Florida Senate - 2022 SB 1272
By Senator Bradley
5-00887A-22 20221272__
1 A bill to be entitled
2 An act relating to liens and bonds; amending s.
3 255.05, F.S.; revising when a notice of claim against
4 a payment bond and a notice of nonpayment must be
5 served; requiring that a copy of a notice of
6 nonpayment be served on the surety; revising when a
7 notice of nonpayment must be served; revising the
8 process for notarizing a notice of nonpayment;
9 removing the authority for a contractor to file an
10 alternative form of security rather than a bond;
11 requiring service of documents to be made in a
12 specified manner; conforming provisions to changes
13 made by the act; making technical changes; amending s.
14 337.18, F.S.; revising when a notice of nonpayment
15 must be served; providing that certain waivers apply
16 to certain contracts; requiring service of documents
17 to be made in a specified manner; conforming
18 provisions to changes made by the act; amending s.
19 713.01, F.S.; revising and defining terms; creating s.
20 713.011, F.S.; providing for the computation of time
21 when certain time periods fall on specified days or
22 during a declared state of emergency; providing that
23 certain orders constitute a state of emergency;
24 amending s. 713.09, F.S.; authorizing a lienor to
25 record one claim of lien for multiple direct
26 contracts; amending s. 713.10, F.S.; revising the
27 extent of certain liens; amending s. 713.13, F.S.;
28 revising information to be included in a notice of
29 commencement; conforming a cross-reference; revising
30 the process for notarizing a notice of commencement;
31 amending s. 713.132, F.S.; revising requirements for a
32 notice of termination; amending s. 713.135, F.S.;
33 defining the term “copy of the notice of
34 commencement”; making technical changes; providing
35 that an issuing authority is not liable for failing to
36 verify that specified information has been filed;
37 amending s. 713.18, F.S.; requiring service of
38 documents relating to construction bonds to be made in
39 a specified manner; making technical changes; amending
40 s. 713.21, F.S.; authorizing the full or partial
41 release of a lien under specified conditions; amending
42 s. 713.22, F.S.; revising the information required in
43 a notice of contest of lien; amending s. 713.23, F.S.;
44 requiring that a copy of a notice of nonpayment be
45 served on the surety; revising the process for
46 notarizing a notice of nonpayment under a payment
47 bond; conforming provisions to changes made by the
48 act; amending s. 713.235, F.S.; conforming cross
49 references; making technical changes; repealing s.
50 713.245, F.S., relating to conditional payment bonds;
51 repealing s. 713.25, F.S., relating to applicability
52 of ch. 65-456, Laws of Florida; amending s. 713.29,
53 F.S.; authorizing attorney fees in actions to enforce
54 a lien that has been transferred to security; amending
55 s. 95.11, F.S.; conforming cross-references; providing
56 an effective date.
57
58 Be It Enacted by the Legislature of the State of Florida:
59
60 Section 1. Present subsections (8) through (11) of section
61 255.05, Florida Statutes, are redesignated as subsections (7)
62 through (10), respectively, a new subsection (11) is added to
63 that section, and paragraph (a) of subsection (2) and present
64 subsections (6) and (7) are amended, to read:
65 255.05 Bond of contractor constructing public buildings;
66 form; action by claimants.—
67 (2)(a)1. If a claimant is no longer furnishing labor,
68 services, or materials on a project, a contractor or the
69 contractor’s agent or attorney may elect to shorten the time
70 within which an action to enforce any claim against a payment
71 bond must be commenced by recording in the clerk’s office a
72 notice in substantially the following form:
73
74 NOTICE OF CONTEST OF CLAIM
75 AGAINST PAYMENT BOND
76
77 To: ...(Name and address of claimant)...
78
79 You are notified that the undersigned contests your notice
80 of nonpayment, dated ............, ........, and served on the
81 undersigned on ............, ........, and that the time within
82 which you may file suit to enforce your claim is limited to 60
83 days after the date of service of this notice.
84
85 DATED on ............, .........
86
87 Signed: ...(Contractor or Attorney)...
88
89 The claim of a claimant upon whom such notice is served and who
90 fails to institute a suit to enforce his or her claim against
91 the payment bond within 60 days after service of such notice is
92 extinguished automatically. The contractor or the contractor’s
93 attorney shall serve a copy of the notice of contest on to the
94 claimant at the address shown in the notice of nonpayment or
95 most recent amendment thereto and shall certify to such service
96 on the face of the notice and record the notice.
97 2. A claimant, except a laborer, who is not in privity with
98 the contractor shall, before commencing or not later than 45
99 days after commencing to furnish labor, services, or materials
100 for the prosecution of the work, serve the contractor with a
101 written notice that he or she intends to look to the bond for
102 protection. If a certified copy of the recorded payment bond is
103 not provided before commencing work or before recommencing work
104 after a default or abandonment, as required under paragraph
105 (1)(b), then the claimant may serve the contractor with such
106 written notice up to 45 days after the date that the claimant is
107 served with a copy of the bond. A claimant who is not in privity
108 with the contractor and who has not received payment for
109 furnishing his or her labor, services, or materials shall serve
110 a written notice of nonpayment on the contractor and a copy of
111 the notice on the surety. The notice of nonpayment must shall be
112 under oath and served during the progress of the work or
113 thereafter but may not be served earlier than 45 days after the
114 first furnishing of labor, services, or materials by the
115 claimant or later than 90 days after the final furnishing of the
116 labor, services, or materials by the claimant or, with respect
117 to rental equipment, later than 90 days after the date that the
118 rental equipment was last on the job site of the improvement
119 available for use. Any notice of nonpayment served by a claimant
120 who is not in privity with the contractor which includes sums
121 for retainage must specify the portion of the amount claimed for
122 retainage. An action for the labor, services, or materials may
123 not be instituted against the contractor or the surety unless
124 the notice to the contractor and notice of nonpayment have been
125 served, if required by this section. Notices required or
126 permitted under this section must be served in accordance with
127 s. 713.18. A claimant may not waive in advance his or her right
128 to bring an action under the bond against the surety. In any
129 action brought to enforce a claim against a payment bond under
130 this section, the prevailing party is entitled to recover a
131 reasonable fee for the services of his or her attorney for trial
132 and appeal or for arbitration, in an amount to be determined by
133 the court or arbitrator, which fee must be taxed as part of the
134 prevailing party’s costs, as allowed in equitable actions. The
135 time periods for service of a notice of nonpayment or for
136 bringing an action against a contractor or a surety are shall be
137 measured from the last day of furnishing labor, services, or
138 materials by the claimant and may not be measured by other
139 standards, such as the issuance of a certificate of occupancy or
140 the issuance of a certificate of substantial completion. The
141 negligent inclusion or omission of any information in the notice
142 of nonpayment that has not prejudiced the contractor or surety
143 does not constitute a default that operates to defeat an
144 otherwise valid bond claim. A claimant who serves a fraudulent
145 notice of nonpayment forfeits his or her rights under the bond.
146 A notice of nonpayment is fraudulent if the claimant has
147 willfully exaggerated the amount unpaid, willfully included a
148 claim for work not performed or materials not furnished for the
149 subject improvement, or prepared the notice with such willful
150 and gross negligence as to amount to a willful exaggeration.
151 However, a minor mistake or error in a notice of nonpayment, or
152 a good faith dispute as to the amount unpaid, does not
153 constitute a willful exaggeration that operates to defeat an
154 otherwise valid claim against the bond. The service of a
155 fraudulent notice of nonpayment is a complete defense to the
156 claimant’s claim against the bond. The notice of nonpayment
157 under this subparagraph must include the following information,
158 current as of the date of the notice, and must be in
159 substantially the following form:
160
161 NOTICE OF NONPAYMENT
162
163 To: ...(name of contractor and address)...
164
165 ...(name of surety and address)...
166
167 The undersigned claimant notifies you that:
168 1. Claimant has furnished ...(describe labor, services, or
169 materials)... for the improvement of the real property
170 identified as ...(property description).... The corresponding
171 amount unpaid to date is $...., of which $.... is unpaid
172 retainage.
173 2. Claimant has been paid to date the amount of $.... for
174 previously furnishing ...(describe labor, services, or
175 materials)... for this improvement.
176 3. Claimant expects to furnish ...(describe labor,
177 services, or materials)... for this improvement in the future
178 (if known), and the corresponding amount expected to become due
179 is $.... (if known).
180
181 I declare that I have read the foregoing Notice of Nonpayment
182 and that the facts stated in it are true to the best of my
183 knowledge and belief.
184
185 DATED on ............, .........
186
187 ...(signature and address of claimant)...
188
189 STATE OF FLORIDA
190 COUNTY OF ........
191
192 The foregoing instrument was sworn to (or affirmed) and
193 subscribed before me by means of ☐ physical presence or sworn to
194 (or affirmed) by ☐ online notarization this .... day of ....,
195 ...(year)..., by ...(name of signatory)....
196
197 ...(Signature of Notary Public - State of Florida)...
198 ...(Print, Type, or Stamp Commissioned Name of Notary
199 Public)...
200
201 Personally Known ........ OR Produced Identification ........
202
203 Type of Identification Produced.................................
204
205 (6) All payment bond forms used by a public owner and all
206 payment bonds executed pursuant to this section by a surety
207 shall make reference to this section by number, shall contain
208 reference to the notice and time limitation provisions in
209 subsections (2) and (9) (10), and shall comply with the
210 requirements of paragraph (1)(a).
211 (7) In lieu of the bond required by this section, a
212 contractor may file with the state, county, city, or other
213 political authority an alternative form of security in the form
214 of cash, a money order, a certified check, a cashier’s check, an
215 irrevocable letter of credit, or a security of a type listed in
216 part II of chapter 625. Any such alternative form of security
217 shall be for the same purpose and be subject to the same
218 conditions as those applicable to the bond required by this
219 section. The determination of the value of an alternative form
220 of security shall be made by the appropriate state, county,
221 city, or other political subdivision.
222 (11) Unless otherwise provided in this section, service of
223 any document must be made in accordance with s. 713.18.
224 Section 2. Paragraph (c) of subsection (1) of section
225 337.18, Florida Statutes, is amended, and subsection (6) is
226 added to that section, to read:
227 337.18 Surety bonds for construction or maintenance
228 contracts; requirement with respect to contract award; bond
229 requirements; defaults; damage assessments.—
230 (1)
231 (c) A claimant, except a laborer, who is not in privity
232 with the contractor shall, before commencing or not later than
233 90 days after commencing to furnish labor, materials, or
234 supplies for the prosecution of the work, furnish the contractor
235 with a notice that he or she intends to look to the bond for
236 protection. A claimant who is not in privity with the contractor
237 and who has not received payment for his or her labor,
238 materials, or supplies shall deliver to the contractor and to
239 the surety written notice of the performance of the labor or
240 delivery of the materials or supplies and of the nonpayment. The
241 notice of nonpayment may be served at any time during the
242 progress of the work or thereafter but not before 45 days after
243 the first furnishing of labor, services, or materials, and not
244 later than 90 days after the final furnishing of the labor,
245 services, or materials by the claimant or, with respect to
246 rental equipment, not later than 90 days after the date that the
247 rental equipment was last on the job site of the improvement
248 available for use. An action by a claimant, except a laborer,
249 who is not in privity with the contractor for the labor,
250 materials, or supplies may not be instituted against the
251 contractor or the surety unless both notices have been given.
252 Written notices required or permitted under this section must
253 may be served in accordance with any manner provided in s.
254 713.18, and provisions for the waiver of a claim or a right to
255 claim against a payment bond as described in s. 713.235 apply to
256 all contracts under this section.
257 (6) Unless otherwise provided in this section, service of
258 any document must be made in accordance with s. 713.18.
259 Section 3. Present subsections (13) through (29) of section
260 713.01, Florida Statutes, are redesignated as subsections (14)
261 through (30), respectively, a new subsection (13) is added to
262 that section, and subsections (4), (8), and (12) of that section
263 are amended, to read:
264 713.01 Definitions.—As used in this part, the term:
265 (4) “Clerk’s office” means the office of the clerk of the
266 circuit court of the county, or another office serving as the
267 county recorder as provided by law, in which the real property
268 is located.
269 (8) “Contractor” means a person other than a materialman or
270 laborer who enters into a contract with the owner of real
271 property for improving it, or who takes over from a contractor
272 as so defined the entire remaining work under such contract. The
273 term “contractor” includes an architect, landscape architect, or
274 engineer who improves real property pursuant to a design-build
275 contract authorized by s. 489.103(16). The term also includes a
276 licensed general contractor or building contractor, as those
277 terms are defined in s. 489.105(3)(a) and (b), respectively, who
278 provides construction management services, which include
279 scheduling and coordinating both preconstruction and
280 construction phases for the successful, timely, and economical
281 completion of the construction project or who provides program
282 management services, which include schedule control, cost
283 control, and coordination in providing or procuring planning,
284 design, and construction.
285 (12) “Final furnishing” means the last date that the lienor
286 furnishes labor, services, or materials. Such date may not be
287 measured by other standards, such as the issuance of a
288 certificate of occupancy or the issuance of a certificate of
289 final completion, and does not include the correction of
290 deficiencies in the lienor’s previously performed work or
291 materials supplied. With respect to rental equipment, the term
292 means the date that the rental equipment was last on the job
293 site of the improvement and available for use. With respect to
294 specially fabricated materials, the term means the date that the
295 last portion of the specially fabricated materials is delivered
296 to the site of the improvement, or if any portion of the
297 specially fabricated materials is not delivered to the site of
298 the improvement by no fault of the lienor, the term means 9
299 months after the date the lienor completes the fabrication, 9
300 months after the date the lienor receives the last portion of
301 the specially fabricated materials needed to complete the order,
302 or the date the notice of commencement expires, whichever is
303 later.
304 (13) “Finance charge” means a contractually specified
305 additional amount to be paid by the obligor on any unpaid
306 balance if the obligor fails to pay the entire principal amount
307 to the obligee by the due date set forth in the credit agreement
308 or other contract.
309 Section 4. Section 713.011, Florida Statutes, is created to
310 read:
311 713.011 Computation of time.—
312 (1) In computing any time period under this part, if the
313 last day of the time period is a Saturday, Sunday, legal
314 holiday, or any day observed as a holiday by the clerk’s office,
315 the time period is extended to the end of the next business day.
316 (2) During a state of emergency declared under chapter 252
317 in which the clerk’s office is closed or not accessible because
318 of the state of emergency, any time periods imposed under this
319 part are tolled. Upon the expiration of the declared state of
320 emergency, the number of days that were remaining for any
321 specified time period under this part on the first day of the
322 declared state of emergency shall commence on the first business
323 day after the end of the declared state of emergency.
324 (3) A federal, state, or local governmental order closing
325 or directing the closure of the clerk’s office for any reason
326 constitutes a state of emergency for purposes of this section.
327 Section 5. Section 713.09, Florida Statutes, is amended to
328 read:
329 713.09 Single claim of lien.—A lienor may is required to
330 record only one claim of lien covering his or her entire demand
331 against the real property when the amount demanded is for labor
332 or services or material furnished for more than one improvement
333 under the same direct contract or multiple direct contracts. The
334 single claim of lien is sufficient even though the improvement
335 is for one or more improvements located on separate lots,
336 parcels, or tracts of land. If materials to be used on one or
337 more improvements on separate lots, parcels, or tracts of land
338 under one direct contract are delivered by a lienor to a place
339 designated by the person with whom the materialman contracted,
340 other than the site of the improvement, the delivery to the
341 place designated is prima facie evidence of delivery to the site
342 of the improvement and incorporation in the improvement. The
343 single claim of lien may be limited to a part of multiple lots,
344 parcels, or tracts of land and their improvements or may cover
345 all of the lots, parcels, or tracts of land and improvements. If
346 a In each claim of lien under this section is for multiple
347 direct contracts, the owner under the direct contracts contract
348 must be the same person for all lots, parcels, or tracts of land
349 against which a single claim of lien is recorded.
350 Section 6. Paragraph (b) of subsection (2) of section
351 713.10, Florida Statutes, is amended, and subsection (4) is
352 added to that section, to read:
353 713.10 Extent of liens.—
354 (2)
355 (b) The interest of the lessor is not subject to liens for
356 improvements made by the lessee when:
357 1. The lease, or a short form or a memorandum of the lease
358 that contains the specific language in the lease prohibiting
359 such liability, is recorded in the official records of the
360 county where the premises are located before the recording of a
361 notice of commencement for improvements to the premises and the
362 terms of the lease expressly prohibit such liability; or
363 2. The terms of the lease expressly prohibit such
364 liability, and a notice advising that leases for the rental of
365 premises on a parcel of land prohibit such liability has been
366 recorded in the official records of the county in which the
367 parcel of land is located before the recording of a notice of
368 commencement for improvements to the premises, and the notice
369 includes the following:
370 a. The name of the lessor.
371 b. The legal description of the parcel of land to which the
372 notice applies.
373 c. The specific language contained in the various leases
374 prohibiting such liability.
375 d. A statement that all or a majority of the leases entered
376 into for premises on the parcel of land expressly prohibit such
377 liability.
378 3. The lessee is a mobile home owner who is leasing a
379 mobile home lot in a mobile home park from the lessor.
380
381 A notice that is consistent with subparagraph 2. effectively
382 prohibits liens for improvements made by a lessee even if other
383 leases for premises on the parcel do not expressly prohibit
384 liens or if provisions of each lease restricting the application
385 of liens are not identical.
386 (4) The interest of the lessor is not subject to liens for
387 improvements made by the lessee when the lessee is a mobile home
388 owner who is leasing a mobile home lot in a mobile home park
389 from the lessor.
390 Section 7. Paragraphs (a) and (d) of subsection (1) of
391 section 713.13, Florida Statutes, are amended to read:
392 713.13 Notice of commencement.—
393 (1)(a) Except for an improvement that is exempt under
394 pursuant to s. 713.02(5), an owner or the owner’s authorized
395 agent before actually commencing to improve any real property,
396 or recommencing completion of any improvement after default or
397 abandonment, whether or not a project has a payment bond
398 complying with s. 713.23, shall record a notice of commencement
399 in the clerk’s office and forthwith post either a certified copy
400 thereof or a notarized statement that the notice of commencement
401 has been filed for recording along with a copy thereof. The
402 notice of commencement shall contain all of the following
403 information:
404 1. A description sufficient for identification of the real
405 property to be improved. The description should include the
406 legal description of the property and also should include the
407 street address and tax folio number of the property if available
408 or, if there is no street address available, such additional
409 information as will describe the physical location of the real
410 property to be improved.
411 2. A general description of the improvement.
412 3. The name and address of the owner, the owner’s interest
413 in the site of the improvement, and the name and address of the
414 fee simple titleholder, if other than such owner.
415 4. The name and address of the lessee, if the A lessee who
416 contracts for the improvements as is an owner as defined in s.
417 713.01 under s. 713.01(23) and must be listed as the owner
418 together with a statement that the ownership interest is a
419 leasehold interest.
420 5.4. The name and address of the contractor.
421 6.5. The name and address of the surety on the payment bond
422 under s. 713.23, if any, and the amount of such bond.
423 7.6. The name and address of any person making a loan for
424 the construction of the improvements.
425 8.7. The name and address within the state of a person
426 other than himself or herself who may be designated by the owner
427 as the person upon whom notices or other documents may be served
428 under this part; and service upon the person so designated
429 constitutes service upon the owner.
430 (d) A notice of commencement must be in substantially the
431 following form:
432
433 Permit No..... Tax Folio No.....
434 NOTICE OF COMMENCEMENT
435 State of....
436 County of....
437
438 The undersigned hereby gives notice that improvement will be
439 made to certain real property, and in accordance with Chapter
440 713, Florida Statutes, the following information is provided in
441 this Notice of Commencement.
442 1. Description of property: ...(legal description of the
443 property, and street address if available)....
444 2. General description of improvement:.....
445 3.a. Owner: ...name and address.....
446 b. Owner’s phone number:.... Owner information or Lessee
447 information if the Lessee contracted for the improvement:
448 a. Name and address:.....
449 c.b. Interest in property:.....
450 d.c. Name and address of fee simple titleholder (if
451 different from Owner listed above):.....
452 4.a. Lessee, if the lessee contracted for the improvement:
453 ...(name and address)....
454 b. Lessee’s phone number:.....
455 5.a. Contractor: ...(name and address)....
456 b. Contractor’s phone number:.....
457 6.5. Surety (if applicable, a copy of the payment bond is
458 attached):
459 a. Name and address:.....
460 b. Phone number:.....
461 c. Amount of bond: $.....
462 7.a.6.a. Lender: ...(name and address)....
463 b. Lender’s phone number:.....
464 8.7. Persons within the State of Florida designated by
465 Owner upon whom notices or other documents may be served as
466 provided by Section 713.13(1)(a)8. 713.13(1)(a)7., Florida
467 Statutes:
468 a. Name and address:.....
469 b. Phone numbers of designated persons:.....
470 9.a.8.a. In addition to himself or herself, Owner
471 designates ............ of ............ to receive a copy of the
472 Lienor’s Notice as provided in Section 713.13(1)(b), Florida
473 Statutes.
474 b. Phone number of person or entity designated by
475 owner:.....
476 10.9. Expiration date of notice of commencement (the
477 expiration date will be 1 year after from the date of recording
478 unless a different date is specified).....
479
480 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
481 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
482 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
483 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
484 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
485 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
486 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
487 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
488 COMMENCEMENT.
489
490 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
491 Authorized Officer/Director/Partner/Manager)...
492
493 ...(Signatory’s Title/Office)...
494
495 The foregoing instrument was acknowledged before me by means of
496 ☐ physical presence or acknowledged before me by means of ☐
497 online notarization, this .... day of ...., ...(year)..., by
498 ...(name of person)... as ...(type of authority, . . . e.g.
499 officer, trustee, attorney in fact)... for ...(name of party on
500 behalf of whom instrument was executed)....
501
502 ...(Signature of Notary Public - State of Florida)...
503
504 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
505
506 Personally Known .... OR Produced Identification ....
507
508 Type of Identification Produced............
509 Section 8. Present subsection (4) of section 713.132,
510 Florida Statutes, is redesignated as subsection (5) and amended,
511 a new subsection (4) is added to that section, and subsections
512 (1) and (3) of that section are amended, to read:
513 713.132 Notice of termination.—
514 (1) An owner may terminate the period of effectiveness of a
515 notice of commencement by executing, swearing to, and recording
516 a notice of termination that contains all of the following:
517 (a) The same information as the notice of commencement.;
518 (b) The official records’ recording office document book
519 and page reference numbers and recording date affixed by the
520 recording office on of the recorded notice of commencement.;
521 (c) A statement of the date as of which the notice of
522 commencement is terminated, which date may not be earlier than
523 30 days after the notice of termination is recorded.;
524 (d) A statement specifying that the notice applies to all
525 the real property subject to the notice of commencement or
526 specifying the portion of such real property to which it
527 applies.;
528 (e) A statement that all lienors have been paid in full.;
529 and
530 (f) A statement that the owner has, before recording the
531 notice of termination, served a copy of the notice of
532 termination on the contractor and on each lienor who has a
533 direct contract with the owner or who has timely served a notice
534 to owner, and a statement that the owner will serve a copy of
535 the notice of termination on each lienor who timely serves a
536 notice to owner after the notice of termination has been
537 recorded. The owner is not required to serve a copy of the
538 notice of termination on any lienor who has executed a waiver
539 and release of lien upon final payment in accordance with s.
540 713.20.
541 (3) An owner may not record a notice of termination at any
542 time after except after completion of construction, or after
543 construction ceases before completion and all lienors have been
544 paid in full or pro rata in accordance with s. 713.06(4).
545 (4) If an owner or a contractor, by fraud or collusion,
546 knowingly makes any fraudulent statement or affidavit in a
547 notice of termination or any accompanying affidavit, the owner
548 and the contractor, or either of them, as the case may be, is
549 liable to any lienor who suffers damages as a result of the
550 filing of the fraudulent notice of termination,; and any such
551 lienor has a right of action for damages occasioned thereby.
552 (5)(4) A notice of termination must be served before
553 recording on each lienor who has a direct contract with the
554 owner and on each lienor who has timely and properly served a
555 notice to owner in accordance with this part before the
556 recording of the notice of termination. A notice of termination
557 must be recorded in the official records of the county in which
558 the improvement is located. If properly served before recording
559 in accordance with this subsection, the notice of termination
560 terminates the period of effectiveness of the notice of
561 commencement 30 days after the notice of termination is recorded
562 in the official records is effective to terminate the notice of
563 commencement at the later of 30 days after recording of the
564 notice of termination or a later the date stated in the notice
565 of termination as the date on which the notice of commencement
566 is terminated. However, if a lienor who began work under the
567 notice of commencement before its termination lacks a direct
568 contract with the owner and timely serves his or her notice to
569 owner after the notice of termination has been recorded, the
570 owner must serve a copy of the notice of termination upon such
571 lienor, and the termination of the notice of commencement as to
572 that lienor is effective 30 days after service of the notice of
573 termination if the notice of termination has been served
574 pursuant to paragraph (1)(f) on the contractor and on each
575 lienor who has a direct contract with the owner or who has
576 served a notice to owner.
577 Section 9. Subsections (1) and (3) of section 713.135,
578 Florida Statutes, are amended to read:
579 713.135 Notice of commencement and applicability of lien.—
580 (1) When a any person applies for a building permit, the
581 authority issuing such permit shall:
582 (a) Print on the face of each permit card in no less than
583 14-point, capitalized, boldfaced type: “WARNING TO OWNER: YOUR
584 FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR
585 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF
586 COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE BEFORE
587 THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT
588 WITH YOUR LENDER OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF
589 COMMENCEMENT.”
590 (b) Provide the applicant and the owner of the real
591 property upon which improvements are to be constructed with a
592 printed statement stating that the right, title, and interest of
593 the person who has contracted for the improvement may be subject
594 to attachment under the Construction Lien Law. The Department of
595 Business and Professional Regulation shall furnish, for
596 distribution, the statement described in this paragraph, and the
597 statement must be a summary of the Construction Lien Law and
598 must include an explanation of the provisions of the
599 Construction Lien Law relating to the recording, and the posting
600 of copies, of notices of commencement and a statement
601 encouraging the owner to record a notice of commencement and
602 post a copy of the notice of commencement in accordance with s.
603 713.13. The statement must also contain an explanation of the
604 owner’s rights if a lienor fails to furnish the owner with a
605 notice as provided in s. 713.06(2) and an explanation of the
606 owner’s rights as provided in s. 713.22. The authority that
607 issues the building permit must obtain from the Department of
608 Business and Professional Regulation the statement required by
609 this paragraph and must mail, deliver by electronic mail or
610 other electronic format or facsimile, or personally deliver that
611 statement to the owner or, in a case in which the owner is
612 required to personally appear to obtain the permit, provide that
613 statement to any owner making improvements to real property
614 consisting of a single or multiple family dwelling up to and
615 including four units. However, the failure by the authorities to
616 provide the summary does not subject the issuing authority to
617 liability.
618 (c) In addition to providing the owner with the statement
619 as required by paragraph (b), inform each applicant who is not
620 the person whose right, title, and interest is subject to
621 attachment that, as a condition to the issuance of a building
622 permit, the applicant must promise in good faith that the
623 statement will be delivered to the person whose property is
624 subject to attachment.
625 (d) Furnish to the applicant two or more copies of a form
626 of notice of commencement conforming with s. 713.13.
627 (e) Require If the direct contract is greater than $2,500,
628 the applicant to shall file with the issuing authority before
629 prior to the first inspection either a certified copy of the
630 recorded notice of commencement if the direct contract is
631 greater than $2,500. For purposes of this paragraph, the term
632 “copy of the notice of commencement” means a certified copy of
633 the recorded notice of commencement, or a notarized statement
634 that the notice of commencement has been filed for recording,
635 along with a copy thereof, or the clerk’s office official
636 records identifying information that includes the instrument
637 number for the notice of commencement or the number and page of
638 book where the notice of commencement is recorded, as identified
639 by the clerk.
640 1. In the absence of the filing of a certified copy of the
641 recorded notice of commencement, the issuing authority or a
642 private provider performing inspection services may not perform
643 or approve subsequent inspections until the applicant files by
644 mail, facsimile, hand delivery, or any other means such
645 certified copy with the issuing authority.
646 2. The certified copy of the notice of commencement must
647 contain the name and address of the owner, the name and address
648 of the contractor, and the location or address of the property
649 being improved. The issuing authority shall verify that the name
650 and address of the owner, the name of the contractor, and the
651 location or address of the property being improved which is
652 contained in the certified copy of the notice of commencement is
653 consistent with the information in the building permit
654 application.
655 3. The issuing authority shall provide the recording
656 information on the certified copy of the recorded notice of
657 commencement to any person upon request.
658 4. This subsection does not require the recording of a
659 notice of commencement before prior to the issuance of a
660 building permit. If a local government requires a separate
661 permit or inspection for installation of temporary electrical
662 service or other temporary utility service, land clearing, or
663 other preliminary site work, such permits may be issued and such
664 inspections may be conducted without providing the issuing
665 authority with a certified copy of the a recorded notice of
666 commencement or a notarized statement regarding a recorded
667 notice of commencement. This subsection does not apply to a
668 direct contract to repair or replace an existing heating or air
669 conditioning system in an amount less than $7,500.
670 (f)(e) Not require that a notice of commencement be
671 recorded as a condition of the application for, or processing or
672 issuance of, a building permit. However, this paragraph does not
673 modify or waive the inspection requirements set forth in this
674 subsection.
675
676 This subsection does not apply to a direct contract to repair or
677 replace an existing heating or air-conditioning system in an
678 amount less than $7,500.
679 (3) An issuing authority under subsection (1) is not liable
680 in any civil action for the failure to verify that a certified
681 copy of the recorded notice of commencement, a notarized
682 statement that the notice of commencement has been filed for
683 recording along with a copy thereof, or the clerk’s office
684 official records identifying information that includes the
685 instrument number for the notice of commencement or the number
686 and page of book where the notice of commencement is recorded,
687 as identified by the clerk, has been filed in accordance with
688 this section.
689 Section 10. Section 713.18, Florida Statutes, is amended to
690 read:
691 713.18 Manner of serving documents notices and other
692 instruments.—
693 (1) Unless otherwise specifically provided by law, service
694 of any document notices, claims of lien, affidavits,
695 assignments, and other instruments permitted or required under
696 this part, s. 255.05, or s. 337.18, or copies thereof when so
697 permitted or required, unless otherwise specifically provided in
698 this part, must be made by one of the following methods:
699 (a) By hand actual delivery to the person to be served; if
700 a partnership, to one of the partners; if a corporation, to an
701 officer, director, managing agent, or business agent; or, if a
702 limited liability company, to a member or manager.
703 (b) By common carrier delivery service or by registered,
704 Global Express Guaranteed, or certified mail to the person to be
705 served, with postage or shipping paid by the sender and with
706 evidence of delivery, which may be in an electronic format.
707 (c) By posting on the site of the improvement if service as
708 provided by paragraph (a) or paragraph (b) cannot be
709 accomplished.
710 (2) Notwithstanding subsection (1), service of a notice to
711 owner or a preliminary notice to contractor under this part, s.
712 255.05, or s. 337.18, or s. 713.23 is effective as of the date
713 of mailing and the requirements for service under this section
714 have been satisfied if all of the following requirements have
715 been met:
716 (a) The notice is mailed by registered, Global Express
717 Guaranteed, or certified mail, with postage prepaid, to the
718 person to be served and addressed as prescribed at any of the
719 addresses set forth in subsection (3).;
720 (b) The notice is mailed within 40 days after the date the
721 lienor first furnishes labor, services, or materials.; and
722 (c)1. The person who served the notice maintains a
723 registered or certified mail log that shows the registered or
724 certified mail number issued by the United States Postal
725 Service, the name and address of the person served, and the date
726 stamp of the United States Postal Service confirming the date of
727 mailing; or
728 2. The person who served the notice maintains electronic
729 tracking records approved or generated by the United States
730 Postal Service containing the postal tracking number, the name
731 and address of the person served, and verification of the date
732 of receipt by the United States Postal Service.
733 (3)(a) Notwithstanding subsection (1), service of a
734 document under an instrument pursuant to this section is
735 effective on the date of mailing or shipping, and the
736 requirements for service under this section have been satisfied,
737 the instrument if the document it:
738 1. Is sent to the last address shown in the notice of
739 commencement or any amendment thereto or, in the absence of a
740 notice of commencement, to the last address shown in the
741 building permit application, or to the last known address of the
742 person to be served.; and
743 2. Is returned as being “refused,” “moved, not
744 forwardable,” or “unclaimed,” or is otherwise not delivered or
745 deliverable through no fault of the person serving the document
746 item.
747 (b) If the address shown in the notice of commencement or
748 any amendment thereto to the notice of commencement, or, in the
749 absence of a notice of commencement, in the building permit
750 application, is incomplete for purposes of mailing or delivery,
751 the person serving the document item may complete the address
752 and properly format it according to United States Postal Service
753 addressing standards using information obtained from the
754 property appraiser or another public record without affecting
755 the validity of service under this section.
756 (4) A document notice served by a lienor on one owner or
757 one partner of a partnership owning the real property is deemed
758 served on notice to all owners and partners.
759 Section 11. Section 713.21, Florida Statutes, is amended to
760 read:
761 713.21 Discharge of lien.—A lien properly perfected under
762 this chapter may be discharged, or released in whole or in part,
763 by any of the following methods:
764 (1) By entering satisfaction of the lien upon the margin of
765 the record thereof in the clerk’s office when not otherwise
766 prohibited by law. This satisfaction shall be signed by the
767 lienor, the lienor’s agent or attorney and attested by said
768 clerk. Any person who executes a claim of lien has shall have
769 authority to execute a satisfaction in the absence of actual
770 notice of lack of authority to any person relying on the same.
771 (2) By the satisfaction or release of the lienor, duly
772 acknowledged and recorded in the clerk’s office. The
773 satisfaction or release must include the lienor’s notarized
774 signature and set forth the official records’ reference numbers
775 and recording date affixed by the recording office on the
776 subject lien. Any person who executes a claim of lien has shall
777 have authority to execute a satisfaction or release in the
778 absence of actual notice of lack of authority to any person
779 relying on the same.
780 (3) By failure to begin an action to enforce the lien
781 within the time prescribed in this part.
782 (4) By an order of the circuit court of the county where
783 the property is located, as provided in this subsection. Upon
784 filing a complaint therefor by any interested party the clerk
785 shall issue a summons to the lienor to show cause within 20 days
786 why his or her lien should not be enforced by action or vacated
787 and canceled of record. Upon failure of the lienor to show cause
788 why his or her lien should not be enforced or the lienor’s
789 failure to commence such action before the return date of the
790 summons the court shall forthwith order cancellation of the
791 lien.
792 (5) By recording in the clerk’s office the original or a
793 certified copy of a judgment or decree of a court of competent
794 jurisdiction showing a final determination of the action.
795 Section 12. Subsection (2) of section 713.22, Florida
796 Statutes, is amended to read:
797 713.22 Duration of lien.—
798 (2) An owner or the owner’s attorney may elect to shorten
799 the time prescribed in subsection (1) within which to commence
800 an action to enforce any claim of lien or claim against a bond
801 or other security under s. 713.23 or s. 713.24 by recording in
802 the clerk’s office a notice in substantially the following form:
803
804 NOTICE OF CONTEST OF LIEN
805 To: ...(Name and address of lienor)...
806
807 You are notified that the undersigned contests the claim of lien
808 filed by you on ...., ...(year)..., and recorded in .... Book
809 ...., Page ...., of the public records of .... County, Florida,
810 and that the time within which you may file suit to enforce your
811 lien is limited to 60 days from the date of service of this
812 notice. This .... day of ...., ...(year)....
813
814 Signed: ...(Owner or Attorney)...
815
816 The lien of any lienor upon whom such recorded notice is served
817 and who fails to institute a suit to enforce his or her lien
818 within 60 days after service of such recorded notice shall be
819 extinguished automatically. The clerk shall serve, in accordance
820 with s. 713.18, a copy of the recorded notice of contest to the
821 lien claimant at the address shown in the claim of lien or most
822 recent amendment thereto and shall certify to such service and
823 the date of service on the face of the notice and record the
824 notice.
825 Section 13. Paragraphs (d) and (e) of subsection (1) of
826 section 713.23, Florida Statutes, are amended to read:
827 713.23 Payment bond.—
828 (1)
829 (d) In addition, a lienor who has not received payment for
830 furnishing his or her labor, services, or materials must, as a
831 condition precedent to recovery under the bond, serve a written
832 notice of nonpayment on to the contractor and a copy of the
833 notice on the surety. The notice must be under oath and served
834 during the progress of the work or thereafter, but may not be
835 served later than 90 days after the final furnishing of labor,
836 services, or materials by the lienor, or, with respect to rental
837 equipment, later than 90 days after the date the rental
838 equipment was on the job site of the improvement and available
839 for use. A notice of nonpayment that includes sums for retainage
840 must specify the portion of the amount claimed for retainage.
841 The required notice satisfies this condition precedent with
842 respect to the payment described in the notice of nonpayment,
843 including unpaid finance charges due under the lienor’s
844 contract, and with respect to any other payments which become
845 due to the lienor after the date of the notice of nonpayment.
846 The time period for serving a notice of nonpayment is shall be
847 measured from the last day of furnishing labor, services, or
848 materials by the lienor and may not be measured by other
849 standards, such as the issuance of a certificate of occupancy or
850 the issuance of a certificate of substantial completion. The
851 failure of a lienor to receive retainage sums not in excess of
852 10 percent of the value of labor, services, or materials
853 furnished by the lienor is not considered a nonpayment requiring
854 the service of the notice provided under this paragraph. If the
855 payment bond is not recorded before commencement of
856 construction, the time period for the lienor to serve a notice
857 of nonpayment may, at the option of the lienor, be calculated
858 from the date specified in this section or the date the lienor
859 is served a copy of the bond. However, the limitation period for
860 commencement of an action on the payment bond as established in
861 paragraph (e) may not be expanded. The negligent inclusion or
862 omission of any information in the notice of nonpayment that has
863 not prejudiced the contractor or surety does not constitute a
864 default that operates to defeat an otherwise valid bond claim. A
865 lienor who serves a fraudulent notice of nonpayment forfeits his
866 or her rights under the bond. A notice of nonpayment is
867 fraudulent if the lienor has willfully exaggerated the amount
868 unpaid, willfully included a claim for work not performed or
869 materials not furnished for the subject improvement, or prepared
870 the notice with such willful and gross negligence as to amount
871 to a willful exaggeration. However, a minor mistake or error in
872 a notice of nonpayment, or a good faith dispute as to the amount
873 unpaid, does not constitute a willful exaggeration that operates
874 to defeat an otherwise valid claim against the bond. The service
875 of a fraudulent notice of nonpayment is a complete defense to
876 the lienor’s claim against the bond. The notice under this
877 paragraph must include the following information, current as of
878 the date of the notice, and must be in substantially the
879 following form:
880
881 NOTICE OF NONPAYMENT
882
883 To ...(name of contractor and address)...
884
885 ...(name of surety and address)...
886
887 The undersigned lienor notifies you that:
888
889 1. The lienor has furnished ...(describe labor, services,
890 or materials)... for the improvement of the real property
891 identified as ...(property description).... The corresponding
892 amount unpaid to date is $...., of which $.... is unpaid
893 retainage.
894 2. The lienor has been paid to date the amount of $.... for
895 previously furnishing ...(describe labor, services, or
896 materials)... for this improvement.
897 3. The lienor expects to furnish ...(describe labor,
898 services, or materials)... for this improvement in the future
899 (if known), and the corresponding amount expected to become due
900 is $.... (if known).
901
902 I declare that I have read the foregoing Notice of Nonpayment
903 and that the facts stated in it are true to the best of my
904 knowledge and belief.
905
906 DATED on ............, .........
907
908 ...(signature and address of lienor)...
909
910 STATE OF FLORIDA
911 COUNTY OF........
912
913 The foregoing instrument was sworn to (or affirmed) and
914 subscribed before me by means of ☐ physical presence or sworn to
915 (or affirmed) by ☐ online notarization, this .... day of ....,
916 ...(year)..., by ...(name of signatory)....
917 ...(Signature of Notary Public - State of Florida)...
918 ...(Print, Type, or Stamp Commissioned Name of Notary
919 Public)...
920
921 Personally Known ........ OR Produced Identification ........
922
923 Type of Identification Produced.................................
924 (e) An action for the labor, or materials, or supplies may
925 not be instituted or prosecuted against the contractor or surety
926 unless both notices have been given, if required by this
927 section. An action may not be instituted or prosecuted against
928 the contractor or against the surety on the bond under this
929 section after 1 year from the performance of the labor or
930 completion of delivery of the materials and supplies. The time
931 period for bringing an action against the contractor or surety
932 on the bond is shall be measured from the last day of furnishing
933 labor, services, or materials by the lienor. The time period may
934 not be measured by other standards, such as the issuance of a
935 certificate of occupancy or the issuance of a certificate of
936 substantial completion. A contractor or the contractor’s
937 attorney may elect to shorten the time within which an action to
938 enforce any claim against a payment bond provided under this
939 section or s. 713.245 must be commenced at any time after a
940 notice of nonpayment, if required, has been served for the claim
941 by recording in the clerk’s office a notice in substantially the
942 following form:
943
944 NOTICE OF CONTEST OF CLAIM
945 AGAINST PAYMENT BOND
946
947 To: ...(Name and address of lienor)...
948 You are notified that the undersigned contests your notice
949 of nonpayment, dated ...., ...., and served on the undersigned
950 on ...., ...., and that the time within which you may file suit
951 to enforce your claim is limited to 60 days after from the date
952 of service of this notice.
953
954 DATED on ...., .....
955
956 Signed: ...(Contractor or Attorney)...
957
958 The claim of any lienor upon whom the notice is served and who
959 fails to institute a suit to enforce his or her claim against
960 the payment bond within 60 days after service of the notice
961 shall be extinguished automatically. The contractor or the
962 contractor’s attorney shall serve a copy of the notice of
963 contest to the lienor at the address shown in the notice of
964 nonpayment or most recent amendment thereto and shall certify to
965 such service on the face of the notice and record the notice.
966 Section 14. Subsections (1) and (2) of section 713.235,
967 Florida Statutes, are amended to read:
968 713.235 Waivers of right to claim against payment bond;
969 forms.—
970 (1) When a person is required to execute a waiver of his or
971 her right to make a claim against a payment bond provided under
972 pursuant to s. 713.23 or s. 713.245, in exchange for, or to
973 induce payment of, a progress payment, the waiver may be in
974 substantially the following form:
975
976 WAIVER OF RIGHT TO CLAIM
977 AGAINST THE PAYMENT BOND
978 (PROGRESS PAYMENT)
979
980 The undersigned, in consideration of the sum of $....
981 hereby waives its right to claim against the payment bond for
982 labor, services, or materials furnished through ...(insert
983 date)..., to ...(insert the name of your customer)... on the job
984 of ...(insert the name of the owner)..., for improvements to the
985 following described project:
986
987 (description of project)
988
989 This waiver does not cover any retention or any labor, services,
990 or materials furnished after the date specified.
991 DATED on ....
992 ...(Lienor)...
993 By:........
994 (2) When a person is required to execute a waiver of his or
995 her right to make a claim against a payment bond provided under
996 pursuant to s. 713.23 or s. 713.245, in exchange for, or to
997 induce payment of, the final payment, the waiver may be in
998 substantially the following form:
999
1000 WAIVER OF RIGHT TO CLAIM
1001 AGAINST THE PAYMENT BOND
1002
1003 (FINAL PAYMENT)
1004
1005 The undersigned, in consideration of the final payment in
1006 the amount of $...., hereby waives its right to claim against
1007 the payment bond for labor, services, or materials furnished to
1008 ...(insert the name of your customer)... on the job of
1009 ...(insert the name of the owner)..., for improvements to the
1010 following described project:
1011 (description of project)
1012
1013 DATED on ....
1014 ...(Lienor)...
1015 By:........
1016 Section 15. Section 713.245, Florida Statutes, is repealed.
1017 Section 16. Section 713.25, Florida Statutes, is repealed.
1018 Section 17. Section 713.29, Florida Statutes, is amended to
1019 read:
1020 713.29 Attorney Attorney’s fees.—In any action brought to
1021 enforce a lien, including a lien that has been transferred to
1022 security, or to enforce a claim against a bond under this part,
1023 the prevailing party is entitled to recover a reasonable fee for
1024 the services of her or his attorney for trial and appeal or for
1025 arbitration, in an amount to be determined by the court, which
1026 fee must be taxed as part of the prevailing party’s costs, as
1027 allowed in equitable actions.
1028 Section 18. Paragraph (b) of subsection (2) and paragraph
1029 (e) of subsection (5) of section 95.11, Florida Statutes, are
1030 amended to read:
1031 95.11 Limitations other than for the recovery of real
1032 property.—Actions other than for recovery of real property shall
1033 be commenced as follows:
1034 (2) WITHIN FIVE YEARS.—
1035 (b) A legal or equitable action on a contract, obligation,
1036 or liability founded on a written instrument, except for an
1037 action to enforce a claim against a payment bond, which shall be
1038 governed by the applicable provisions of paragraph (5)(e), s.
1039 255.05(9) s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and
1040 except for an action for a deficiency judgment governed by
1041 paragraph (5)(h).
1042 (5) WITHIN ONE YEAR.—
1043 (e) Except for actions governed by s. 255.05(9) s.
1044 255.05(10), s. 337.18(1), or s. 713.23(1)(e), an action to
1045 enforce any claim against a payment bond on which the principal
1046 is a contractor, subcontractor, or sub-subcontractor as defined
1047 in s. 713.01, for private work as well as public work, from the
1048 last furnishing of labor, services, or materials or from the
1049 last furnishing of labor, services, or materials by the
1050 contractor if the contractor is the principal on a bond on the
1051 same construction project, whichever is later.
1052 Section 19. This act shall take effect July 1, 2022.