished a payment bond pursuant to s. 713.23,
441 the contractor may serve a written demand on any other lienor
442 for a written statement under oath of his or her account showing
443 the nature of the labor or services performed and to be
444 performed, if any, the materials furnished, the materials to be
445 furnished, if known, the amount paid on account to date, the
446 amount due, and the amount to become due, if known, as of the
447 date of the statement by the lienor. Any such demand to a lienor
448 must be served on the lienor at the address and to the attention
449 of any person who is designated to receive the demand in the
450 notice to contractor served by such lienor. The demand must
451 include a description of the project, the names of the owner,
452 the contractor, and the lienor’s customer, as set forth in the
453 lienor’s notice to contractor, sufficient for the lienor to
454 properly identify the account in question. The failure or
455 refusal to furnish the statement does not deprive the lienor of
456 his or her rights under the bond if the demand is not served at
457 the address of the lienor or directed to the attention of the
458 person designated to receive the demand in the notice to
459 contractor. The failure to furnish the statement within 30 days
460 after the demand, or the furnishing of a false or fraudulent
461 statement, deprives the person who fails to furnish the
462 statement, or who furnishes the false or fraudulent statement,
463 of his or her rights under the bond. If the contractor serves
464 more than one demand for statement of account on a lienor and
465 none of the information regarding the account has changed since
466 the lienor’s last response to a demand, the failure or refusal
467 to furnish such statement does not deprive the lienor of his or
468 her rights under the bond. The negligent inclusion or omission
469 of any information deprives the person of his or her rights
470 under the bond to the extent the contractor can demonstrate
471 prejudice from such act or omission by the lienor. The failure
472 to furnish a response to a demand for statement of account does
473 not affect the validity of any claim on the bond being enforced
474 in a lawsuit filed before prior to the date the demand for
475 statement of account is received by the lienor.
476 (5)(a) Any lienor who has recorded a claim of lien may
477 serve a make written demand on the owner for a written statement
478 under oath showing:
479 1. The amount of the direct contract under which the lien
480 was recorded;
481 2. The dates and amounts paid or to be paid by or on behalf
482 of the owner for all improvements described in the direct
483 contract;
484 3. The reasonable estimated costs of completing the direct
485 contract under which the lien was claimed pursuant to the scope
486 of the direct contract; and
487 4. If known, the actual cost of completion.
488 (b) Any owner who does not provide the statement within 30
489 days after demand, or who provides a false or fraudulent
490 statement, is not a prevailing party for purposes of an award of
491 attorney attorney’s fees under s. 713.29. The written demand
492 must include the following warning in conspicuous type in
493 substantially the following form:
494 WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT
495 WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL
496 RESULT IN THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY
497 ACTION TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING
498 THIS STATEMENT.
499 (6) Any written demand served on the owner must include a
500 description of the project, the names of the contractor and the
501 lienor’s customer, as set forth in the lienor’s notice to owner,
502 sufficient for the owner to properly identify the project in
503 question.
504 (7)(6) For purposes of this section, the term “information”
505 means the nature and quantity of the labor, services, and
506 materials furnished or to be furnished by a lienor and the
507 amount paid, the amount due, and the amount to become due on the
508 lienor’s account.
509 Section 4. Section 713.18, Florida Statutes, is amended to
510 read:
511 713.18 Manner of serving notices and other instruments.—
512 (1) Service of notices, claims of lien, affidavits,
513 assignments, and other instruments permitted or required under
514 this part, or copies thereof when so permitted or required,
515 unless otherwise specifically provided in this part, must be
516 made by one of the following methods:
517 (a) By actual delivery to the person to be served; if a
518 partnership, to one of the partners; if a corporation, to an
519 officer, director, managing agent, or business agent; or, if a
520 limited liability company, to a member or manager.
521 (b) By sending the same by common carrier delivery service
522 or by registered, global express guaranteed, or certified mail,
523 with postage or shipping prepaid, and or by overnight or second
524 day delivery with evidence of delivery, which may be in an
525 electronic format.
526 (c) If the method specified in paragraph (a) or paragraph
527 (b) cannot be accomplished, By posting on the site of the
528 improvement if service as provided by paragraph (a) or paragraph
529 (b) cannot be accomplished premises.
530 (2) Notwithstanding subsection (1), service of if a notice
531 to owner or, a notice to contractor under s. 255.05, s. 337.18,
532 or s. 713.23, or a preliminary notice under s. 255.05 is mailed
533 by registered or certified mail with postage prepaid to the
534 person to be served at any of the addresses set forth in
535 subsection (3) within 40 days after the date the lienor first
536 furnishes labor, services, or materials, service of that notice
537 is effective as of the date of mailing if:
538 (a) The notice is mailed by registered, global express
539 guaranteed, or certified mail, with postage or shipping prepaid,
540 to the person to be served at any of the addresses set forth in
541 subsection (3);
542 (b) The notice is mailed within 40 days after the date the
543 lienor first furnishes labor, services, or materials; and
544 (c)1. The person who served the notice maintains a
545 registered or certified mail log that shows the registered or
546 certified mail number issued by the United States Postal
547 Service, the name and address of the person served, and the date
548 stamp of the United States Postal Service confirming the date of
549 mailing; or if
550 2. The person who served the notice maintains electronic
551 tracking records generated through use of the United States
552 Postal Service Confirm service or a similar service containing
553 the postal tracking number, the name and address of the person
554 served, and verification of the date of receipt by the United
555 States Postal Service.
556 (3)(a) Service of If an instrument served pursuant to this
557 section is effective on the date of mailing if the instrument:
558 1. Is sent to the last address shown in the notice of
559 commencement or any amendment thereto or, in the absence of a
560 notice of commencement, to the last address shown in the
561 building permit application, or to the last known address of the
562 person to be served; and, is not received, but
563 2. Is returned as being “refused,” “moved, not
564 forwardable,” or “unclaimed,” or is otherwise not delivered or
565 deliverable through no fault of the person serving the
566 instrument item, then service is effective on the date the
567 instrument was sent.
568 (b) If the address shown in the notice of commencement or
569 any amendment thereto or, in the absence of a notice of
570 commencement, in the building permit application, is incomplete
571 for purposes of mailing or delivery, the person serving the item
572 may complete the address and properly format it according to the
573 United States Postal Service addressing standards using
574 information obtained from the property appraiser or another
575 public record or directory without affecting the validity of
576 service under this section.
577 (4) A notice served by a lienor on one owner or one partner
578 of a partnership owning the real property If the real property
579 is owned by more than one person or a partnership, a lienor may
580 serve any notices or other papers under this part on any one of
581 such owners or partners, and such notice is deemed notice to all
582 owners and partners.
583 Section 5. Section 713.22, Florida Statutes, is amended to
584 read:
585 713.22 Duration of lien.—
586 (1) A No lien provided by this part does not shall continue
587 for a longer period longer than 1 year after the claim of lien
588 has been recorded or 1 year after the recording of an amended
589 claim of lien which that shows a later date of final furnishing
590 of labor, services, or materials, unless within that time an
591 action to enforce the lien is commenced in a court of competent
592 jurisdiction. A lien that is continued beyond the 1-year period
593 The continuation of the lien effected by the commencement of an
594 the action is shall not enforceable be good against creditors or
595 subsequent purchasers for a valuable consideration and without
596 notice, unless a notice of lis pendens is recorded.
597 (2) An owner or the owner’s agent or attorney may elect to
598 shorten the time prescribed in subsection (1) within which to
599 commence an action to enforce any claim of lien or claim against
600 a bond or other security under s. 713.23 or s. 713.24 by
601 recording in the clerk’s office a notice in substantially the
602 following form:
603 NOTICE OF CONTEST OF LIEN
604 To: ...(Name and address of lienor)...
605 You are notified that the undersigned contests the claim of lien
606 filed by you on ...., ...(year)..., and recorded in .... Book
607 ...., Page ...., of the public records of .... County, Florida,
608 and that the time within which you may file suit to enforce your
609 lien is limited to 60 days from the date of service of this
610 notice. This .... day of ...., ...(year).....
611 Signed: ...(Owner or Attorney)...
612
613 The lien of any lienor upon whom such notice is served and
614 who fails to institute a suit to enforce his or her lien within
615 60 days after service of such notice shall be extinguished
616 automatically. The owner or the owner’s attorney clerk shall
617 serve mail a copy of the notice of contest to the lien claimant
618 at the address shown in the claim of lien or in the most recent
619 amendment thereto and shall certify to such service on the face
620 of the such notice and record the notice. Service shall be
621 deemed complete upon mailing.
622 Section 6. Paragraphs (c), (e), and (f) of subsection (1)
623 and subsections (2) and (4) of section 713.23, Florida Statutes,
624 are amended to read:
625 713.23 Payment bond.—
626 (1)
627 (c) Either Before beginning or within 45 days after
628 beginning to furnish labor or, materials, or supplies, a lienor
629 who is not in privity with the contractor, except a laborer,
630 shall serve the contractor with notice in writing that the
631 lienor will look to the contractor’s bond for protection on the
632 work. If a notice of commencement is not recorded, or a
633 reference to the bond is not given in the notice of
634 commencement, and in either case if the lienor not in privity
635 with the contractor is not otherwise notified in writing of the
636 existence of the bond, the lienor has not in privity with the
637 contractor shall have 45 days after from the date the lienor is
638 notified of the existence of the bond within which to serve the
639 notice. The notice may be in substantially the following form
640 and may be combined with a notice to owner given under s. 713.06
641 and, if so, may be entitled “NOTICE TO OWNER/NOTICE TO
642 CONTRACTOR”:
643
644 NOTICE TO CONTRACTOR
645
646 To ...(name and address of contractor)...
647
648 The undersigned hereby informs notifies you that he or she has
649 furnished or is furnishing services or materials as follows:
650 ...(General description of services or materials)... for the
651 improvement of the real property identified as ...(property
652 description)... owned by ...(owner’s name and address)... under
653 an order given by ............ and that the undersigned will
654 look to the contractor’s bond for protection on the work.
655
656 ... (name of lienor)...
657 ...(Signature of lienor or lienor’s representative signature and
658 address)...
659 ...(date)...
660 ...(lienor’s address)...
661
662 (e) An No action for the labor or materials or supplies may
663 not be instituted or prosecuted against the contractor or surety
664 unless the notice to contractor and the notice of nonpayment
665 both notices have been given, if required by this section. An No
666 action may not shall be instituted or prosecuted against the
667 contractor or against the surety on the bond under this section
668 after 1 year from the performance of the labor or completion of
669 delivery of the materials and supplies. The time period for
670 bringing an action against the contractor or surety on the bond
671 shall be measured from the last day of furnishing labor,
672 services, or materials by the lienor. The time period may and
673 shall not be measured by other standards, such as the issuance
674 of a certificate of occupancy or the issuance of a certificate
675 of substantial completion. A contractor or the contractor’s
676 agent or attorney may elect to shorten the prescribed time
677 within which an action to enforce any claim against a payment
678 bond provided under this section or s. 713.245 must may be
679 commenced at any time after a notice of nonpayment, if required,
680 has been served for the claim by recording in the clerk’s office
681 a notice in substantially the following form:
682 NOTICE OF CONTEST OF CLAIM
683 AGAINST PAYMENT BOND
684 To: ...(Name and address of lienor)...
685 You are notified that the undersigned contests your notice
686 of nonpayment, dated ...., ...., and served on the undersigned
687 on ...., ...., and that the time within which you may file suit
688 to enforce your claim is limited to 60 days from the date of
689 service of this notice.
690
691 DATED on ...., .....
692
693 Signed: ...(Contractor or Attorney)...
694
695 The claim of any lienor upon whom the notice is served and who
696 fails to institute a suit to enforce his or her claim against
697 the payment bond within 60 days after service of the notice
698 shall be extinguished automatically. The contractor clerk shall
699 serve mail a copy of the notice of contest to the lienor at the
700 address shown in the notice of nonpayment or in the most recent
701 amendment thereto and shall certify to such service on the face
702 of the notice and record the notice. Service is complete upon
703 mailing.
704 (f) Any lienor has a direct right of action on the bond
705 against the surety. A provision of a payment bond which further
706 restricts must not contain any provisions restricting the
707 classes of lienors persons protected by the payment bond thereby
708 or the venue of any proceeding relating to the payment bond or
709 which limits the effective duration of the payment bond, is
710 unenforceable. The surety is not entitled to the defense of pro
711 tanto discharge as against any lienor because of changes or
712 modifications in the contract to which the surety is not a
713 party; however, but the liability of the surety may not be
714 increased beyond the penal sum of the bond. A lienor may not
715 waive in advance his or her right to bring an action under the
716 bond against the surety.
717 (2) The bond shall secure every lien under the direct
718 contract accruing subsequent to its execution and delivery,
719 except that of the contractor. Every claim of lien, except that
720 of the contractor, filed subsequent to execution and delivery of
721 the bond shall be transferred to it with the same effect as
722 liens transferred under s. 713.24. Record notice of the transfer
723 shall be effected by the contractor, or any person having an
724 interest in the property against which the claim of lien has
725 been asserted, by recording in the clerk’s office a notice, with
726 a copy of the bond attached, in substantially the following
727 form:
728 NOTICE OF BOND
729
730 To ...(Name and Address of Lienor)...
731
732 You are notified that the claim of lien filed by you on ....,
733 ...., and recorded in Official Records Book .... at page .... of
734 the public records of .... County, Florida, is secured by a
735 bond, a copy being attached.
736
737 Signed: ...(Name of person recording notice)...
738
739 The notice shall be verified. The person recording the notice of
740 bond clerk shall serve mail a copy of the notice along with a
741 copy of the bond on to the lienor at the address shown in the
742 claim of lien, or the most recent amendment to it; shall certify
743 to the service on the face of the notice; and shall record the
744 notice. The clerk shall receive the same fee as prescribed in s.
745 713.24(1) for certifying to a transfer of lien.
746 (4) Section 713.24(3) applies The provisions of s.
747 713.24(3) shall apply to bonds under this section. However, this
748 section prevails in the event of a conflict with s. 713.24(3).
749 Section 7. This act shall take effect October 1, 2012.