Florida Senate - 2023 SB 624
By Senator Grall
29-00360B-23 2023624__
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 contest of
4 claim against a payment bond must be served; requiring
5 that a copy of a notice of nonpayment be served on the
6 surety; revising the process for notarizing a notice
7 of nonpayment; revising authorized alternative forms
8 of security; requiring service of documents to be made
9 in a specified manner; conforming provisions to
10 changes made by the act; making technical changes;
11 amending s. 337.18, F.S.; requiring service of
12 documents to be made in a specified manner; conforming
13 provisions to changes made by the act; amending s.
14 713.01, F.S.; revising and providing definitions;
15 creating s. 713.011, F.S.; providing for the
16 computation of time when certain time periods fall on
17 specified days or during an emergency; amending s.
18 713.10, F.S.; revising the extent of certain liens;
19 amending s. 713.13, F.S.; conforming a cross
20 reference; revising the process for notarizing a
21 notice of commencement; making technical changes;
22 amending s. 713.132, F.S.; revising requirements for a
23 notice of termination; revising when an owner may
24 record a notice of termination; specifying when a
25 notice of termination terminates a notice of
26 commencement; amending s. 713.135, F.S.; defining the
27 term “copy of the notice of commencement”; providing
28 applicability; revising the dollar threshold of an
29 exception; providing immunity; amending s. 713.18,
30 F.S.; requiring service of documents relating to
31 construction bonds to be made in a specified manner;
32 authorizing employees or agents of specified entities
33 to receive service of certain documents; making
34 technical changes; amending s. 713.21, F.S.;
35 authorizing the full or partial release of a lien
36 under specified conditions; making technical changes;
37 amending s. 713.22, F.S.; requiring the clerk to serve
38 a copy of a notice of contest of lien on certain
39 persons after it has been recorded; making technical
40 changes; amending s. 713.23, F.S.; requiring that a
41 copy of a notice of nonpayment be served on the
42 surety; revising the process for notarizing a notice
43 of nonpayment under a payment bond; requiring the
44 clerk to serve a copy of a notice of contest of lien
45 on certain persons after it has been recorded;
46 amending s. 713.24, F.S.; revising the amount required
47 in addition to the deposit or bond that applies toward
48 attorney fees and court costs; requiring the clerk to
49 make a copy of the deposit or bond used to transfer a
50 lien to other security and mail it to the lienor;
51 making technical changes; repealing s. 713.25, F.S.,
52 relating to applicability of chapter 65-456, Laws of
53 Florida; amending s. 713.29, F.S.; authorizing
54 attorney fees in actions brought to enforce a lien
55 that has been transferred to security; making
56 technical changes; providing an effective date.
57
58 Be It Enacted by the Legislature of the State of Florida:
59
60 Section 1. Paragraph (a) of subsection (2) and subsection
61 (7) of section 255.05, Florida Statutes, are amended, and
62 subsection (12) is added to that section, to read:
63 255.05 Bond of contractor constructing public buildings;
64 form; action by claimants.—
65 (2)(a)1. If a claimant is no longer furnishing labor,
66 services, or materials on a project, a contractor or the
67 contractor’s agent or attorney may elect to shorten the time
68 within which an action to enforce any claim against a payment
69 bond must be commenced by recording in the clerk’s office a
70 notice in substantially the following form:
71
72 NOTICE OF CONTEST OF CLAIM
73 AGAINST PAYMENT BOND
74
75 To: ...(Name and address of claimant)...
76
77 You are notified that the undersigned contests your notice
78 of nonpayment, dated ............, ........, and served on the
79 undersigned on ............, ........, and that the time within
80 which you may file suit to enforce your claim is limited to 60
81 days after the date of service of this notice.
82
83 DATED on ............, .........
84
85 Signed: ...(Contractor or Attorney)...
86
87 The claim of a claimant upon whom such notice is served and who
88 fails to institute a suit to enforce his or her claim against
89 the payment bond within 60 days after service of such notice is
90 extinguished automatically. The contractor or the contractor’s
91 attorney shall serve a copy of the notice of contest on to the
92 claimant at the address shown in the notice of nonpayment or
93 most recent amendment thereto and shall certify to such service
94 on the face of the notice and record the notice.
95 2. A claimant, except a laborer, who is not in privity with
96 the contractor shall, before commencing or not later than 45
97 days after commencing to furnish labor, services, or materials
98 for the prosecution of the work, serve the contractor with a
99 written notice that he or she intends to look to the bond for
100 protection. If the payment bond is not recorded before the
101 commencement of work or before the recommencement of work after
102 a default or abandonment as required by subsection (1), the
103 claimant may serve the contractor with such written notice up to
104 45 days after the date that the claimant is served with a copy
105 of the bond. A claimant who is not in privity with the
106 contractor and who has not received payment for furnishing his
107 or her labor, services, or materials shall serve a written
108 notice of nonpayment on the contractor and a copy of the notice
109 of nonpayment on the surety. The notice of nonpayment must shall
110 be under oath and served during the progress of the work or
111 thereafter but may not be served earlier than 45 days after the
112 first furnishing of labor, services, or materials by the
113 claimant or later than 90 days after the final furnishing of the
114 labor, services, or materials by the claimant or, with respect
115 to rental equipment, later than 90 days after the date that the
116 rental equipment was last on the job site of the improvement and
117 available for use. Any notice of nonpayment served by a claimant
118 who is not in privity with the contractor which includes sums
119 for retainage must specify the portion of the amount claimed for
120 retainage. An action for the labor, services, or materials may
121 not be instituted against the contractor or the surety unless
122 the notice to the contractor and notice of nonpayment have been
123 served, if required by this section. Notices required or
124 permitted under this section must be served in accordance with
125 s. 713.18. A claimant may not waive in advance his or her right
126 to bring an action under the bond against the surety. In any
127 action brought to enforce a claim against a payment bond under
128 this section, the prevailing party is entitled to recover a
129 reasonable fee for the services of his or her attorney for trial
130 and appeal or for arbitration, in an amount to be determined by
131 the court or arbitrator, which fee must be taxed as part of the
132 prevailing party’s costs, as allowed in equitable actions. The
133 time periods for service of a notice of nonpayment or for
134 bringing an action against a contractor or a surety are shall be
135 measured from the last day of furnishing labor, services, or
136 materials by the claimant and may not be measured by other
137 standards, such as the issuance of a certificate of occupancy or
138 the issuance of a certificate of substantial completion. The
139 negligent inclusion or omission of any information in the notice
140 of nonpayment that has not prejudiced the contractor or surety
141 does not constitute a default that operates to defeat an
142 otherwise valid bond claim. A claimant who serves a fraudulent
143 notice of nonpayment forfeits his or her rights under the bond.
144 A notice of nonpayment is fraudulent if the claimant has
145 willfully exaggerated the amount unpaid, willfully included a
146 claim for work not performed or materials not furnished for the
147 subject improvement, or prepared the notice with such willful
148 and gross negligence as to amount to a willful exaggeration.
149 However, a minor mistake or error in a notice of nonpayment, or
150 a good faith dispute as to the amount unpaid, does not
151 constitute a willful exaggeration that operates to defeat an
152 otherwise valid claim against the bond. The service of a
153 fraudulent notice of nonpayment is a complete defense to the
154 claimant’s claim against the bond. The notice of nonpayment
155 under this subparagraph must include the following information,
156 current as of the date of the notice, and must be in
157 substantially the following form:
158
159 NOTICE OF NONPAYMENT
160
161 To: ...(name of contractor and address)...
162
163 ...(name of surety and address)...
164
165 The undersigned claimant notifies you that:
166 1. Claimant has furnished ...(describe labor, services, or
167 materials)... for the improvement of the real property
168 identified as ...(property description).... The corresponding
169 amount unpaid to date is $...., of which $.... is unpaid
170 retainage.
171 2. Claimant has been paid to date the amount of $.... for
172 previously furnishing ...(describe labor, services, or
173 materials)... for this improvement.
174 3. Claimant expects to furnish ...(describe labor,
175 services, or materials)... for this improvement in the future
176 (if known), and the corresponding amount expected to become due
177 is $.... (if known).
178
179 I declare that I have read the foregoing Notice of Nonpayment
180 and that the facts stated in it are true to the best of my
181 knowledge and belief.
182
183 DATED on ............, .........
184
185 ...(signature and address of claimant)...
186
187 STATE OF FLORIDA
188 COUNTY OF ........
189
190 The foregoing instrument was sworn to (or affirmed) and
191 subscribed before me by means of ☐ physical presence or sworn to
192 (or affirmed) by ☐ online notarization this .... day of ....,
193 ...(year)..., by ...(name of signatory)....
194 ...(Signature of Notary Public - State of Florida)...
195 ...(Print, Type, or Stamp Commissioned Name of Notary
196 Public)...
197
198 Personally Known ........ OR Produced Identification ........
199
200 Type of Identification Produced.................................
201
202 (7) In lieu of the bond required by this section, a
203 contractor may file with the state, county, city, or other
204 political authority an alternative form of security in the form
205 of cash;, a money order;, a certified check;, a cashier’s
206 check;, an irrevocable letter of credit, or a domestic corporate
207 bond, note, or debenture as authorized in s. 625.317 security of
208 a type listed in part II of chapter 625. Any such alternative
209 form of security is shall be for the same purpose and be subject
210 to the same conditions as those applicable to the bond required
211 by this section. The determination of the value of an
212 alternative form of security shall be made by the appropriate
213 state, county, city, or other political subdivision.
214 (12) Unless otherwise provided in this section, service of
215 any document must be made in accordance with s. 713.18.
216 Section 2. Paragraph (c) of subsection (1) of section
217 337.18, Florida Statutes, is amended, and subsection (6) is
218 added to that section, to read:
219 337.18 Surety bonds for construction or maintenance
220 contracts; requirement with respect to contract award; bond
221 requirements; defaults; damage assessments.—
222 (1)
223 (c) A claimant, except a laborer, who is not in privity
224 with the contractor shall, before commencing or not later than
225 90 days after commencing to furnish labor, materials, or
226 supplies for the prosecution of the work, furnish the contractor
227 with a notice that he or she intends to look to the bond for
228 protection. A claimant who is not in privity with the contractor
229 and who has not received payment for his or her labor,
230 materials, or supplies shall deliver to the contractor and to
231 the surety written notice of the performance of the labor or
232 delivery of the materials or supplies and of the nonpayment. The
233 notice of nonpayment may be served at any time during the
234 progress of the work or thereafter but not before 45 days after
235 the first furnishing of labor, services, or materials, and not
236 later than 90 days after the final furnishing of the labor,
237 services, or materials by the claimant or, with respect to
238 rental equipment, not later than 90 days after the date that the
239 rental equipment was last on the job site of the improvement and
240 available for use. An action by a claimant, except a laborer,
241 who is not in privity with the contractor for the labor,
242 materials, or supplies may not be instituted against the
243 contractor or the surety unless both notices have been given.
244 Written notices required or permitted under this section must
245 may be served in accordance with any manner provided in s.
246 713.18.
247 (6) Unless otherwise provided in this section, service of
248 any document must be made in accordance with s. 713.18.
249 Section 3. Present subsections (13) through (29) of section
250 713.01, Florida Statutes, are redesignated as subsections (14)
251 through (30), respectively, a new subsection (13) is added to
252 that section, and subsections (4), (8), and (12) of that section
253 are amended, to read:
254 713.01 Definitions.—As used in this part, the term:
255 (4) “Clerk’s office” means the office of the clerk of the
256 circuit court of the county, or another office serving as the
257 county recorder as provided by law, in which the real property
258 is located.
259 (8) “Contractor” means a person other than a materialman or
260 laborer who enters into a contract with the owner of real
261 property for improving it, or who takes over from a contractor
262 as so defined the entire remaining work under such contract. The
263 term “contractor” includes an architect, landscape architect, or
264 engineer who improves real property pursuant to a design-build
265 contract authorized by s. 489.103(16). The term also includes a
266 licensed general contractor or building contractor, as those
267 terms are defined in s. 489.105(3)(a) and (b), respectively, who
268 provides construction management services, which include
269 scheduling and coordinating preconstruction and construction
270 phases for the construction project, or who provides program
271 management services, which include schedule control, cost
272 control, and coordinating the provision or procurement of
273 planning, design, and construction for the construction project.
274 (12) “Final furnishing” means the last date that the lienor
275 furnishes labor, services, or materials. Such date may not be
276 measured by other standards, such as the issuance of a
277 certificate of occupancy or the issuance of a certificate of
278 final completion, and does not include the correction of
279 deficiencies in the lienor’s previously performed work or
280 materials supplied. With respect to rental equipment, the term
281 means the date that the rental equipment was last on the job
282 site of the improvement and available for use.
283 (13) “Finance charge” means a contractually specified
284 additional amount to be paid by the obligor on any balance that
285 remains unpaid by the due date set forth in the credit agreement
286 or other contract.
287 Section 4. Section 713.011, Florida Statutes, is created to
288 read:
289 713.011 Computation of time.—In computing any time period
290 under this part, if the last day of the time period is a
291 Saturday, Sunday, or holiday specified in s. 110.117(1), or any
292 day observed as a holiday by the clerk’s office or designated as
293 a holiday by the chief judge of the circuit, the time period is
294 extended to the end of the next business day.
295 Section 5. Paragraph (b) of subsection (2) of section
296 713.10, Florida Statutes, is amended, and subsection (4) is
297 added to that section, to read:
298 713.10 Extent of liens.—
299 (2)
300 (b) The interest of the lessor is not subject to liens for
301 improvements made by the lessee unless when:
302 1. The lease, or a short form or a memorandum of the lease
303 that contains the specific language in the lease prohibiting
304 such liability, is recorded in the official records of the
305 county where the premises are located before the recording of a
306 notice of commencement for improvements to the premises and the
307 terms of the lease expressly prohibit such liability; or
308 2. The terms of the lease expressly prohibit such
309 liability, and a notice advising that leases for the rental of
310 premises on a parcel of land prohibit such liability has been
311 recorded in the official records of the county in which the
312 parcel of land is located before the recording of a notice of
313 commencement for improvements to the premises, and the notice
314 includes the following:
315 a. The name of the lessor.
316 b. The legal description of the parcel of land to which the
317 notice applies.
318 c. The specific language contained in the various leases
319 prohibiting such liability.
320 d. A statement that all or a majority of the leases entered
321 into for premises on the parcel of land expressly prohibit such
322 liability.
323 3. The lessee is a mobile home owner who is leasing a
324 mobile home lot in a mobile home park from the lessor.
325
326 A notice that is consistent with subparagraph 2. effectively
327 prohibits liens for improvements made by a lessee even if other
328 leases for premises on the parcel do not expressly prohibit
329 liens or if provisions of each lease restricting the application
330 of liens are not identical.
331 (4) The interest of the lessor is not subject to liens for
332 improvements made by the lessee when the lessee is a mobile home
333 owner who is leasing a mobile home lot in a mobile home park
334 from the lessor.
335 Section 6. Paragraphs (a) and (d) of subsection (1) of
336 section 713.13, Florida Statutes, are amended to read:
337 713.13 Notice of commencement.—
338 (1)(a) Except for an improvement that is exempt under
339 pursuant to s. 713.02(5), an owner or the owner’s authorized
340 agent before actually commencing to improve any real property,
341 or recommencing completion of any improvement after default or
342 abandonment, whether or not a project has a payment bond
343 complying with s. 713.23, shall record a notice of commencement
344 in the clerk’s office and forthwith post either a certified copy
345 thereof or a notarized statement that the notice of commencement
346 has been filed for recording along with a copy thereof. The
347 notice of commencement must shall contain all of the following
348 information:
349 1. A description sufficient for identification of the real
350 property to be improved. The description must should include the
351 legal description of the property and also should include the
352 street address and tax folio number of the property if available
353 or, if the there is no street address is not available, such
354 additional information as will describe the physical location of
355 the real property to be improved.
356 2. A general description of the improvement.
357 3. The name and address of the owner, the owner’s interest
358 in the site of the improvement, and the name and address of the
359 fee simple titleholder, if other than such owner. A lessee who
360 contracts for the improvements is an owner as defined in s.
361 713.01 under s. 713.01(23) and must be listed as the owner
362 together with a statement that the ownership interest is a
363 leasehold interest.
364 4. The name and address of the contractor.
365 5. The name and address of the surety on the payment bond
366 under s. 713.23, if any, and the amount of such bond.
367 6. The name and address of any person making a loan for the
368 construction of the improvements.
369 7. The name and address within the state of a person other
370 than himself or herself who may be designated by the owner as
371 the person upon whom notices or other documents may be served
372 under this part; and service upon the person so designated
373 constitutes service upon the owner.
374 (d) A notice of commencement must be in substantially the
375 following form:
376
377 Permit No..... Tax Folio No.....
378 NOTICE OF COMMENCEMENT
379 State of....
380 County of....
381
382 The undersigned hereby gives notice that improvement will be
383 made to certain real property, and in accordance with Chapter
384 713, Florida Statutes, the following information is provided in
385 this Notice of Commencement.
386 1. Description of property: ...(legal description of the
387 property, and street address if available)....
388 2. General description of improvement:.....
389 3. Owner information or Lessee information if the Lessee
390 contracted for the improvement:
391 a. Name and address:.....
392 b. Interest in property:.....
393 c. Name and address of fee simple titleholder (if different
394 from Owner listed above):.....
395 4.a. Contractor: ...(name and address)....
396 b. Contractor’s phone number:.....
397 5. Surety (if applicable, a copy of the payment bond is
398 attached):
399 a. Name and address:.....
400 b. Phone number:.....
401 c. Amount of bond: $.....
402 6.a. Lender: ...(name and address)....
403 b. Lender’s phone number:.....
404 7. Persons within the State of Florida designated by Owner
405 upon whom notices or other documents may be served as provided
406 by Section 713.13(1)(a)7., Florida Statutes:
407 a. Name and address:.....
408 b. Phone numbers of designated persons:.....
409 8.a. In addition to himself or herself, Owner designates
410 ............ of ............ to receive a copy of the Lienor’s
411 Notice as provided in Section 713.13(1)(b), Florida Statutes.
412 b. Phone number of person or entity designated by
413 owner:.....
414 9. Expiration date of notice of commencement (the
415 expiration date will be 1 year after from the date of recording
416 unless a different date is specified).....
417
418 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
419 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
420 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
421 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
422 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
423 POSTED ON THE JOB SITE OF THE IMPROVEMENT BEFORE THE FIRST
424 INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
425 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR
426 NOTICE OF COMMENCEMENT.
427
428 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
429 Authorized Officer/Director/Partner/Manager)...
430
431 ...(Signatory’s Title/Office)...
432
433 The foregoing instrument was acknowledged before me by means of
434 ☐ physical presence or sworn to (or affirmed) by ☐ online
435 notarization this .... day of ...., ...(year)..., by ...(name of
436 person)... as ...(type of authority, . . . e.g. officer,
437 trustee, attorney in fact)... for ...(name of party on behalf of
438 whom instrument was executed)....
439
440 ...(Signature of Notary Public - State of Florida)...
441
442 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
443
444 Personally Known .... OR Produced Identification ....
445
446 Type of Identification Produced............
447 Section 7. Present subsection (4) of section 713.132,
448 Florida Statutes, is redesignated as subsection (5) and amended,
449 a new subsection (4) is added to that section, and subsections
450 (1) and (3) of that section are amended, to read:
451 713.132 Notice of termination.—
452 (1) An owner may terminate the period of effectiveness of a
453 notice of commencement by executing, swearing to, and recording
454 a notice of termination that contains all of the following:
455 (a) The same information that is in as the notice of
456 commencement.;
457 (b) The official records’ recording office document book
458 and page reference numbers and recording date affixed by the
459 recording office on of the recorded notice of commencement.;
460 (c) A statement of the date as of which the notice of
461 commencement is terminated, which date may not be earlier than
462 30 days after the notice of termination is recorded.;
463 (d) A statement specifying that the notice applies to all
464 the real property subject to the notice of commencement or
465 specifying the portion of such real property to which it
466 applies.;
467 (e) A statement that all lienors have been paid in full.;
468 and
469 (f) A statement that the owner has, before recording the
470 notice of termination, served a copy of the notice of
471 termination on the contractor and on each lienor who has a
472 direct contract with the owner or who has timely served a notice
473 to owner, and a statement that the owner will serve a copy of
474 the notice of termination on each lienor who timely serves a
475 notice to owner after the notice of termination has been
476 recorded. The owner is not required to serve a copy of the
477 notice of termination on any lienor who has executed a waiver
478 and release of lien upon final payment in accordance with s.
479 713.20.
480 (3) An owner may not record a notice of termination at any
481 time after except after completion of construction, or after
482 construction ceases before completion and all lienors have been
483 paid in full or pro rata in accordance with s. 713.06(4).
484 (4) If an owner or a contractor, by fraud or collusion,
485 knowingly makes any fraudulent statement or affidavit in a
486 notice of termination or any accompanying affidavit, the owner
487 and the contractor, or either of them, as the case may be, is
488 liable to any lienor who suffers damages as a result of the
489 filing of the fraudulent notice of termination,; and any such
490 lienor has a right of action for damages occasioned thereby.
491 (5)(4) A notice of termination must be served on each
492 lienor who has a direct contract with the owner and on each
493 lienor who has timely and properly served a notice to owner in
494 accordance with this part before the recording of the notice of
495 termination. A notice of termination must be recorded in the
496 official records of the county in which the improvement is
497 located. If properly served before recording in accordance with
498 this subsection, the notice of termination terminates the period
499 of effectiveness of the notice of commencement 30 days after the
500 notice of termination is recorded in the official records is
501 effective to terminate the notice of commencement at the later
502 of 30 days after recording of the notice of termination or a
503 later the date stated in the notice of termination as the date
504 on which the notice of commencement is terminated. However, if a
505 lienor who began work under the notice of commencement before
506 its termination lacks a direct contract with the owner and
507 timely serves his or her notice to the owner after the notice of
508 termination has been recorded, the owner must serve a copy of
509 the notice of termination upon such lienor, and the termination
510 of the notice of commencement as to that lienor is effective 30
511 days after service of the notice of termination, if the notice
512 of termination has been served pursuant to paragraph (1)(f) on
513 the contractor and on each lienor who has a direct contract with
514 the owner or who has served a notice to owner.
515 Section 8. Subsections (1) and (3) of section 713.135,
516 Florida Statutes, are amended to read:
517 713.135 Notice of commencement and applicability of lien.—
518 (1) When a any person applies for a building permit, the
519 authority issuing such permit shall:
520 (a) Print on the face of each permit card in no less than
521 14-point, capitalized, boldfaced type: “WARNING TO OWNER: YOUR
522 FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR
523 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF
524 COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE OF THE
525 IMPROVEMENT BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN
526 FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
527 RECORDING YOUR NOTICE OF COMMENCEMENT.”
528 (b) Provide the applicant and the owner of the real
529 property upon which improvements are to be constructed with a
530 printed statement stating that the right, title, and interest of
531 the person who has contracted for the improvement may be subject
532 to attachment under the Construction Lien Law. The Department of
533 Business and Professional Regulation shall furnish, for
534 distribution, the statement described in this paragraph, and the
535 statement must be a summary of the Construction Lien Law and
536 must include an explanation of the provisions of the
537 Construction Lien Law relating to the recording, and the posting
538 of copies, of notices of commencement and a statement
539 encouraging the owner to record a notice of commencement and
540 post a copy of the notice of commencement in accordance with s.
541 713.13. The statement must also contain an explanation of the
542 owner’s rights if a lienor fails to furnish the owner with a
543 notice as provided in s. 713.06(2) and an explanation of the
544 owner’s rights as provided in s. 713.22. The authority that
545 issues the building permit must obtain from the Department of
546 Business and Professional Regulation the statement required by
547 this paragraph and must mail, deliver by electronic mail or
548 other electronic format or facsimile, or personally deliver that
549 statement to the owner or, in a case in which the owner is
550 required to personally appear to obtain the permit, provide that
551 statement to any owner making improvements to real property
552 consisting of a single or multiple family dwelling up to and
553 including four units. However, the failure by the authorities to
554 provide the summary does not subject the issuing authority to
555 liability.
556 (c) In addition to providing the owner with the statement
557 as required by paragraph (b), inform each applicant who is not
558 the person whose right, title, and interest is subject to
559 attachment that, as a condition to the issuance of a building
560 permit, the applicant must promise in good faith that the
561 statement will be delivered to the person whose property is
562 subject to attachment.
563 (d) Furnish to the applicant two or more copies of a form
564 of notice of commencement conforming with s. 713.13.
565 (e) Require If the direct contract is greater than $2,500,
566 the applicant to shall file with the issuing authority before
567 prior to the first inspection either a certified copy of the
568 recorded notice of commencement if the direct contract is
569 greater than $7,500. For purposes of this paragraph, the term
570 “copy of the notice of commencement” means a certified copy of
571 the recorded notice of commencement, or a notarized statement
572 that the notice of commencement has been filed for recording,
573 along with a copy thereof, or the clerk’s office’s official
574 records identifying information that includes the instrument
575 number for the notice of commencement or the number and page of
576 book where the notice of commencement is recorded, as identified
577 by the clerk.
578 1. In the absence of the filing of a certified copy of the
579 recorded notice of commencement, the issuing authority or a
580 private provider performing inspection services may not perform
581 or approve subsequent inspections until the applicant files by
582 mail, facsimile, hand delivery, or any other means such
583 certified copy with the issuing authority.
584 2. The certified copy of the notice of commencement must
585 contain the name and address of the owner, the name and address
586 of the contractor, and the location or address of the property
587 being improved. The issuing authority shall verify that the name
588 and address of the owner, the name of the contractor, and the
589 location or address of the property being improved which is
590 contained in the certified copy of the notice of commencement is
591 consistent with the information in the building permit
592 application.
593 3. The issuing authority shall provide the recording
594 information on the certified copy of the recorded notice of
595 commencement to any person upon request.
596 4. This paragraph subsection does not require the recording
597 of a notice of commencement before prior to the issuance of a
598 building permit. If a local government requires a separate
599 permit or inspection for installation of temporary electrical
600 service or other temporary utility service, land clearing, or
601 other preliminary site work, such permits may be issued and such
602 inspections may be conducted without providing the issuing
603 authority with a certified copy of the a recorded notice of
604 commencement or a notarized statement regarding a recorded
605 notice of commencement. This subsection does not apply to a
606 direct contract to repair or replace an existing heating or air
607 conditioning system in an amount less than $15,000.
608 (f)(e) Not require that a notice of commencement be
609 recorded as a condition of the application for, or processing or
610 issuance of, a building permit. However, this paragraph does not
611 modify or waive the inspection requirements set forth in this
612 subsection.
613
614 This subsection does not apply to a direct contract to repair or
615 replace an existing heating or air-conditioning system in an
616 amount less than $15,000.
617 (3) An issuing authority under subsection (1) is not liable
618 in any civil action for the failure to verify that a certified
619 copy of the recorded notice of commencement, a notarized
620 statement that the notice of commencement has been filed for
621 recording along with a copy thereof, or the clerk’s office’s
622 official records identifying information that includes the
623 instrument number for the notice of commencement or the number
624 and page of book where the notice of commencement is recorded,
625 as identified by the clerk, has been filed in accordance with
626 this section.
627 Section 9. Section 713.18, Florida Statutes, is amended to
628 read:
629 713.18 Manner of serving documents notices and other
630 instruments.—
631 (1) Unless otherwise specifically provided by law, service
632 of any document notices, claims of lien, affidavits,
633 assignments, and other instruments permitted or required under
634 this part, s. 255.05, or s. 337.18, or copies thereof when so
635 permitted or required, unless otherwise specifically provided in
636 this part, must be made by one of the following methods:
637 (a) By hand actual delivery to the person to be served; if
638 a partnership, to one of the partners; if a corporation, to an
639 officer or a, director, managing agent, or business agent; or,
640 if a limited liability company, to a member or manager; or to an
641 employee or agent authorized by the partnership, corporation, or
642 limited liability company to receive service of such document.
643 (b) By common carrier delivery service or by registered,
644 Global Express Guaranteed, or certified mail to the person to be
645 served, with postage or shipping paid by the sender and with
646 evidence of delivery, which may be in an electronic format.
647 (c) By posting on the site of the improvement if service as
648 provided by paragraph (a) or paragraph (b) cannot be
649 accomplished.
650 (2) Notwithstanding subsection (1), service of a notice to
651 owner or a preliminary notice to contractor under this part, s.
652 255.05, or s. 337.18, or s. 713.23 is effective as of the date
653 of mailing and the requirements for service under this section
654 have been satisfied if all of the following requirements have
655 been met:
656 (a) The notice is mailed by registered, Global Express
657 Guaranteed, or certified mail, with postage prepaid, to the
658 person to be served and addressed as prescribed at any of the
659 addresses set forth in subsection (3).;
660 (b) The notice is mailed within 40 days after the date the
661 lienor first furnishes labor, services, or materials.; and
662 (c)1. The person who served the notice maintains a
663 registered or certified mail log that shows the registered or
664 certified mail number issued by the United States Postal
665 Service, the name and address of the person served, and the date
666 stamp of the United States Postal Service confirming the date of
667 mailing; or
668 2. The person who served the notice maintains electronic
669 tracking records approved or generated by the United States
670 Postal Service containing the postal tracking number, the name
671 and address of the person served, and verification of the date
672 of receipt by the United States Postal Service.
673 (3)(a) Notwithstanding subsection (1), service of a
674 document under an instrument pursuant to this section is
675 effective on the date of mailing or shipping, and the
676 requirements for service under this section have been satisfied,
677 the instrument if the document is it:
678 1. Is Sent to the last address shown in the notice of
679 commencement or any amendment thereto or, in the absence of a
680 notice of commencement, to the last address shown in the
681 building permit application, or to the last known address of the
682 person to be served; and
683 2. Is Returned as being “refused,” “moved, not
684 forwardable,” or “unclaimed,” or is otherwise not delivered or
685 deliverable through no fault of the person serving the document
686 item.
687 (b) If the address shown in the notice of commencement or
688 any amendment thereto to the notice of commencement, or, in the
689 absence of a notice of commencement, in the building permit
690 application, is incomplete for purposes of mailing or delivery,
691 the person serving the document item may complete the address
692 and properly format it according to United States Postal Service
693 addressing standards using information obtained from the
694 property appraiser or another public record without affecting
695 the validity of service under this section.
696 (4) A document notice served by a lienor on one owner or
697 one partner of a partnership owning the real property is deemed
698 served on notice to all owners and partners.
699 Section 10. Section 713.21, Florida Statutes, is amended to
700 read:
701 713.21 Discharge of lien.—A lien properly perfected under
702 this chapter may be discharged, or released in whole or in part,
703 by any of the following methods:
704 (1) By entering satisfaction of the lien upon the margin of
705 the record thereof in the clerk’s office when not otherwise
706 prohibited by law. This satisfaction must shall be signed by the
707 lienor or, the lienor’s agent or attorney and attested by the
708 said clerk. Any person who executes a claim of lien has shall
709 have authority to execute a satisfaction in the absence of
710 actual notice of lack of authority to any person relying on the
711 same.
712 (2) By the satisfaction or release of the lienor, duly
713 acknowledged and recorded in the clerk’s office. The
714 satisfaction or release must include the lienor’s notarized
715 signature and set forth the official records’ reference number
716 and recording date affixed by the recording office on the
717 subject lien. Any person who executes a claim of lien has shall
718 have authority to execute a satisfaction or release in the
719 absence of actual notice of lack of authority to any person
720 relying on the same.
721 (3) By failure to begin an action to enforce the lien
722 within the time prescribed in this part.
723 (4) By an order of the circuit court of the county where
724 the property is located, as provided in this subsection. Upon
725 filing a complaint therefor by any interested party, the clerk
726 shall issue a summons to the lienor to show cause within 20 days
727 why his or her lien should not be enforced by action or vacated
728 and canceled of record. Upon failure of the lienor to show cause
729 why his or her lien should not be enforced or the lienor’s
730 failure to commence such action before the return date of the
731 summons, the court shall forthwith order cancellation of the
732 lien.
733 (5) By recording in the clerk’s office the original or a
734 certified copy of a judgment or decree of a court of competent
735 jurisdiction showing a final determination of the action.
736 Section 11. Subsection (2) of section 713.22, Florida
737 Statutes, is amended to read:
738 713.22 Duration of lien.—
739 (2) An owner or the owner’s attorney may elect to shorten
740 the time prescribed in subsection (1) within which to commence
741 an action to enforce any claim of lien or claim against a bond
742 or other security under s. 713.23 or s. 713.24 by recording in
743 the clerk’s office a notice in substantially the following form:
744
745 NOTICE OF CONTEST OF LIEN
746
747 To: ...(Name and address of lienor)...
748
749 You are notified that the undersigned contests the claim of lien
750 filed by you on ...., ...(year)..., and recorded in .... Book
751 ...., Page ...., of the public records of .... County, Florida,
752 and that the time within which you may file suit to enforce your
753 lien is limited to 60 days from the date of service of this
754 notice. This .... day of ...., ...(year)....
755
756 Signed: ...(Owner or Attorney)...
757
758 The lien of any lienor upon whom such notice is served and who
759 fails to institute a suit to enforce his or her lien within 60
760 days after service of such notice is shall be extinguished
761 automatically. The clerk shall serve, in accordance with s.
762 713.18, a copy of the notice of contest on to the lienor lien
763 claimant at the address shown in the claim of lien or most
764 recent amendment thereto and shall certify to such service and
765 the date of service on the face of the notice and record the
766 notice. After the clerk records the notice with the certificate
767 of service, the clerk shall serve, in accordance with s. 713.18,
768 a copy of such recorded notice on the lienor and the owner or
769 the owner’s attorney.
770 Section 12. Paragraphs (d) and (e) of subsection (1) of
771 section 713.23, Florida Statutes, are amended to read:
772 713.23 Payment bond.—
773 (1)
774 (d) In addition, a lienor who has not received payment for
775 furnishing his or her labor, services, or materials must, as a
776 condition precedent to recovery under the bond, serve a written
777 notice of nonpayment on to the contractor and a copy of the
778 notice of nonpayment on the surety. The notice of nonpayment
779 must be under oath and served during the progress of the work or
780 thereafter, but may not be served later than 90 days after the
781 final furnishing of labor, services, or materials by the lienor,
782 or, with respect to rental equipment, later than 90 days after
783 the date the rental equipment was on the job site of the
784 improvement and available for use. A notice of nonpayment that
785 includes sums for retainage must specify the portion of the
786 amount claimed for retainage. The required notice satisfies this
787 condition precedent with respect to the payment described in the
788 notice of nonpayment, including unpaid finance charges due under
789 the lienor’s contract, and with respect to any other payments
790 which become due to the lienor after the date of the notice of
791 nonpayment. The time period for serving a notice of nonpayment
792 is shall be measured from the last day of furnishing labor,
793 services, or materials by the lienor and may not be measured by
794 other standards, such as the issuance of a certificate of
795 occupancy or the issuance of a certificate of substantial
796 completion. The failure of a lienor to receive retainage sums
797 not in excess of 10 percent of the value of labor, services, or
798 materials furnished by the lienor is not considered a nonpayment
799 requiring the service of the notice provided under this
800 paragraph. If the payment bond is not recorded before
801 commencement of construction, the time period for the lienor to
802 serve a notice of nonpayment may, at the option of the lienor,
803 be calculated from the date specified in this section or the
804 date the lienor is served a copy of the bond. However, the
805 limitation period for commencement of an action on the payment
806 bond as established in paragraph (e) may not be expanded. The
807 negligent inclusion or omission of any information in the notice
808 of nonpayment that has not prejudiced the contractor or surety
809 does not constitute a default that operates to defeat an
810 otherwise valid bond claim. A lienor who serves a fraudulent
811 notice of nonpayment forfeits his or her rights under the bond.
812 A notice of nonpayment is fraudulent if the lienor has willfully
813 exaggerated the amount unpaid, willfully included a claim for
814 work not performed or materials not furnished for the subject
815 improvement, or prepared the notice with such willful and gross
816 negligence as to amount to a willful exaggeration. However, a
817 minor mistake or error in a notice of nonpayment, or a good
818 faith dispute as to the amount unpaid, does not constitute a
819 willful exaggeration that operates to defeat an otherwise valid
820 claim against the bond. The service of a fraudulent notice of
821 nonpayment is a complete defense to the lienor’s claim against
822 the bond. The notice under this paragraph must include the
823 following information, current as of the date of the notice, and
824 must be in substantially the following form:
825
826 NOTICE OF NONPAYMENT
827
828 To ...(name of contractor and address)...
829
830 ...(name of surety and address)...
831
832 The undersigned lienor notifies you that:
833 1. The lienor has furnished ...(describe labor, services,
834 or materials)... for the improvement of the real property
835 identified as ...(property description).... The corresponding
836 amount unpaid to date is $...., of which $.... is unpaid
837 retainage.
838 2. The lienor has been paid to date the amount of $.... for
839 previously furnishing ...(describe labor, services, or
840 materials)... for this improvement.
841 3. The lienor expects to furnish ...(describe labor,
842 services, or materials)... for this improvement in the future
843 (if known), and the corresponding amount expected to become due
844 is $.... (if known).
845
846 I declare that I have read the foregoing Notice of Nonpayment
847 and that the facts stated in it are true to the best of my
848 knowledge and belief.
849
850 DATED on ............, .........
851
852 ...(signature and address of lienor)...
853
854 STATE OF FLORIDA
855 COUNTY OF........
856
857 The foregoing instrument was sworn to (or affirmed) and
858 subscribed before me by means of ☐ physical presence or sworn to
859 (or affirmed) by ☐ online notarization this .... day of ....,
860 ...(year)..., by ...(name of signatory)....
861 ...(Signature of Notary Public - State of Florida)...
862 ...(Print, Type, or Stamp Commissioned Name of Notary
863 Public)...
864
865 Personally Known ........ OR Produced Identification ........
866
867 Type of Identification Produced.................................
868 (e) An action for the labor, or materials, or supplies may
869 not be instituted or prosecuted against the contractor or surety
870 unless both notices have been given, if required by this
871 section. An action may not be instituted or prosecuted against
872 the contractor or against the surety on the bond under this
873 section after 1 year from the performance of the labor or
874 completion of delivery of the materials and supplies. The time
875 period for bringing an action against the contractor or surety
876 on the bond is shall be measured from the last day of furnishing
877 labor, services, or materials by the lienor. The time period may
878 not be measured by other standards, such as the issuance of a
879 certificate of occupancy or the issuance of a certificate of
880 substantial completion. A contractor or the contractor’s
881 attorney may elect to shorten the time within which an action to
882 enforce any claim against a payment bond provided under this
883 section or s. 713.245 must be commenced at any time after a
884 notice of nonpayment, if required, has been served for the claim
885 by recording in the clerk’s office a notice in substantially the
886 following form:
887 NOTICE OF CONTEST OF CLAIM
888 AGAINST PAYMENT BOND
889 To: ...(Name and address of lienor)...
890 You are notified that the undersigned contests your notice
891 of nonpayment, dated ...., ...., and served on the undersigned
892 on ...., ...., and that the time within which you may file suit
893 to enforce your claim is limited to 60 days after from the date
894 of service of this notice.
895 DATED on ...., .....
896 Signed: ...(Contractor or Attorney)...
897
898 The claim of any lienor upon whom the notice is served and who
899 fails to institute a suit to enforce his or her claim against
900 the payment bond within 60 days after service of the notice is
901 shall be extinguished automatically. The contractor or the
902 contractor’s attorney shall serve, in accordance with s. 713.18,
903 a copy of the notice of contest to the lienor at the address
904 shown in the notice of nonpayment or most recent amendment
905 thereto and shall certify to such service on the face of the
906 notice and record the notice. After the clerk records the notice
907 with the certificate of service, the clerk shall serve, in
908 accordance with s. 713.18, a copy of such recorded notice on the
909 lienor and the contractor or the contractor’s attorney.
910 Section 13. Subsections (1) and (3) of section 713.24,
911 Florida Statutes, are amended to read:
912 713.24 Transfer of liens to security.—
913 (1) Any lien claimed under this part may be transferred, by
914 any person having an interest in the real property upon which
915 the lien is imposed or the contract under which the lien is
916 claimed, from such real property to other security by either:
917 (a) Depositing in the clerk’s office a sum of money;, or
918 (b) Filing in the clerk’s office a bond executed as surety
919 by a surety insurer licensed to do business in this state,
920
921 either to be in an amount equal to the amount demanded in such
922 claim of lien, plus interest thereon at the legal rate for 3
923 years, plus $5,000 $1,000 or 25 percent of the amount demanded
924 in the claim of lien, whichever is greater, to apply on any
925 attorney attorney’s fees and court costs that may be taxed in
926 any proceeding to enforce the said lien. Such deposit or bond
927 must shall be conditioned to pay any judgment or decree which
928 may be rendered for the satisfaction of the lien for which such
929 claim of lien was recorded. Upon making such deposit or filing
930 such bond, the clerk shall make and record a certificate, which
931 must include a copy of the deposit or bond used to transfer,
932 showing the transfer of the lien from the real property to the
933 security and shall mail a copy thereof together with a copy of
934 the deposit or bond used to transfer by registered or certified
935 mail to the lienor named in the claim of lien so transferred, at
936 the address stated therein. Upon filing the certificate of
937 transfer, the real property is shall thereupon be released from
938 the lien claimed, and such lien is shall be transferred to the
939 said security. In the absence of allegations of privity between
940 the lienor and the owner, and subject to any order of the court
941 increasing the amount required for the lien transfer deposit or
942 bond, no other judgment or decree to pay money may be entered by
943 the court against the owner. The clerk is shall be entitled to a
944 service charge for making and serving the certificate, in the
945 amount of up to $20, from which the clerk shall remit $5 to the
946 Department of Revenue for deposit into the General Revenue Fund.
947 If the transaction involves the transfer of multiple liens, the
948 clerk must charge an additional service charge of up to $10 for
949 each additional lien shall be charged, from which the clerk
950 shall remit $2.50 to the Department of Revenue for deposit into
951 the General Revenue Fund. For recording the certificate and
952 approving the bond, the clerk shall receive her or his usual
953 statutory service charges as prescribed in s. 28.24. Any number
954 of liens may be transferred to one such security.
955 (3) Any party having an interest in such security or the
956 property from which the lien was transferred may at any time,
957 and any number of times, file a complaint in chancery in the
958 circuit court of the county where such security is deposited, or
959 file a motion in a pending action to enforce a lien, for an
960 order to require additional security, reduction of security,
961 change or substitution of sureties, payment of discharge
962 thereof, or any other matter affecting the said security. If the
963 court finds that the amount of the deposit or bond in excess of
964 the amount claimed in the claim of lien is insufficient to pay
965 the lienor’s attorney attorney’s fees and court costs incurred
966 in the action to enforce the lien, the court must increase the
967 amount of the cash deposit or lien transfer bond. Nothing in
968 This section may not shall be construed to vest exclusive
969 jurisdiction in the circuit courts over transfer bond claims for
970 nonpayment of an amount within the monetary jurisdiction of the
971 county courts.
972 Section 14. Section 713.25, Florida Statutes, is repealed.
973 Section 15. Section 713.29, Florida Statutes, is amended to
974 read:
975 713.29 Attorney Attorney’s fees.—In any action brought to
976 enforce a lien, including a lien that has been transferred to
977 security, or to enforce a claim against a bond under this part,
978 the prevailing party is entitled to recover a reasonable fee for
979 the services of her or his attorney for trial and appeal or for
980 arbitration, in an amount to be determined by the court, which
981 fee must be taxed as part of the prevailing party’s costs, as
982 allowed in equitable actions.
983 Section 16. This act shall take effect October 1, 2023.