Florida Senate - 2020                              CS for SB 868
       
       
        
       By the Committee on Judiciary; and Senator Albritton
       
       
       
       
       
       590-03112-20                                           2020868c1
    1                        A bill to be entitled                      
    2         An act relating to liens and bonds; amending s.
    3         255.05, F.S.; requiring that a copy of a notice of
    4         nonpayment be served on the surety; prohibiting a
    5         person from requiring a claimant to furnish a certain
    6         waiver in exchange for or to induce certain payments;
    7         providing that specified provisions in certain waivers
    8         are unenforceable; providing an exception; amending s.
    9         337.18, F.S.; providing that certain waivers apply to
   10         certain contracts; amending s. 713.01, F.S.; revising
   11         definitions; amending s. 713.09, F.S.; authorizing a
   12         lienor to record one claim of lien for multiple direct
   13         contracts; amending s. 713.10, F.S.; providing that
   14         the interest of a lessor is not subject to liens for
   15         certain improvements made by certain lessees who are
   16         mobile home owners; amending s. 713.13, F.S.; revising
   17         information to be included in a notice of
   18         commencement; amending s. 713.132, F.S.; revising
   19         requirements for a notice of termination; amending s.
   20         713.18, F.S.; specifying the manner in which documents
   21         relating to certain construction bonds must be served;
   22         providing that service of a document may be by hand
   23         delivery; providing that service of a document is
   24         effective on the date of mailing or shipping; making
   25         technical changes; amending ss. 713.20 and 713.235,
   26         F.S.; prohibiting a person from requiring a lienor to
   27         furnish a certain waiver or release in exchange for or
   28         to induce certain payments; providing that specified
   29         provisions in certain waivers or releases are
   30         unenforceable; providing an exception; amending s.
   31         713.23, F.S.; requiring that a copy of a notice of
   32         nonpayment be served on the surety; amending s.
   33         713.29, F.S.; authorizing attorney fees in actions to
   34         enforce a lien that has been transferred to security;
   35         providing an effective date.
   36          
   37  Be It Enacted by the Legislature of the State of Florida:
   38  
   39         Section 1. Paragraphs (a), (d), and (f) of subsection (2)
   40  of section 255.05, Florida Statutes, are amended to read:
   41         255.05 Bond of contractor constructing public buildings;
   42  form; action by claimants.—
   43         (2)(a)1. If a claimant is no longer furnishing labor,
   44  services, or materials on a project, a contractor or the
   45  contractor’s agent or attorney may elect to shorten the time
   46  within which an action to enforce any claim against a payment
   47  bond must be commenced by recording in the clerk’s office a
   48  notice in substantially the following form:
   49  
   50                     NOTICE OF CONTEST OF CLAIM                    
   51                        AGAINST PAYMENT BOND                       
   52  
   53  To: ...(Name and address of claimant)...
   54  
   55         You are notified that the undersigned contests your notice
   56  of nonpayment, dated ............, ........, and served on the
   57  undersigned on ............, ........, and that the time within
   58  which you may file suit to enforce your claim is limited to 60
   59  days after the date of service of this notice.
   60  
   61         DATED on ............, .........
   62  
   63  Signed: ...(Contractor or Attorney)...
   64  
   65  The claim of a claimant upon whom such notice is served and who
   66  fails to institute a suit to enforce his or her claim against
   67  the payment bond within 60 days after service of such notice is
   68  extinguished automatically. The contractor or the contractor’s
   69  attorney shall serve a copy of the notice of contest on to the
   70  claimant at the address shown in the notice of nonpayment or
   71  most recent amendment thereto and shall certify to such service
   72  on the face of the notice and record the notice.
   73         2. A claimant, except a laborer, who is not in privity with
   74  the contractor shall, before commencing or not later than 45
   75  days after commencing to furnish labor, services, or materials
   76  for the prosecution of the work, serve the contractor with a
   77  written notice that he or she intends to look to the bond for
   78  protection. A claimant who is not in privity with the contractor
   79  and who has not received payment for furnishing his or her
   80  labor, services, or materials shall serve a written notice of
   81  nonpayment on the contractor and a copy of the notice on the
   82  surety. The notice of nonpayment shall be under oath and served
   83  during the progress of the work or thereafter but may not be
   84  served earlier than 45 days after the first furnishing of labor,
   85  services, or materials by the claimant or later than 90 days
   86  after the final furnishing of the labor, services, or materials
   87  by the claimant or, with respect to rental equipment, later than
   88  90 days after the date that the rental equipment was last on the
   89  job site available for use. Any notice of nonpayment served by a
   90  claimant who is not in privity with the contractor which
   91  includes sums for retainage must specify the portion of the
   92  amount claimed for retainage. An action for the labor, services,
   93  or materials may not be instituted against the contractor or the
   94  surety unless the notice to the contractor and notice of
   95  nonpayment have been served, if required by this section.
   96  Notices required or permitted under this section must be served
   97  in accordance with s. 713.18. A claimant may not waive in
   98  advance his or her right to bring an action under the bond
   99  against the surety. In any action brought to enforce a claim
  100  against a payment bond under this section, the prevailing party
  101  is entitled to recover a reasonable fee for the services of his
  102  or her attorney for trial and appeal or for arbitration, in an
  103  amount to be determined by the court, which fee must be taxed as
  104  part of the prevailing party’s costs, as allowed in equitable
  105  actions. The time periods for service of a notice of nonpayment
  106  or for bringing an action against a contractor or a surety are
  107  shall be measured from the last day of furnishing labor,
  108  services, or materials by the claimant and may not be measured
  109  by other standards, such as the issuance of a certificate of
  110  occupancy or the issuance of a certificate of substantial
  111  completion. The negligent inclusion or omission of any
  112  information in the notice of nonpayment that has not prejudiced
  113  the contractor or surety does not constitute a default that
  114  operates to defeat an otherwise valid bond claim. A claimant who
  115  serves a fraudulent notice of nonpayment forfeits his or her
  116  rights under the bond. A notice of nonpayment is fraudulent if
  117  the claimant has willfully exaggerated the amount unpaid,
  118  willfully included a claim for work not performed or materials
  119  not furnished for the subject improvement, or prepared the
  120  notice with such willful and gross negligence as to amount to a
  121  willful exaggeration. However, a minor mistake or error in a
  122  notice of nonpayment, or a good faith dispute as to the amount
  123  unpaid, does not constitute a willful exaggeration that operates
  124  to defeat an otherwise valid claim against the bond. The service
  125  of a fraudulent notice of nonpayment is a complete defense to
  126  the claimant’s claim against the bond. The notice of nonpayment
  127  under this subparagraph must include the following information,
  128  current as of the date of the notice, and must be in
  129  substantially the following form:
  130  
  131                        NOTICE OF NONPAYMENT                       
  132  
  133  To: ...(name of contractor and address)...
  134  
  135  ...(name of surety and address)...
  136  
  137  The undersigned claimant notifies you that:
  138         1. Claimant has furnished ...(describe labor, services, or
  139  materials)... for the improvement of the real property
  140  identified as ...(property description).... The corresponding
  141  amount unpaid to date is $...., of which $.... is unpaid
  142  retainage.
  143         2. Claimant has been paid to date the amount of $.... for
  144  previously furnishing ...(describe labor, services, or
  145  materials)... for this improvement.
  146         3. Claimant expects to furnish ...(describe labor,
  147  services, or materials)... for this improvement in the future
  148  (if known), and the corresponding amount expected to become due
  149  is $.... (if known).
  150  
  151  I declare that I have read the foregoing Notice of Nonpayment
  152  and that the facts stated in it are true to the best of my
  153  knowledge and belief.
  154  
  155  DATED on ............, .........
  156  
  157  ...(signature and address of claimant)...
  158  
  159  STATE OF FLORIDA
  160  COUNTY OF ........
  161  
  162  The foregoing instrument was sworn to (or affirmed) and
  163  subscribed before me by means of ☐ physical presence or ☐ online
  164  notarization this .... day of ...., ...(year)..., by ...(name of
  165  signatory)....
  166  
  167         ...(Signature of Notary Public - State of Florida)...
  168         ...(Print, Type, or Stamp Commissioned Name of Notary
  169  Public)...
  170  
  171  Personally Known ........ OR Produced Identification ........
  172  
  173  Type of Identification Produced	
  174  
  175         (d) A person may not require a claimant to furnish a waiver
  176  that is different from the forms in paragraphs (b) and (c) in
  177  exchange for, or to induce payment of, a progress payment or
  178  final payment, unless the claimant has entered into a direct
  179  contract that requires the claimant to furnish a waiver that is
  180  different from the forms in paragraphs (b) and (c).
  181         (f) Any provisions in a waiver that are is not related to
  182  the waiver of right to claim against a payment bond as provided
  183  in this subsection are unenforceable, unless the claimant has
  184  otherwise agreed to those provisions in the claimant’s direct
  185  contract substantially similar to the forms in this subsection
  186  is enforceable in accordance with its terms.
  187         Section 2. Paragraph (c) of subsection (1) of section
  188  337.18, Florida Statutes, is amended to read:
  189         337.18 Surety bonds for construction or maintenance
  190  contracts; requirement with respect to contract award; bond
  191  requirements; defaults; damage assessments.—
  192         (1)
  193         (c) A claimant, except a laborer, who is not in privity
  194  with the contractor shall, before commencing or not later than
  195  90 days after commencing to furnish labor, materials, or
  196  supplies for the prosecution of the work, furnish the contractor
  197  with a notice that he or she intends to look to the bond for
  198  protection. A claimant who is not in privity with the contractor
  199  and who has not received payment for his or her labor,
  200  materials, or supplies shall deliver to the contractor and to
  201  the surety written notice of the performance of the labor or
  202  delivery of the materials or supplies and of the nonpayment. The
  203  notice of nonpayment may be served at any time during the
  204  progress of the work or thereafter but not before 45 days after
  205  the first furnishing of labor, services, or materials, and not
  206  later than 90 days after the final furnishing of the labor,
  207  services, or materials by the claimant or, with respect to
  208  rental equipment, not later than 90 days after the date that the
  209  rental equipment was last on the job site available for use. An
  210  action by a claimant, except a laborer, who is not in privity
  211  with the contractor for the labor, materials, or supplies may
  212  not be instituted against the contractor or the surety unless
  213  both notices have been given. Notices required or permitted
  214  under this section may be served in any manner provided in s.
  215  713.18, and provisions for the waiver of claims against a
  216  payment bond contained in s. 255.05(2) apply to all contracts
  217  under this section.
  218         Section 3. Subsections (8) and (26) of section 713.01,
  219  Florida Statutes, are amended to read:
  220         713.01 Definitions.—As used in this part, the term:
  221         (8) “Contractor” means a person other than a materialman or
  222  laborer who enters into a contract with the owner of real
  223  property for improving it, or who takes over from a contractor
  224  as so defined the entire remaining work under such contract. The
  225  term “contractor” includes an architect, landscape architect, or
  226  engineer who improves real property pursuant to a design-build
  227  contract authorized by s. 489.103(16). The term “contractor”
  228  also includes a licensed general contractor or building
  229  contractor, as those terms are defined in s. 489.105(3)(a) and
  230  (b), who provides construction management services, which
  231  include responsibility for scheduling and coordination in both
  232  preconstruction and construction phases and for the successful,
  233  timely, and economical completion of the construction project,
  234  or who provides program management services, which include
  235  responsibility for schedule control, cost control, and
  236  coordination in providing or procuring planning, design, and
  237  construction.
  238         (26) “Real property” means the land that is improved and
  239  the improvements thereon, including fixtures, except any such
  240  property owned by the state or any county, municipality, school
  241  board, or governmental agency, commission, or political
  242  subdivision, provided, however, that a private leasehold
  243  interest in such government-owned property which is improved and
  244  the leasehold improvements thereon shall be considered real
  245  property for purposes of this part.
  246         Section 4. Section 713.09, Florida Statutes, is amended to
  247  read:
  248         713.09 Single claim of lien.—A lienor may is required to
  249  record only one claim of lien covering his or her entire demand
  250  against the real property when the amount demanded is for labor
  251  or services or material furnished for more than one improvement
  252  under the same direct contract or multiple direct contracts. The
  253  single claim of lien is sufficient even though the improvement
  254  is for one or more improvements located on separate lots,
  255  parcels, or tracts of land. If materials to be used on one or
  256  more improvements on separate lots, parcels, or tracts of land
  257  under one direct contract are delivered by a lienor to a place
  258  designated by the person with whom the materialman contracted,
  259  other than the site of the improvement, the delivery to the
  260  place designated is prima facie evidence of delivery to the site
  261  of the improvement and incorporation in the improvement. The
  262  single claim of lien may be limited to a part of multiple lots,
  263  parcels, or tracts of land and their improvements or may cover
  264  all of the lots, parcels, or tracts of land and improvements. If
  265  a In each claim of lien under this section is for multiple
  266  direct contracts, the owner under the direct contracts contract
  267  must be the same person for all lots, parcels, or tracts of land
  268  against which a single claim of lien is recorded.
  269         Section 5. Paragraph (b) of subsection (2) of section
  270  713.10, Florida Statutes, is amended, and subsection (4) is
  271  added to that section, to read:
  272         713.10 Extent of liens.—
  273         (2)
  274         (b) The interest of the lessor is not subject to liens for
  275  improvements made by the lessee when:
  276         1. The lease, or a short form or a memorandum of the lease
  277  that contains the specific language in the lease prohibiting
  278  such liability, is recorded in the official records of the
  279  county where the premises are located before the recording of a
  280  notice of commencement for improvements to the premises and the
  281  terms of the lease expressly prohibit such liability; or
  282         2. The terms of the lease expressly prohibit such
  283  liability, and a notice advising that leases for the rental of
  284  premises on a parcel of land prohibit such liability has been
  285  recorded in the official records of the county in which the
  286  parcel of land is located before the recording of a notice of
  287  commencement for improvements to the premises, and the notice
  288  includes the following:
  289         a. The name of the lessor.
  290         b. The legal description of the parcel of land to which the
  291  notice applies.
  292         c. The specific language contained in the various leases
  293  prohibiting such liability.
  294         d. A statement that all or a majority of the leases entered
  295  into for premises on the parcel of land expressly prohibit such
  296  liability.
  297         3. The lessee is a mobile home owner who is leasing a
  298  mobile home lot in a mobile home park from the lessor.
  299  
  300  A notice that is consistent with subparagraph 2. effectively
  301  prohibits liens for improvements made by a lessee even if other
  302  leases for premises on the parcel do not expressly prohibit
  303  liens or if provisions of each lease restricting the application
  304  of liens are not identical.
  305         (4) The interest of the lessor is not subject to liens for
  306  improvements made by the lessee when the lessee is a mobile home
  307  owner who is leasing a mobile home lot in a mobile home park
  308  from the lessor.
  309         Section 6. Paragraphs (a) and (d) of subsection (1) of
  310  section 713.13, Florida Statutes, are amended to read:
  311         713.13 Notice of commencement.—
  312         (1)(a) Except for an improvement that is exempt under
  313  pursuant to s. 713.02(5), an owner or the owner’s authorized
  314  agent before actually commencing to improve any real property,
  315  or recommencing completion of any improvement after default or
  316  abandonment, whether or not a project has a payment bond
  317  complying with s. 713.23, shall record a notice of commencement
  318  in the clerk’s office and forthwith post either a certified copy
  319  thereof or a notarized statement that the notice of commencement
  320  has been filed for recording along with a copy thereof. The
  321  notice of commencement shall contain the following information:
  322         1. A description sufficient for identification of the real
  323  property to be improved. The description should include the
  324  legal description of the property and also should include the
  325  street address and tax folio number of the property if available
  326  or, if there is no street address available, such additional
  327  information as will describe the physical location of the real
  328  property to be improved.
  329         2. A general description of the improvement.
  330         3. The name and address of the owner, the owner’s interest
  331  in the site of the improvement, and the name and address of the
  332  fee simple titleholder, if other than such owner.
  333         4.The name and address of the lessee, if the A lessee who
  334  contracts for the improvements as is an owner as defined in s.
  335  713.01 under s. 713.01(23) and must be listed as the owner
  336  together with a statement that the ownership interest is a
  337  leasehold interest.
  338         5.4. The name and address of the contractor.
  339         6.5. The name and address of the surety on the payment bond
  340  under s. 713.23, if any, and the amount of such bond.
  341         7.6. The name and address of any person making a loan for
  342  the construction of the improvements.
  343         8.7. The name and address within the state of a person
  344  other than himself or herself who may be designated by the owner
  345  as the person upon whom notices or other documents may be served
  346  under this part; and service upon the person so designated
  347  constitutes service upon the owner.
  348         (d) A notice of commencement must be in substantially the
  349  following form:
  350  
  351  Permit No.....                                 Tax Folio No.....
  352                       NOTICE OF COMMENCEMENT                      
  353  State of....
  354  County of....
  355  
  356  The undersigned hereby gives notice that improvement will be
  357  made to certain real property, and in accordance with Chapter
  358  713, Florida Statutes, the following information is provided in
  359  this Notice of Commencement.
  360         1. Description of property: ...(legal description of the
  361  property, and street address if available)....
  362         2. General description of improvement:.....
  363         3.a. Owner: ...name and address....
  364         b. Owner’s phone number:.... Owner information or Lessee
  365  information if the Lessee contracted for the improvement:
  366         a. Name and address:.....
  367         b. Interest in property:.....
  368         c. Name and address of fee simple titleholder (if different
  369  from Owner listed above):.....
  370         4.a.Lessee, if the lessee contracted for the improvements:
  371  ...(name and address)....
  372         b. Lessee’s phone number:..... a.
  373         5.a. Contractor: ...(name and address)....
  374         b. Contractor’s phone number:.....
  375         6.5. Surety (if applicable, a copy of the payment bond is
  376  attached):
  377         a. Name and address:.....
  378         b. Phone number:.....
  379         c. Amount of bond: $.....
  380         7.a.6.a. Lender: ...(name and address)....
  381         b. Lender’s phone number:.....
  382         8.7. Persons within the State of Florida designated by
  383  Owner upon whom notices or other documents may be served as
  384  provided by Section 713.13(1)(a)8. 713.13(1)(a)7., Florida
  385  Statutes:
  386         a. Name and address:.....
  387         b. Phone numbers of designated persons:.....
  388         9.a.8.a. In addition to himself or herself, Owner
  389  designates ............ of ............ to receive a copy of the
  390  Lienor’s Notice as provided in Section 713.13(1)(b), Florida
  391  Statutes.
  392         b. Phone number of person or entity designated by
  393  owner:.....
  394         10.9. Expiration date of notice of commencement (the
  395  expiration date will be 1 year after from the date of recording
  396  unless a different date is specified).....
  397  
  398  WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
  399  EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
  400  PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
  401  STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
  402  TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
  403  POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
  404  INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
  405  ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
  406  COMMENCEMENT.
  407  
  408  ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
  409  Authorized Officer/Director/Partner/Manager)...
  410  
  411  ...(Signatory’s Title/Office)...
  412  
  413  STATE OF FLORIDA
  414  COUNTY OF ........
  415  
  416  The foregoing instrument was acknowledged before me by means of
  417  ☐ physical presence or ☐ online notarization, this .... day of
  418  ...., ...(year)..., by ...(name of person)... as ...(type of
  419  authority, . . . e.g. officer, trustee, attorney in fact)... for
  420  ...(name of party on behalf of whom instrument was executed)....
  421  
  422  ...(Signature of Notary Public - State of Florida)...
  423  
  424  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  425  
  426         Personally Known .... OR Produced Identification ....
  427  
  428         Type of Identification Produced............
  429         Section 7. Subsections (1), (3), and (4) of section
  430  713.132, Florida Statutes, are amended to read:
  431         713.132 Notice of termination.—
  432         (1) An owner may terminate the period of effectiveness of a
  433  notice of commencement by executing, swearing to, and recording
  434  a notice of termination that contains:
  435         (a) The same information as the notice of commencement;
  436         (b) The official records’ recording office document book
  437  and page reference numbers and recording date affixed by the
  438  recording office on of the recorded notice of commencement;
  439         (c) A statement of the date as of which the notice of
  440  commencement is terminated, which date may not be earlier than
  441  30 days after the notice of termination is recorded;
  442         (d) A statement specifying that the notice applies to all
  443  the real property subject to the notice of commencement or
  444  specifying the portion of such real property to which it
  445  applies;
  446         (e) A statement that all lienors have been paid in full;
  447  and
  448         (f) A statement that the owner has, before recording the
  449  notice of termination, served a copy of the notice of
  450  termination on the contractor and on each lienor who has a
  451  direct contract with the owner or who has timely served a notice
  452  to owner, and a statement that the owner will serve a copy of
  453  the notice of termination on each lienor who timely serves a
  454  notice to owner after the notice of termination has been
  455  recorded. The owner is not required to serve a copy of the
  456  notice of termination on any lienor who has executed a waiver
  457  and release of lien upon final payment in accordance with s.
  458  713.20.
  459         (3) An owner may not record a notice of termination at any
  460  time after except after completion of construction, or after
  461  construction ceases before completion and all lienors have been
  462  paid in full or pro rata in accordance with s. 713.06(4).
  463         (4) If an owner or a contractor, by fraud or collusion,
  464  knowingly makes any fraudulent statement or affidavit in a
  465  notice of termination or any accompanying affidavit, the owner
  466  and the contractor, or either of them, as the case may be, is
  467  liable to any lienor who suffers damages as a result of the
  468  filing of the fraudulent notice of termination,; and any such
  469  lienor has a right of action for damages occasioned thereby.
  470         (5)(4) A notice of termination must be served before
  471  recording on each lienor who has a direct contract with the
  472  owner and on each lienor who has timely and properly served a
  473  notice to owner in accordance with this part before the
  474  recording of the notice of termination. A notice of termination
  475  must be recorded in the official records of the county in which
  476  the project is located. If properly served before recording in
  477  accordance with this subsection, the notice of termination
  478  terminates the period of effectiveness of the notice of
  479  commencement 30 days after the notice of termination is recorded
  480  in the official records is effective to terminate the notice of
  481  commencement at the later of 30 days after recording of the
  482  notice of termination or a later the date stated in the notice
  483  of termination as the date on which the notice of commencement
  484  is terminated. However, if a lienor, who began work under the
  485  notice of commencement before its termination, lacks a direct
  486  contract with the owner, and timely serves his or her notice to
  487  owner after the notice of termination has been recorded, the
  488  owner must serve a copy of the notice of termination upon such
  489  lienor, and the termination of the notice of commencement as to
  490  that lienor is effective 30 days after service of the notice of
  491  termination if the notice of termination has been served
  492  pursuant to paragraph (1)(f) on the contractor and on each
  493  lienor who has a direct contract with the owner or who has
  494  served a notice to owner.
  495         Section 8. Section 713.18, Florida Statutes, is amended to
  496  read:
  497         713.18 Manner of serving documents notices and other
  498  instruments.—
  499         (1) Service of any document notices, claims of lien,
  500  affidavits, assignments, and other instruments permitted or
  501  required under this part, s. 255.05, or s. 337.18, or copies
  502  thereof when so permitted or required, unless otherwise
  503  specifically provided in this part, must be made by one of the
  504  following methods:
  505         (a) By hand actual delivery to the person to be served; if
  506  a partnership, to one of the partners; if a corporation, to an
  507  officer, director, managing agent, or business agent; or, if a
  508  limited liability company, to a member or manager.
  509         (b) By common carrier delivery service or by registered,
  510  Global Express Guaranteed, or certified mail to the person to be
  511  served, with postage or shipping paid by the sender and with
  512  evidence of delivery, which may be in an electronic format.
  513         (c)By posting on the site of the improvement if service as
  514  provided by paragraph (a) or paragraph (b) cannot be
  515  accomplished.
  516         (2) Notwithstanding subsection (1), Service of a notice to
  517  owner or a preliminary notice to contractor under s. 255.05, s.
  518  337.18, s. 713.06, or s. 713.23 is effective as of the date of
  519  mailing, and the requirements for service under this section
  520  have been satisfied, if:
  521         (a) The notice is mailed by registered, Global Express
  522  Guaranteed, or certified mail, with postage prepaid, to the
  523  person to be served at any of the addresses set forth in
  524  subsection (3);
  525         (b) The notice is mailed within 40 days after the date the
  526  lienor first furnishes labor, services, or materials; and
  527         (c)1. The person who served the notice maintains a
  528  registered or certified mail log that shows the registered or
  529  certified mail number issued by the United States Postal
  530  Service, the name and address of the person served, and the date
  531  stamp of the United States Postal Service confirming the date of
  532  mailing; or
  533         2. The person who served the notice maintains electronic
  534  tracking records approved or generated by the United States
  535  Postal Service containing the postal tracking number, the name
  536  and address of the person served, and verification of the date
  537  of receipt by the United States Postal Service.
  538         (3)(a) Notwithstanding subsection (1), service of a
  539  document under an instrument pursuant to this section is
  540  effective on the date of mailing or shipping, and the
  541  requirements for service under this section have been satisfied,
  542  the instrument if the document it:
  543         1. Is sent, using one of the methods specified in paragraph
  544  (1)(b), to the last address shown in the notice of commencement
  545  or any amendment thereto or, in the absence of a notice of
  546  commencement, to the last address shown in the building permit
  547  application, or to the last known address of the person to be
  548  served; and
  549         2. Is returned as being “refused,” “moved, not
  550  forwardable,” or “unclaimed,” or is otherwise not delivered or
  551  deliverable through no fault of the person serving the document
  552  item.
  553         (b) If the address shown in the notice of commencement or
  554  any amendment to the notice of commencement, or, in the absence
  555  of a notice of commencement, in the building permit application,
  556  is incomplete for purposes of mailing or delivery, the person
  557  serving the document item may complete the address and properly
  558  format it according to United States Postal Service addressing
  559  standards using information obtained from the property appraiser
  560  or another public record without affecting the validity of
  561  service under this section.
  562         (4) A document notice served by a lienor on one owner or
  563  one partner of a partnership owning the real property is deemed
  564  notice to all owners and partners.
  565         Section 9. Subsections (6) and (8) of section 713.20,
  566  Florida Statutes, are amended to read:
  567         713.20 Waiver or release of liens.—
  568         (6) A person may not require a lienor to furnish a lien
  569  waiver or release of lien that is different from the forms in
  570  subsection (4) or subsection (5) in exchange for, or to induce
  571  payment of, a progress payment or final payment, unless the
  572  lienor has entered into a direct contract that requires the
  573  lienor to furnish a waiver or release that is different from the
  574  forms in subsection (4) or subsection (5).
  575         (8) Any provisions in a lien waiver or lien release that
  576  are is not related to the waiver or release of lien rights as
  577  provided in this section are unenforceable, unless the lienor
  578  has otherwise agreed to those provisions in the lienor’s direct
  579  contract substantially similar to the forms in subsections (4)
  580  and (5) is enforceable in accordance with the terms of the lien
  581  waiver or lien release.
  582         Section 10. Paragraph (d) of subsection (1) of section
  583  713.23, Florida Statutes, is amended to read:
  584         713.23 Payment bond.—
  585         (1)
  586         (d) In addition, a lienor who has not received payment for
  587  furnishing his or her labor, services, or materials must, as a
  588  condition precedent to recovery under the bond, serve a written
  589  notice of nonpayment on to the contractor and a copy of the
  590  notice on the surety. The notice must be under oath and served
  591  during the progress of the work or thereafter, but may not be
  592  served later than 90 days after the final furnishing of labor,
  593  services, or materials by the lienor, or, with respect to rental
  594  equipment, later than 90 days after the date the rental
  595  equipment was on the job site and available for use. A notice of
  596  nonpayment that includes sums for retainage must specify the
  597  portion of the amount claimed for retainage. The required notice
  598  satisfies this condition precedent with respect to the payment
  599  described in the notice of nonpayment, including unpaid finance
  600  charges due under the lienor’s contract, and with respect to any
  601  other payments which become due to the lienor after the date of
  602  the notice of nonpayment. The time period for serving a notice
  603  of nonpayment is shall be measured from the last day of
  604  furnishing labor, services, or materials by the lienor and may
  605  not be measured by other standards, such as the issuance of a
  606  certificate of occupancy or the issuance of a certificate of
  607  substantial completion. The failure of a lienor to receive
  608  retainage sums not in excess of 10 percent of the value of
  609  labor, services, or materials furnished by the lienor is not
  610  considered a nonpayment requiring the service of the notice
  611  provided under this paragraph. If the payment bond is not
  612  recorded before commencement of construction, the time period
  613  for the lienor to serve a notice of nonpayment may at the option
  614  of the lienor be calculated from the date specified in this
  615  section or the date the lienor is served a copy of the bond.
  616  However, the limitation period for commencement of an action on
  617  the payment bond as established in paragraph (e) may not be
  618  expanded. The negligent inclusion or omission of any information
  619  in the notice of nonpayment that has not prejudiced the
  620  contractor or surety does not constitute a default that operates
  621  to defeat an otherwise valid bond claim. A lienor who serves a
  622  fraudulent notice of nonpayment forfeits his or her rights under
  623  the bond. A notice of nonpayment is fraudulent if the lienor has
  624  willfully exaggerated the amount unpaid, willfully included a
  625  claim for work not performed or materials not furnished for the
  626  subject improvement, or prepared the notice with such willful
  627  and gross negligence as to amount to a willful exaggeration.
  628  However, a minor mistake or error in a notice of nonpayment, or
  629  a good faith dispute as to the amount unpaid, does not
  630  constitute a willful exaggeration that operates to defeat an
  631  otherwise valid claim against the bond. The service of a
  632  fraudulent notice of nonpayment is a complete defense to the
  633  lienor’s claim against the bond. The notice under this paragraph
  634  must include the following information, current as of the date
  635  of the notice, and must be in substantially the following form:
  636  
  637                        NOTICE OF NONPAYMENT                       
  638  
  639  To ...(name of contractor and address)...
  640  
  641  ...(name of surety and address)...
  642  
  643  The undersigned lienor notifies you that:
  644         1. The lienor has furnished ...(describe labor, services,
  645  or materials)... for the improvement of the real property
  646  identified as ...(property description).... The corresponding
  647  amount unpaid to date is $...., of which $.... is unpaid
  648  retainage.
  649         2. The lienor has been paid to date the amount of $.... for
  650  previously furnishing ...(describe labor, services, or
  651  materials)... for this improvement.
  652         3. The lienor expects to furnish ...(describe labor,
  653  services, or materials)... for this improvement in the future
  654  (if known), and the corresponding amount expected to become due
  655  is $.... (if known).
  656  
  657  I declare that I have read the foregoing Notice of Nonpayment
  658  and that the facts stated in it are true to the best of my
  659  knowledge and belief.
  660  
  661  DATED on ............, .........
  662  
  663  ...(signature and address of lienor)...
  664  
  665  STATE OF FLORIDA
  666  COUNTY OF........
  667  
  668  The foregoing instrument was sworn to (or affirmed) and
  669  subscribed before me by means of ☐ physical presence or ☐ online
  670  notarization, this .... day of ...., ...(year)..., by ...(name
  671  of signatory)....
  672         ...(Signature of Notary Public - State of Florida)...
  673         ...(Print, Type, or Stamp Commissioned Name of Notary
  674  Public)...
  675  
  676  Personally Known ........ OR Produced Identification ........
  677  
  678  Type of Identification Produced	
  679         Section 11. Subsections (3) and (5) of section 713.235,
  680  Florida Statutes, are amended to read:
  681         713.235 Waivers of right to claim against payment bond;
  682  forms.—
  683         (3) A person may not require a claimant to furnish a waiver
  684  that is different from the forms in subsections (1) and (2) in
  685  exchange for, or to induce payment of, a progress payment or
  686  final payment, unless the claimant has entered into a direct
  687  contract that requires the claimant to furnish a waiver that is
  688  different from the forms in subsections (1) and (2).
  689         (5) Any provisions in a waiver that are is not related to
  690  the waiver of a claim against the payment bond as provided in
  691  this section are unenforceable, unless the claimant has
  692  otherwise agreed to those provisions in the claimant’s direct
  693  contract substantially similar to the forms in this section is
  694  enforceable in accordance with its terms.
  695         Section 12. Section 713.29, Florida Statutes, is amended to
  696  read:
  697         713.29 Attorney Attorney’s fees.—In any action brought to
  698  enforce a lien, including a lien that has been transferred to
  699  security, or to enforce a claim against a bond under this part,
  700  the prevailing party is entitled to recover a reasonable fee for
  701  the services of her or his attorney for trial and appeal or for
  702  arbitration, in an amount to be determined by the court, which
  703  fee must be taxed as part of the prevailing party’s costs, as
  704  allowed in equitable actions.
  705         Section 13. This act shall take effect July 1, 2020.