Florida Senate - 2013                                    SB 1136
       
       
       
       By Senator Joyner
       
       
       
       
       19-00928-13                                           20131136__
    1                        A bill to be entitled                      
    2         An act relating to construction liens; amending s.
    3         713.015, F.S.; revising a mandatory notice provision
    4         in contracts between owners and contractors; amending
    5         s. 713.06, F.S.; revising notice requirements relating
    6         to liens of persons not in privity; amending s.
    7         713.13, F.S.; deleting a provision classifying certain
    8         payments as improper payments; revising the notice of
    9         commencement form to conform to changes made by the
   10         act and to provide an additional warning; amending s.
   11         713.135, F.S.; revising the building permit card and
   12         application to conform to changes made by the act and
   13         to provide an additional warning; providing an
   14         effective date.
   15  
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Subsection (1) of section 713.015, Florida
   19  Statutes, is amended to read:
   20         713.015 Mandatory provisions for direct contracts.—
   21         (1) Any direct contract greater than $2,500 between an
   22  owner and a contractor, related to improvements to real property
   23  consisting of single or multiple family dwellings up to and
   24  including four units, must contain the following notice
   25  provision printed in no less than 12-point, capitalized,
   26  boldfaced type on the front page of the contract or on a
   27  separate page, signed by the owner and dated:
   28  
   29  ACCORDING TO FLORIDA’S CONSTRUCTION LIEN LAW (SECTIONS 713.001
   30  713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR
   31  PROVIDE MATERIALS AND SERVICES AND ARE NOT PAID IN FULL HAVE A
   32  RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY.
   33  THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN. IF YOUR CONTRACTOR
   34  OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB
   35  SUBCONTRACTORS, OR MATERIAL SUPPLIERS, THOSE PEOPLE WHO ARE OWED
   36  MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE
   37  ALREADY PAID YOUR CONTRACTOR IN FULL. IF YOU FAIL TO PAY YOUR
   38  CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR
   39  PROPERTY. THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE
   40  SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER
   41  SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED
   42  TO PAY. TO PROTECT YOURSELF, YOU SHOULD STIPULATE IN THIS
   43  CONTRACT THAT BEFORE EACH ANY PAYMENT IS MADE, YOUR CONTRACTOR
   44  IS REQUIRED TO PROVIDE YOU AND YOUR LENDER WITH A NOTARIZED LIST
   45  OF PERSONS OR COMPANIES, INCLUDING ADDRESSES AND PHONE NUMBERS,
   46  THAT ARE OWED MONEY FOR THE PAYMENT BEING MADE, AND TO PROVIDE
   47  YOU WITH A WRITTEN RELEASE OF LIEN FROM ANY PERSON OR COMPANY
   48  THAT HAS PROVIDED TO YOU A “NOTICE TO OWNER.” FLORIDA’S
   49  CONSTRUCTION LIEN LAW IS COMPLEX, AND IT IS RECOMMENDED THAT YOU
   50  CONSULT AN ATTORNEY.
   51  
   52  Signed: ...(Contractor)......(Date) ...
   53  Signed: ...(Owner)......(Date) ...
   54         Section 2. Paragraph (a) of subsection (2) of section
   55  713.06, Florida Statutes, is amended to read:
   56         713.06 Liens of persons not in privity; proper payments.—
   57         (2)(a) All lienors under this section, except laborers, as
   58  a prerequisite to perfecting a lien under this chapter and
   59  recording a claim of lien, must serve a notice on the owner
   60  setting forth the lienor’s name and address, a description
   61  sufficient for identification of the real property, and the
   62  nature of the services or materials furnished or to be
   63  furnished. A sub-subcontractor or a materialman to a
   64  subcontractor must serve a copy of the notice on the contractor
   65  as a prerequisite to perfecting a lien under this chapter and
   66  recording a claim of lien. A materialman to a sub-subcontractor
   67  must serve a copy of the notice to owner on the contractor as a
   68  prerequisite to perfecting a lien under this chapter and
   69  recording a claim of lien. A materialman to a sub-subcontractor
   70  shall serve the notice to owner on the subcontractor if the
   71  materialman knows the name and address of the subcontractor. The
   72  notice must be served before commencing, or not later than 45
   73  days after commencing, to furnish his or her labor, services, or
   74  materials or before the date on which payment is due to the
   75  materialman for furnishing his or her labor, services, or
   76  materials, but, in any event, before the date of the owner’s
   77  disbursement of the final payment after the contractor has
   78  furnished the affidavit under subparagraph (3)(d)1. The notice
   79  must be served regardless of the method of payments by the
   80  owner, whether proper or improper, and does not give to the
   81  lienor serving the notice any priority over other lienors in the
   82  same category; and the failure to serve the notice, or to timely
   83  serve it, is a complete defense to enforcement of a lien by any
   84  person. The serving of the notice does not dispense with
   85  recording the claim of lien. The notice is not a lien, cloud, or
   86  encumbrance on the real property nor actual or constructive
   87  notice of any of them.
   88         Section 3. Paragraphs (c) and (d) of subsection (1) of
   89  section 713.13, Florida Statutes, are amended to read:
   90         713.13 Notice of commencement.—
   91         (1)
   92         (c) If the contract between the owner and a contractor
   93  named in the notice of commencement expresses a period of time
   94  for completion for the construction of the improvement greater
   95  than 1 year, the notice of commencement must state that it is
   96  effective for a period of 1 year plus any additional period of
   97  time. Any payments made by the owner after the expiration of the
   98  notice of commencement are considered improper payments.
   99         (d) A notice of commencement must be in substantially the
  100  following form:
  101  Permit No. ....						Tax Folio No. ....
  102                       NOTICE OF COMMENCEMENT                      
  103  State of ....
  104  County of ....
  105  The undersigned hereby gives notice that improvement will be
  106  made to certain real property, and in accordance with Chapter
  107  713, Florida Statutes, the following information is provided in
  108  this Notice of Commencement.
  109         1. Description of property: ...(legal description of the
  110  property, and street address if available)....
  111         2. General description of improvement: .....
  112         3. Owner information or Lessee information if the Lessee
  113  contracted for the improvement:
  114         a. Name and address: .....
  115         b. Interest in property: .....
  116         c. Name and address of fee simple titleholder (if different
  117  from Owner listed above): .....
  118         4.a. Contractor: ...(name and address)....
  119         b. Contractor’s phone number: .....
  120         5. Surety (if applicable, a copy of the payment bond is
  121  attached):
  122         a. Name and address: .....
  123         b. Phone number: .....
  124         c. Amount of bond: $.....
  125         6.a. Lender: ...(name and address)....
  126         b. Lender’s phone number: .....
  127         7. Persons within the State of Florida designated by Owner
  128  upon whom notices or other documents may be served as provided
  129  by Section 713.13(1)(a)7., Florida Statutes:
  130         a. Name and address: .....
  131         b. Phone numbers of designated persons: .....
  132         8.a. In addition to himself or herself, Owner designates
  133  ........of ........ to receive a copy of the Lienor’s Notice as
  134  provided in Section 713.13(1)(b), Florida Statutes.
  135         b. Phone number of person or entity designated by owner:
  136  .....
  137         9. Expiration date of notice of commencement (the
  138  expiration date will be 1 year from the date of recording unless
  139  a different date is specified) .....
  140         WARNING TO OWNER: IT IS YOUR RESPONSIBILITY TO RECORD A
  141  NOTICE OF COMMENCEMENT WITH THE CLERK’S OFFICE, INCLUDING ANY
  142  AMENDMENTS TO EXTEND THE EFFECTIVE PERIOD, CHANGE ERRONEOUS
  143  INFORMATION IN THE ORIGINAL NOTICE, OR ADD INFORMATION THAT WAS
  144  OMITTED FROM THE ORIGINAL NOTICE. HOWEVER, IN ORDER TO CHANGE
  145  CONTRACTORS, A NEW NOTICE OF COMMENCEMENT OR NOTICE OF
  146  RECOMMENCEMENT MUST BE EXECUTED AND RECORDED. ANY PAYMENTS MADE
  147  BY THE OWNER AFTER THE EXPIRATION OF THE NOTICE OF COMMENCEMENT
  148  ARE CONSIDERED IMPROPER PAYMENTS UNDER CHAPTER 713, PART I,
  149  SECTION 713.13, FLORIDA STATUTES, AND CAN RESULT IN YOUR PAYING
  150  TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF
  151  COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE BEFORE
  152  THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT
  153  WITH YOUR LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR
  154  RECORDING YOUR NOTICE OF COMMENCEMENT.
  155         ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
  156  Authorized Officer/Director/Partner/Manager)...
  157         ...(Signatory’s Title/Office)...
  158         The foregoing instrument was acknowledged before me this
  159  .... day of....,...(year)..., by ...(name of person)... as
  160  ...(type of authority,..e.g. officer, trustee, attorney in
  161  fact)... for ...(name of party on behalf of whom instrument was
  162  executed)....
  163         ...(Signature of Notary Public - State of Florida)...
  164         ...(Print, Type, or Stamp Commissioned Name of Notary
  165  Public)...
  166         Personally Known .... OR Produced Identification ....
  167         Type of Identification Produced ........
  168         Section 4. Paragraph (a) of subsection (1) and paragraph
  169  (a) of subsection (6) of section 713.135, Florida Statutes, are
  170  amended to read:
  171         713.135 Notice of commencement and applicability of lien.—
  172         (1) When any person applies for a building permit, the
  173  authority issuing such permit shall:
  174         (a) Print on the face of each permit card in no less than
  175  14-point, capitalized, boldfaced type: WARNING TO OWNER: IT IS
  176  YOUR RESPONSIBILITY TO RECORD A NOTICE OF COMMENCEMENT WITH THE
  177  CLERK’S OFFICE, INCLUDING ANY AMENDMENTS TO EXTEND THE EFFECTIVE
  178  PERIOD, CHANGE ERRONEOUS INFORMATION IN THE ORIGINAL NOTICE, OR
  179  ADD INFORMATION THAT WAS OMITTED FROM THE ORIGINAL NOTICE.
  180  HOWEVER, IN ORDER TO CHANGE CONTRACTORS, A NEW NOTICE OF
  181  COMMENCEMENT OR NOTICE OF RECOMMENCEMENT MUST BE EXECUTED AND
  182  RECORDED. YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY
  183  RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A
  184  NOTICE OF COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB
  185  SITE BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN
  186  FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
  187  RECORDING YOUR NOTICE OF COMMENCEMENT.
  188         (6)(a) In addition to any other information required by the
  189  authority issuing the permit, the building permit application
  190  must be in substantially the following form:
  191  Tax Folio No. ....
  192                     BUILDING PERMIT APPLICATION                   
  193  Owner’s Name ............
  194  Owner’s Address ............
  195  Fee Simple Titleholder’s Name (If other than owner) ....
  196  Fee Simple Titleholder’s Address (If other than owner) ........
  197  City ............
  198  State ........ Zip....
  199  Contractor’s Name ............
  200  Contractor’s Address ............
  201  City ............
  202  State ........ Zip....
  203  Job Name ............
  204  Job Address ............
  205  City ........						County........
  206  Legal Description ....
  207  Bonding Company ............
  208  Bonding Company Address ............
  209  City ........ State........
  210  Architect/Engineer’s Name ............
  211  Architect/Engineer’s Address ............
  212  Mortgage Lender’s Name ............
  213  Mortgage Lender’s Address ............
  214         Application is hereby made to obtain a permit to do the
  215  work and installations as indicated. I certify that no work or
  216  installation has commenced prior to the issuance of a permit and
  217  that all work will be performed to meet the standards of all
  218  laws regulating construction in this jurisdiction. I understand
  219  that a separate permit must be secured for ELECTRICAL WORK,
  220  PLUMBING, SIGNS, WELLS, POOLS, FURNACES, BOILERS, HEATERS,
  221  TANKS, and AIR CONDITIONERS, etc.
  222  OWNER’S AFFIDAVIT: I certify that all the foregoing information
  223  is accurate and that all work will be done in compliance with
  224  all applicable laws regulating construction and zoning.
  225         WARNING TO OWNER: IT IS YOUR RESPONSIBILITY TO RECORD
  226         A NOTICE OF COMMENCEMENT WITH THE CLERK’S OFFICE,
  227         INCLUDING ANY AMENDMENTS TO EXTEND THE EFFECTIVE
  228         PERIOD, CHANGE ERRONEOUS INFORMATION IN THE ORIGINAL
  229         NOTICE, OR ADD INFORMATION THAT WAS OMITTED FROM THE
  230         ORIGINAL NOTICE. HOWEVER, IN ORDER TO CHANGE
  231         CONTRACTORS, A NEW NOTICE OF COMMENCEMENT OR NOTICE OF
  232         RECOMMENCEMENT MUST BE EXECUTED AND RECORDED. YOUR
  233         FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT
  234         IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR
  235         PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED
  236         AND POSTED ON THE JOB SITE BEFORE THE FIRST
  237         INSPECTION.
  238         IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
  239         LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR
  240         RECORDING YOUR NOTICE OF COMMENCEMENT.
  241  ...(Signature of Owner or Agent)...
  242  ...(including contractor)...
  243  STATE OF FLORIDA
  244  COUNTY OF ....
  245         Sworn to (or affirmed) and subscribed before me this
  246  ....day of...., ...(year)..., by ...(name of person making
  247  statement)....
  248  ...(Signature of Notary Public - State of Florida)...
  249  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  250         Personally Known .... OR Produced Identification ....
  251         Type of Identification Produced ........
  252  ...(Signature of Contractor)...
  253  STATE OF FLORIDA
  254  COUNTY OF ....
  255         Sworn to (or affirmed) and subscribed before me this ....
  256  day of...., ...(year)..., by ...(name of person making
  257  statement)....
  258  ...(Signature of Notary Public - State of Florida)...
  259  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  260         Personally Known ....OR Produced Identification ....
  261         Type of Identification Produced ........
  262                 (Certificate of Competency Holder)                
  263  Contractor’s State Certification or Registration No. ....
  264  Contractor’s Certificate of Competency No. ........
  265  APPLICATION APPROVED BY
  266  ........Permit Officer
  267         Section 5. This act shall take effect July 1, 2013.