House Bill 0681c1

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    Florida House of Representatives - 1999              CS/HB 681

        By the Committee on Real Property & Probate and
    Representative Merchant





  1                      A bill to be entitled

  2         An act relating to construction liens and

  3         bonds; amending s. 255.05, F.S., relating to

  4         payment bonds of contractors constructing

  5         public buildings; providing that the time

  6         periods required for providing certain notices

  7         or bringing certain actions are not determined

  8         by the issuance of a certificate of occupancy

  9         or a certificate of substantial completion;

10         amending s. 713.06, F.S.; clarifying certain

11         notice requirements with respect to perfecting

12         a lien for labor, services, or materials

13         furnished under contract; amending s. 713.08,

14         F.S.; providing that the time period required

15         for recording a claim of lien is not determined

16         by the issuance of a certificate of occupancy

17         or a certificate of substantial completion;

18         amending s. 713.135, F.S.; clarifying

19         circumstances under which an entity issuing a

20         building permit is subject to disciplinary

21         procedures; providing an exception; amending s.

22         713.18, F.S., relating to service of notices

23         and other instruments; providing for overnight

24         delivery or second-day delivery under certain

25         circumstances; amending s. 713.23, F.S.;

26         providing that the time periods required for

27         serving a notice of nonpayment or bringing

28         certain actions are not determined by the

29         issuance of a certificate of occupancy or a

30         certificate of substantial completion;

31         providing an effective date.

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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Paragraph (a) of subsection (2) of section

  4  255.05, Florida Statutes, 1998 Supplement, is amended to read:

  5         255.05  Bond of contractor constructing public

  6  buildings; form; action by materialmen.--

  7         (2)(a)1.  If a claimant is no longer furnishing labor,

  8  services, or materials on a project, a contractor or the

  9  contractor's agent or attorney may elect to shorten the

10  prescribed time in this paragraph within which an action to

11  enforce any claim against a payment bond provided pursuant to

12  this section may be commenced by recording in the clerk's

13  office a notice in substantially the following form:

14

15                    NOTICE OF CONTEST OF CLAIM

16                       AGAINST PAYMENT BOND

17

18

19  To: ...(Name and address of claimant)...

20         You are notified that the undersigned contests your

21  notice of nonpayment, dated ............, ........, and served

22  on the undersigned on ............, ........, and that the

23  time within which you may file suit to enforce your claim is

24  limited to 60 days after the date of service of this notice.

25

26         DATED on ............, .........

27

28

29  Signed:...(Contractor or Attorney)...

30

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  1  The claim of any claimant upon whom such notice is served and

  2  who fails to institute a suit to enforce his or her claim

  3  against the payment bond within 60 days after service of such

  4  notice shall be extinguished automatically. The clerk shall

  5  mail a copy of the notice of contest to the claimant at the

  6  address shown in the notice of nonpayment or most recent

  7  amendment thereto and shall certify to such service on the

  8  face of such notice and record the notice. Service is complete

  9  upon mailing.

10         2.  A claimant, except a laborer, who is not in privity

11  with the contractor shall, before commencing or not later than

12  45 days after commencing to furnish labor, materials, or

13  supplies for the prosecution of the work, furnish the

14  contractor with a notice that he or she intends to look to the

15  bond for protection. A claimant who is not in privity with the

16  contractor and who has not received payment for his or her

17  labor, materials, or supplies shall deliver to the contractor

18  and to the surety written notice of the performance of the

19  labor or delivery of the materials or supplies and of the

20  nonpayment. The notice of nonpayment may be served at any time

21  during the progress of the work or thereafter but not before

22  45 days after the first furnishing of labor, services, or

23  materials, and not later than 90 days after the final

24  furnishing of the labor, services, or materials by the

25  claimant or, with respect to rental equipment, not later than

26  90 days after the date that the rental equipment was last on

27  the job site available for use. No action for the labor,

28  materials, or supplies may be instituted against the

29  contractor or the surety unless both notices have been given.

30  An action, except for an action exclusively for recovery of

31  retainage, must be instituted against the contractor or the

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  1  surety on the payment bond or the payment provisions of a

  2  combined payment and performance bond within 1 year after the

  3  performance of the labor or completion of delivery of the

  4  materials or supplies. An action exclusively for recovery of

  5  retainage must be instituted against the contractor or the

  6  surety within 1 year after the performance of the labor or

  7  completion of delivery of the materials or supplies, or within

  8  90 days after the contractor's receipt of final payment (or

  9  the payment estimate containing the owner's final

10  reconciliation of quantities if no further payment is earned

11  and due as a result of deductive adjustments) by the

12  contractor or surety, whichever comes last. A claimant may not

13  waive in advance his or her right to bring an action under the

14  bond against the surety.  In any action brought to enforce a

15  claim against a payment bond under this section, the

16  prevailing party is entitled to recover a reasonable fee for

17  the services of his or her attorney for trial and appeal or

18  for arbitration, in an amount to be determined by the court,

19  which fee must be taxed as part of the prevailing party's

20  costs, as allowed in equitable actions. The time periods for

21  service of a notice of nonpayment or for bringing an action

22  against a contractor or a surety shall be measured from the

23  last day of furnishing labor, services, or materials by the

24  claimant and shall not be measured by other standards, such as

25  the issuance of a certificate of occupancy or the issuance of

26  a certificate of substantial completion.

27         Section 2.  Subsection (2) of section 713.06, Florida

28  Statutes, 1998 Supplement, is amended to read:

29         713.06  Liens of persons not in privity; proper

30  payments.--

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  1         (2)(a)  All lienors under this section, except

  2  laborers, as a prerequisite to perfecting a lien under this

  3  chapter and recording a claim of lien, must serve a notice on

  4  the owner setting forth the lienor's name and address, a

  5  description sufficient for identification of the real

  6  property, and the nature of the services or materials

  7  furnished or to be furnished. A sub-subcontractor or a

  8  materialman to a subcontractor must serve a copy of the notice

  9  on the contractor as a prerequisite to perfecting a lien under

10  this chapter and recording a claim of lien. A materialman to a

11  sub-subcontractor must serve a copy of the notice to owner on

12  the contractor as a prerequisite to perfecting a lien under

13  this chapter and recording a claim of lien. A materialman to a

14  sub-subcontractor shall serve the notice to owner on the

15  subcontractor if the materialman knows the name and address of

16  the subcontractor. The notice must be served before

17  commencing, or not later than 45 days after commencing, to

18  furnish his or her labor, services, or materials, but, in any

19  event, before the date of the owner's disbursement of the

20  final payment after the contractor has furnished the affidavit

21  under subparagraph (3)(d)1. The notice must be served

22  regardless of the method of payments by the owner, whether

23  proper or improper, and does not give to the lienor serving

24  the notice any priority over other lienors in the same

25  category; and the failure to serve the notice, or to timely

26  serve it, is a complete defense to enforcement of a lien by

27  any person. The serving of the notice does not dispense with

28  recording the claim of lien. The notice is not a lien, cloud,

29  or encumbrance on the real property nor actual or constructive

30  notice of any of them.

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  1         (b)  If the owner, in his or her notice of

  2  commencement, has designated a person in addition to himself

  3  or herself to receive a copy of such lienor's notice, as

  4  provided in s. 713.13(1)(b), the lienor shall serve a copy of

  5  his or her notice on the person so designated. The failure by

  6  the lienor to serve such copy, however, does not invalidate an

  7  otherwise valid lien.

  8         (c)  The notice may must be in substantially the

  9  following form and must include the information and the

10  warning contained in the following form:

11

12  WARNING TO OWNER: UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE

13  THAT WE ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY

14  AND YOUR PAYING TWICE.

15

16  TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN

17  RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR.

18

19                         NOTICE TO OWNER

20

21  To ...(Owner's name and address)...

22

23  The undersigned hereby informs you that he or she has

24  furnished or is furnishing services or materials as follows:

25  ...(General description of services or materials)... for the

26  improvement of the real property identified as ...(property

27  description)... under an order given by.............

28

29  Florida law prescribes the serving of this notice and

30  restricts your right to make payments under your contract in

31  accordance with Section 713.06, Florida Statutes.

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  1

  2                    IMPORTANT INFORMATION FOR

  3                         YOUR PROTECTION

  4

  5         Under Florida's laws, those who work on your property

  6  or provide materials and are not paid have a right to enforce

  7  their claim for payment against your property. This claim is

  8  known as a construction lien.

  9         If your contractor fails to pay subcontractors or

10  material suppliers or neglects to make other legally required

11  payments, the people who are owed money may look to your

12  property for payment, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN

13  FULL.

14

15  PROTECT YOURSELF:

16         --RECOGNIZE that this Notice to Owner may result in a

17  lien against your property unless all those supplying a Notice

18  to Owner have been paid.

19         --LEARN more about the Construction Lien Law, Chapter

20  713, Part I, Florida Statutes, and the meaning of this notice

21  by contacting an attorney or the Florida Department of

22  Business and Professional Regulation.

23                                      ...(Lienor's Signature)...

24                                           ...(Lienor's Name)...

25                                        ...(Lienor's Address)...

26

27  Copies to: ...(Those persons listed in Section 713.06(2)(a)

28  and (b), Florida Statutes)...

29

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  1  The form may be combined with a notice to contractor given

  2  under s. 713.23 or s. 255.05 and, if so, may be entitled

  3  "NOTICE TO OWNER/NOTICE TO CONTRACTOR."

  4

  5         (d)  A notice to an owner served on a lender must be in

  6  writing, must be served in accordance with s. 713.18, and

  7  shall be addressed to the persons designated, if any, and to

  8  the place and address designated in the notice of

  9  commencement.  Any lender who, after receiving a notice

10  provided under this subsection, pays a contractor on behalf of

11  the owner for an improvement shall make proper payments as

12  provided in paragraph (3)(c) as to each such notice received

13  by the lender. The failure of a lender to comply with this

14  paragraph renders the lender liable to the owner for all

15  damages sustained by the owner as a result of that failure.

16  This paragraph does not give any person other than an owner a

17  claim or right of action against a lender for the failure of

18  the lender to comply with this paragraph.  Further, this

19  paragraph does not prohibit a lender from disbursing

20  construction funds at any time directly to the owner, in which

21  event the lender has no obligation to make proper payments

22  under this paragraph.

23         (e)  A lienor, in the absence of a recorded notice of

24  commencement, may rely on the information contained in the

25  building permit application to serve the notice prescribed in

26  paragraphs (a), (b), and (c).

27         (f)  If a lienor has substantially complied with the

28  provisions of paragraphs (a), (b), and (c), errors or

29  omissions do not prevent the enforcement of a claim against a

30  person who has not been adversely affected by such omission or

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  1  error.  However, a lienor must strictly comply with the time

  2  requirements of paragraph (a).

  3         Section 3.  Subsection (5) of section 713.08, Florida

  4  Statutes, 1998 Supplement, is amended to read:

  5         713.08  Claim of lien.--

  6         (5)  The claim of lien may be recorded at any time

  7  during the progress of the work or thereafter but not later

  8  than 90 days after the final furnishing of the labor or

  9  services or materials by the lienor; or, with respect to

10  rental equipment, within 90 days after the date that the

11  rental equipment was last on the job site available for use;

12  provided if the original contractor defaults or the contract

13  is terminated under s. 713.07(4), no claim for a lien

14  attaching prior to such default shall be recorded after 90

15  days from the date of such default or 90 days after the final

16  performance of labor or services or furnishing of materials,

17  whichever occurs first. The time period for recording a claim

18  of lien shall be measured from the last day of furnishing

19  labor, services, or materials by the lienor and shall not be

20  measured by other standards, such as the issuance of a

21  certificate of occupancy or the issuance of a certificate of

22  substantial completion. The claim of lien shall be recorded in

23  the clerk's office.  If such real property is situated in two

24  or more counties, the claim of lien shall be recorded in the

25  clerk's office in each of such counties.  The recording of the

26  claim of lien shall be constructive notice to all persons of

27  the contents and effect of such claim.  The validity of the

28  lien and the right to record a claim therefor shall not be

29  affected by the insolvency, bankruptcy, or death of the owner

30  before the claim of lien is recorded.

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  1         Section 4.  Subsection (1) of section 713.135, Florida

  2  Statutes, 1998 Supplement, is amended to read:

  3         713.135  Notice of commencement and applicability of

  4  lien.--

  5         (1)  When any person applies for a building permit, the

  6  authority issuing such permit shall:

  7         (a)  Print on the face of each permit card in no less

  8  than 18-point, capitalized, boldfaced type:  "WARNING TO

  9  OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY

10  RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.

11  IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR

12  AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT."

13         (b)  Provide the applicant and the owner of the real

14  property upon which improvements are to be constructed with a

15  printed statement stating that the right, title, and interest

16  of the person who has contracted for the improvement may be

17  subject to attachment under the Construction Lien Law. The

18  Department of Business and Professional Regulation shall

19  furnish, for distribution, the statement described in this

20  paragraph, and the statement must be a summary of the

21  Construction Lien Law and must include an explanation of the

22  provisions of the Construction Lien Law relating to the

23  recording, and the posting of copies, of notices of

24  commencement and a statement encouraging the owner to record a

25  notice of commencement and post a copy of the notice of

26  commencement thereof in accordance with s. 713.13. However,

27  the failure by the authorities to provide the summary does not

28  subject the issuing authority to liability.

29         (c)  Inform each applicant who is not the person whose

30  right, title, and interest is subject to attachment that, as a

31  condition to the issuance of a building permit, the applicant

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  1  must promise in good faith that the statement will be

  2  delivered to the person whose property is subject to

  3  attachment.

  4         (d)  Furnish to the applicant two or more copies of a

  5  form of notice of commencement conforming with s. 713.13.  If

  6  the direct contract is greater than $2,500, the applicant

  7  shall file with the issuing authority prior to the first

  8  inspection either a certified copy of the recorded notice of

  9  commencement or a notarized statement that the notice of

10  commencement has been filed for recording, along with a copy

11  thereof.  In the absence of the filing of a certified copy of

12  the recorded notice of commencement, the issuing authority

13  shall not perform or approve subsequent inspections until the

14  applicant files by mail, facsimile, hand delivery, or any

15  other means such certified copy with the issuing authority.

16  The certified copy of the notice of commencement must contain

17  the name and address of the owner, the name and address of the

18  contractor, and the location or address of the property being

19  improved. The issuing authority shall verify that the

20  information in the certified copy of the notice of

21  commencement is consistent with the information in the

22  building permit application. The issuing authority shall

23  provide the recording information on the certified copy of the

24  recorded notice of commencement to any person upon request.

25  This subsection does not require Nothing herein shall be

26  interpreted as requiring or encouraging the recording of a

27  notice of commencement prior to the issuance of a building

28  permit. If a local government requires a separate permit or

29  inspection for installation of temporary electrical service or

30  other temporary utility service, land clearing, or other

31  preliminary site work, such permits may be issued and such

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  1  inspections may be conducted without providing the issuing

  2  authority with a certified copy of a recorded notice of

  3  commencement or a notarized statement regarding a recorded

  4  notice of commencement. This subsection does not apply to a

  5  direct contract to repair or replace an existing heating or

  6  air-conditioning system in an amount less than $5,000.

  7         Section 5.  Section 713.18, Florida Statutes, 1998

  8  Supplement, is amended to read:

  9         713.18  Manner of serving notices and other

10  instruments.--

11         (1)  Service of notices, claims of lien, affidavits,

12  assignments, and other instruments permitted or required under

13  this part, or copies thereof when so permitted or required,

14  unless otherwise specifically provided in this part, must be

15  made by one of the following methods:

16         (a)  By actual delivery to the person to be served; or,

17  if a partnership, to one of the partners; or, if a

18  corporation, to an officer, director, managing agent, or

19  business agent thereof.

20         (b)  By mailing the same, postage prepaid, by

21  registered or certified mail to the person to be served at her

22  or his last known address and evidence of delivery. If a

23  notice to owner, a preliminary notice under s. 713.23, or a

24  preliminary notice under s. 255.05 is mailed pursuant to this

25  paragraph within 40 days after the date the lienor first

26  furnishes labor, services, or materials, service of that

27  notice is effective as of the date of mailing if the person

28  who served the notice maintains a registered or certified mail

29  log that shows the date the notice was served, the registered

30  or certified mail number issued by the United States Postal

31  Service, the name and address of the person served, and the

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  1  date stamp of the United States Postal Service confirming the

  2  date of mailing. If an instrument served pursuant to this

  3  paragraph to the last address shown in the notice of

  4  commencement or any amendment thereto or, in the absence of a

  5  notice of commencement, to the last address shown in the

  6  building permit application is not received, but is returned

  7  by the United States Postal Service as being "refused,"

  8  "moved, not forwardable," or "unclaimed," or is otherwise not

  9  delivered or deliverable through no fault of the person

10  serving the item, then service is effective as of the date of

11  mailing.

12         (c)  By overnight delivery or second-day delivery using

13  a delivery service that maintains, in the ordinary course of

14  business, records that specify when and where delivery was

15  made.

16         (d)(c)  If none neither of the foregoing methods can be

17  accomplished, by posting on the premises.

18         (2)  If the real property is owned by more than one

19  person, a lienor may serve any notices or other papers under

20  this part on any one of such owners, and such notice is deemed

21  notice to all owners.

22         (3)  Service of notices or copies thereof, permitted or

23  required under this part, may be made by facsimile

24  transmission when the person being served has listed that

25  person's facsimile phone number in the Notice of Commencement.

26  The lienor's facsimile confirmation sheet with the correct

27  facsimile phone number shall be proof of the date and time the

28  notice was served.

29         Section 6.  Paragraphs (d) and (e) of subsection (1) of

30  section 713.23, Florida Statutes, 1998 Supplement, are amended

31  to read:

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  1         713.23  Payment bond.--

  2         (1)

  3         (d)  In addition, a lienor is required, as a condition

  4  precedent to recovery under the bond, to serve a written

  5  notice of nonpayment to the contractor and the surety not

  6  later than 90 days after the final furnishing of labor,

  7  services, or materials by the lienor.  A written notice

  8  satisfies this condition precedent with respect to the payment

  9  described in the notice of nonpayment and with respect to any

10  other payments which become due to the lienor after the date

11  of the notice of nonpayment. The time period for serving a

12  written notice of nonpayment shall be measured from the last

13  day of furnishing labor, services, or materials by the lienor

14  and shall not be measured by other standards, such as the

15  issuance of a certificate of occupancy or the issuance of a

16  certificate of substantial completion. The failure of a lienor

17  to receive retainage sums not in excess of 10 percent of the

18  value of labor, services, or materials furnished by the lienor

19  is not considered a nonpayment requiring the service of the

20  notice provided under this paragraph. The notice under this

21  paragraph may be in substantially the following form:

22

23                       NOTICE OF NONPAYMENT

24

25  To ...(name of contractor and address)...

26

27  ...(name of surety and address)...

28

29  The undersigned notifies you that he or she has furnished

30  ...(describe labor, services, or materials)... for the

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  1  improvement of the real property identified as ...(property

  2  description)....  The amount now due and unpaid is $.....

  3

  4                         ...(signature and address of lienor)...

  5

  6         (e)  No action for the labor or materials or supplies

  7  may be instituted or prosecuted against the contractor or

  8  surety unless both notices have been given.  No action shall

  9  be instituted or prosecuted against the contractor or against

10  the surety on the bond under this section after 1 year from

11  the performance of the labor or completion of delivery of the

12  materials and supplies. The time period for bringing an action

13  against the contractor or surety on the bond shall be measured

14  from the last day of furnishing labor, services, or materials

15  by the lienor and shall not be measured by other standards,

16  such as the issuance of a certificate of occupancy or the

17  issuance of a certificate of substantial completion. A

18  contractor or the contractor's agent or attorney may elect to

19  shorten the prescribed time within which an action to enforce

20  any claim against a payment bond provided pursuant to this

21  section or s. 713.245 may be commenced by recording in the

22  clerk's office a notice in substantially the following form:

23

24                    NOTICE OF CONTEST OF CLAIM

25                       AGAINST PAYMENT BOND

26

27  To:  ...(Name and address of lienor)...

28         You are notified that the undersigned contests your

29  notice of nonpayment, dated ...., ...., and served on the

30  undersigned on ...., ...., and that the time within which you

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  1  may file suit to enforce your claim is limited to 60 days from

  2  the date of service of this notice.

  3

  4  DATED on ...., .....

  5

  6  Signed: ...(Contractor or Attorney)...

  7

  8

  9  The claim of any lienor upon whom such notice is served and

10  who fails to institute a suit to enforce his or her claim

11  against the payment bond within 60 days after service of such

12  notice shall be extinguished automatically. The clerk shall

13  mail a copy of the notice of contest to the lienor at the

14  address shown in the notice of nonpayment or most recent

15  amendment thereto and shall certify to such service on the

16  face of such notice and record the notice. Service is complete

17  upon mailing.

18         Section 7.  This act shall take effect October 1, 1999.

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