CS for SB 622                                    First Engrossed
       
       
       
       
       
       
       
       
       2021622e1
       
    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; revising the
    5         process for notarizing a notice of nonpayment;
    6         requiring that specified waivers be in a certain form;
    7         requiring that service of documents be made in a
    8         specified manner; amending s. 337.18, F.S.; providing
    9         that certain waivers apply to certain contracts;
   10         requiring that service of documents be made in a
   11         specified manner; amending s. 713.01, F.S.; revising
   12         definitions; amending s. 713.09, F.S.; authorizing a
   13         lienor to record one claim of lien for multiple direct
   14         contracts; amending s. 713.10, F.S.; revising the
   15         extent of certain liens; amending s. 713.13, F.S.;
   16         revising information to be included in a notice of
   17         commencement; revising the process for notarizing a
   18         notice of commencement; amending s. 713.132, F.S.;
   19         revising requirements for a notice of termination;
   20         amending s. 713.18, F.S.; requiring that service of
   21         documents relating to construction bonds be made in a
   22         specified manner; requiring that specified waivers and
   23         releases be in a certain form; making technical
   24         changes; amending s. 713.20, F.S.; requiring specified
   25         waivers or releases be in a certain form; amending s.
   26         713.21, F.S.; authorizing the full or partial release
   27         of a lien under specified conditions; amending s.
   28         713.23, F.S.; requiring that a copy of a notice of
   29         nonpayment be served on the surety; revising the
   30         process for notarizing a notice of nonpayment under a
   31         payment bond; amending s. 713.235, F.S.; requiring
   32         that specified waivers be in a certain form; amending
   33         s. 713.29, F.S.; authorizing attorney fees in actions
   34         to enforce a lien that has been transferred to
   35         security; providing an effective date.
   36          
   37  Be It Enacted by the Legislature of the State of Florida:
   38  
   39         Section 1. Paragraphs (a) through (d) and (f) of subsection
   40  (2) of section 255.05, Florida Statutes, are amended, and
   41  subsection (12) is added to that section, to read:
   42         255.05 Bond of contractor constructing public buildings;
   43  form; action by claimants.—
   44         (2)(a)1. If a claimant is no longer furnishing labor,
   45  services, or materials on a project, a contractor or the
   46  contractor’s agent or attorney may elect to shorten the time
   47  within which an action to enforce any claim against a payment
   48  bond must be commenced by recording in the clerk’s office a
   49  notice in substantially the following form:
   50  
   51                     NOTICE OF CONTEST OF CLAIM                    
   52                        AGAINST PAYMENT BOND                       
   53  
   54  To: ...(Name and address of claimant)...
   55  
   56         You are notified that the undersigned contests your notice
   57  of nonpayment, dated ............, ........, and served on the
   58  undersigned on ............, ........, and that the time within
   59  which you may file suit to enforce your claim is limited to 60
   60  days after the date of service of this notice.
   61  
   62         DATED on ............, .........
   63  
   64  Signed: ...(Contractor or Attorney)...
   65  
   66  The claim of a claimant upon whom such notice is served and who
   67  fails to institute a suit to enforce his or her claim against
   68  the payment bond within 60 days after service of such notice is
   69  extinguished automatically. The contractor or the contractor’s
   70  attorney shall serve a copy of the notice of contest on to the
   71  claimant at the address shown in the notice of nonpayment or
   72  most recent amendment thereto and shall certify to such service
   73  on the face of the notice and record the notice.
   74         2. A claimant, except a laborer, who is not in privity with
   75  the contractor shall, before commencing or not later than 45
   76  days after commencing to furnish labor, services, or materials
   77  for the prosecution of the work, serve the contractor with a
   78  written notice that he or she intends to look to the bond for
   79  protection. A claimant who is not in privity with the contractor
   80  and who has not received payment for furnishing his or her
   81  labor, services, or materials shall serve a written notice of
   82  nonpayment on the contractor and a copy of the notice on the
   83  surety. The notice of nonpayment shall be under oath and served
   84  during the progress of the work or thereafter but may not be
   85  served earlier than 45 days after the first furnishing of labor,
   86  services, or materials by the claimant or later than 90 days
   87  after the final furnishing of the labor, services, or materials
   88  by the claimant or, with respect to rental equipment, later than
   89  90 days after the date that the rental equipment was last on the
   90  job site available for use. Any notice of nonpayment served by a
   91  claimant who is not in privity with the contractor which
   92  includes sums for retainage must specify the portion of the
   93  amount claimed for retainage. An action for the labor, services,
   94  or materials may not be instituted against the contractor or the
   95  surety unless the notice to the contractor and notice of
   96  nonpayment have been served, if required by this section.
   97  Notices required or permitted under this section must be served
   98  in accordance with s. 713.18. A claimant may not waive in
   99  advance his or her right to bring an action under the bond
  100  against the surety. In any action brought to enforce a claim
  101  against a payment bond under this section, the prevailing party
  102  is entitled to recover a reasonable fee for the services of his
  103  or her attorney for trial and appeal or for arbitration, in an
  104  amount to be determined by the court, which fee must be taxed as
  105  part of the prevailing party’s costs, as allowed in equitable
  106  actions. The time periods for service of a notice of nonpayment
  107  or for bringing an action against a contractor or a surety are
  108  shall be measured from the last day of furnishing labor,
  109  services, or materials by the claimant and may not be measured
  110  by other standards, such as the issuance of a certificate of
  111  occupancy or the issuance of a certificate of substantial
  112  completion. The negligent inclusion or omission of any
  113  information in the notice of nonpayment that has not prejudiced
  114  the contractor or surety does not constitute a default that
  115  operates to defeat an otherwise valid bond claim. A claimant who
  116  serves a fraudulent notice of nonpayment forfeits his or her
  117  rights under the bond. A notice of nonpayment is fraudulent if
  118  the claimant has willfully exaggerated the amount unpaid,
  119  willfully included a claim for work not performed or materials
  120  not furnished for the subject improvement, or prepared the
  121  notice with such willful and gross negligence as to amount to a
  122  willful exaggeration. However, a minor mistake or error in a
  123  notice of nonpayment, or a good faith dispute as to the amount
  124  unpaid, does not constitute a willful exaggeration that operates
  125  to defeat an otherwise valid claim against the bond. The service
  126  of a fraudulent notice of nonpayment is a complete defense to
  127  the claimant’s claim against the bond. The notice of nonpayment
  128  under this subparagraph must include the following information,
  129  current as of the date of the notice, and must be in
  130  substantially the following form:
  131  
  132                        NOTICE OF NONPAYMENT                       
  133  
  134  To: ...(name of contractor and address)...
  135  
  136  ...(name of surety and address)...
  137  
  138  The undersigned claimant notifies you that:
  139         1. Claimant has furnished ...(describe labor, services, or
  140  materials)... for the improvement of the real property
  141  identified as ...(property description).... The corresponding
  142  amount unpaid to date is $...., of which $.... is unpaid
  143  retainage.
  144         2. Claimant has been paid to date the amount of $.... for
  145  previously furnishing ...(describe labor, services, or
  146  materials)... for this improvement.
  147         3. Claimant expects to furnish ...(describe labor,
  148  services, or materials)... for this improvement in the future
  149  (if known), and the corresponding amount expected to become due
  150  is $.... (if known).
  151  
  152  I declare that I have read the foregoing Notice of Nonpayment
  153  and that the facts stated in it are true to the best of my
  154  knowledge and belief.
  155  
  156  DATED on ............, .........
  157  
  158  ...(signature and address of claimant)...
  159  
  160  STATE OF FLORIDA
  161  COUNTY OF ........
  162  
  163  The foregoing instrument was sworn to (or affirmed) and
  164  subscribed before me by means of ☐ physical presence or sworn to
  165  (or affirmed) by ☐ online notarization this .... day of ....,
  166  ...(year)..., by ...(name of signatory)....
  167  
  168         ...(Signature of Notary Public - State of Florida)...
  169         ...(Print, Type, or Stamp Commissioned Name of Notary
  170  Public)...
  171  
  172  Personally Known ........ OR Produced Identification ........
  173  
  174  Type of Identification Produced	
  175  
  176         (b) When a person is required to execute a waiver of his or
  177  her right to make a claim against the payment bond in exchange
  178  for, or to induce payment of, a progress payment, the waiver
  179  must may be in substantially the following form:
  180  
  181                      WAIVER OF RIGHT TO CLAIM                     
  182                      AGAINST THE PAYMENT BOND                     
  183                         (PROGRESS PAYMENT)                        
  184  
  185         The undersigned, in consideration of the sum of $....,
  186  hereby waives its right to claim against the payment bond for
  187  labor, services, or materials furnished through ...(insert
  188  date)... to ...(insert the name of your customer)... on the job
  189  of ...(insert the name of the owner)..., for improvements to the
  190  following described project:
  191  
  192                      (description of project)                     
  193  
  194  This waiver does not cover any retention or any labor, services,
  195  or materials furnished after the date specified.
  196  
  197         DATED ON ........, .....
  198  ...(Claimant)...
  199  By:............
  200  
  201         (c) When a person is required to execute a waiver of his or
  202  her right to make a claim against the payment bond, in exchange
  203  for, or to induce payment of, the final payment, the waiver must
  204  may be in substantially the following form:
  205  
  206                      WAIVER OF RIGHT TO CLAIM                     
  207                      AGAINST THE PAYMENT BOND                     
  208                           (FINAL PAYMENT)                         
  209  
  210         The undersigned, in consideration of the final payment in
  211  the amount of $...., hereby waives its right to claim against
  212  the payment bond for labor, services, or materials furnished to
  213  ...(insert the name of your customer)... on the job of
  214  ...(insert the name of the owner)..., for improvements to the
  215  following described project:
  216  
  217                      (description of project)                     
  218  
  219         DATED ON ........, .....
  220  ...(Claimant)...
  221  By:............
  222  
  223         (d) A person may not require a claimant to provide furnish
  224  a waiver that is different from the forms in paragraphs (b) and
  225  (c).
  226         (f) A waiver that is not substantially similar to the forms
  227  in this subsection is enforceable in accordance with its terms.
  228         (12) Unless otherwise provided in this section, service of
  229  any document must be made in accordance with s. 713.18.
  230         Section 2. Paragraph (c) of subsection (1) of section
  231  337.18, Florida Statutes, is amended, and subsection (6) is
  232  added to that section, to read:
  233         337.18 Surety bonds for construction or maintenance
  234  contracts; requirement with respect to contract award; bond
  235  requirements; defaults; damage assessments.—
  236         (1)
  237         (c) A claimant, except a laborer, who is not in privity
  238  with the contractor shall, before commencing or not later than
  239  90 days after commencing to furnish labor, materials, or
  240  supplies for the prosecution of the work, furnish the contractor
  241  with a notice that he or she intends to look to the bond for
  242  protection. A claimant who is not in privity with the contractor
  243  and who has not received payment for his or her labor,
  244  materials, or supplies shall deliver to the contractor and to
  245  the surety written notice of the performance of the labor or
  246  delivery of the materials or supplies and of the nonpayment. The
  247  notice of nonpayment may be served at any time during the
  248  progress of the work or thereafter but not before 45 days after
  249  the first furnishing of labor, services, or materials, and not
  250  later than 90 days after the final furnishing of the labor,
  251  services, or materials by the claimant or, with respect to
  252  rental equipment, not later than 90 days after the date that the
  253  rental equipment was last on the job site available for use. An
  254  action by a claimant, except a laborer, who is not in privity
  255  with the contractor for the labor, materials, or supplies may
  256  not be instituted against the contractor or the surety unless
  257  both notices have been given. Written notices required or
  258  permitted under this section must may be served in accordance
  259  with any manner provided in s. 713.18, and provisions for the
  260  waiver of a claim or a right to claim against a payment bond
  261  contained in s. 713.235 apply to all contracts under this
  262  section.
  263         (6) Unless otherwise provided in this section, service of
  264  any document must be made in accordance with s. 713.18.
  265         Section 3. Subsections (4) and (8) of section 713.01,
  266  Florida Statutes, are amended to read:
  267         713.01 Definitions.—As used in this part, the term:
  268         (4) “Clerk’s office” means the office of the clerk of the
  269  circuit court of the county, or another office serving as the
  270  county recorder as provided by law, in which the real property
  271  is located.
  272         (8) “Contractor” means a person other than a materialman or
  273  laborer who enters into a contract with the owner of real
  274  property for improving it, or who takes over from a contractor
  275  as so defined the entire remaining work under such contract. The
  276  term “contractor” includes an architect, landscape architect, or
  277  engineer who improves real property pursuant to a design-build
  278  contract authorized by s. 489.103(16). The term also includes a
  279  licensed general contractor or building contractor, as those
  280  terms are defined in s. 489.105(3)(a) and (b), respectively, who
  281  provides construction management services, which include
  282  responsibility for scheduling and coordination in both
  283  preconstruction and construction phases and for the successful,
  284  timely, and economical completion of the construction project,
  285  or who provides program management services, which include
  286  responsibility for schedule control, cost control, and
  287  coordination in providing or procuring planning, design, and
  288  construction.
  289         Section 4. Section 713.09, Florida Statutes, is amended to
  290  read:
  291         713.09 Single claim of lien.—A lienor may is required to
  292  record only one claim of lien covering his or her entire demand
  293  against the real property when the amount demanded is for labor
  294  or services or material furnished for more than one improvement
  295  under the same direct contract or multiple direct contracts. The
  296  single claim of lien is sufficient even though the improvement
  297  is for one or more improvements located on separate lots,
  298  parcels, or tracts of land. If materials to be used on one or
  299  more improvements on separate lots, parcels, or tracts of land
  300  under one direct contract are delivered by a lienor to a place
  301  designated by the person with whom the materialman contracted,
  302  other than the site of the improvement, the delivery to the
  303  place designated is prima facie evidence of delivery to the site
  304  of the improvement and incorporation in the improvement. The
  305  single claim of lien may be limited to a part of multiple lots,
  306  parcels, or tracts of land and their improvements or may cover
  307  all of the lots, parcels, or tracts of land and improvements. If
  308  a In each claim of lien under this section is for multiple
  309  direct contracts, the owner under the direct contracts contract
  310  must be the same person for all lots, parcels, or tracts of land
  311  against which a single claim of lien is recorded.
  312         Section 5. Paragraph (b) of subsection (2) of section
  313  713.10, Florida Statutes, is amended, and subsection (4) is
  314  added to that section, to read:
  315         713.10 Extent of liens.—
  316         (2)
  317         (b) The interest of the lessor is not subject to liens for
  318  improvements made by the lessee when:
  319         1. The lease, or a short form or a memorandum of the lease
  320  that contains the specific language in the lease prohibiting
  321  such liability, is recorded in the official records of the
  322  county where the premises are located before the recording of a
  323  notice of commencement for improvements to the premises and the
  324  terms of the lease expressly prohibit such liability; or
  325         2. The terms of the lease expressly prohibit such
  326  liability, and a notice advising that leases for the rental of
  327  premises on a parcel of land prohibit such liability has been
  328  recorded in the official records of the county in which the
  329  parcel of land is located before the recording of a notice of
  330  commencement for improvements to the premises, and the notice
  331  includes the following:
  332         a. The name of the lessor.
  333         b. The legal description of the parcel of land to which the
  334  notice applies.
  335         c. The specific language contained in the various leases
  336  prohibiting such liability.
  337         d. A statement that all or a majority of the leases entered
  338  into for premises on the parcel of land expressly prohibit such
  339  liability.
  340         3. The lessee is a mobile home owner who is leasing a
  341  mobile home lot in a mobile home park from the lessor.
  342  
  343  A notice that is consistent with subparagraph 2. effectively
  344  prohibits liens for improvements made by a lessee even if other
  345  leases for premises on the parcel do not expressly prohibit
  346  liens or if provisions of each lease restricting the application
  347  of liens are not identical.
  348         (4) The interest of the lessor is not subject to liens for
  349  improvements made by the lessee when the lessee is a mobile home
  350  owner who is leasing a mobile home lot in a mobile home park
  351  from the lessor.
  352         Section 6. Paragraphs (a), (c), and (d) of subsection (1)
  353  of section 713.13, Florida Statutes, are amended to read:
  354         713.13 Notice of commencement.—
  355         (1)(a) Except for an improvement that is exempt under
  356  pursuant to s. 713.02(5), an owner or the owner’s authorized
  357  agent before actually commencing to improve any real property,
  358  or recommencing completion of any improvement after default or
  359  abandonment, whether or not a project has a payment bond
  360  complying with s. 713.23, shall record a notice of commencement
  361  in the clerk’s office and forthwith post either a certified copy
  362  thereof or a notarized statement that the notice of commencement
  363  has been filed for recording along with a copy thereof. The
  364  notice of commencement shall contain the following information:
  365         1. A description sufficient for identification of the real
  366  property to be improved. The description should include the
  367  legal description of the property and also should include the
  368  street address and tax folio number of the property if available
  369  or, if there is no street address available, such additional
  370  information as will describe the physical location of the real
  371  property to be improved.
  372         2. A general description of the improvement.
  373         3. The name and address of the owner, the owner’s interest
  374  in the site of the improvement, and the name and address of the
  375  fee simple titleholder, if other than such owner.
  376         4. The name and address of the lessee, if the A lessee who
  377  contracts for the improvements as is an owner as defined in s.
  378  713.01 under s. 713.01(23) and must be listed as the owner
  379  together with a statement that the ownership interest is a
  380  leasehold interest.
  381         5.4. The name and address of the contractor.
  382         6.5. The name and address of the surety on the payment bond
  383  under s. 713.23, if any, and the amount of such bond.
  384         7.6. The name and address of any person making a loan for
  385  the construction of the improvements.
  386         8.7. The name and address within the state of a person
  387  other than himself or herself who may be designated by the owner
  388  as the person upon whom notices or other documents may be served
  389  under this part; and service upon the person so designated
  390  constitutes service upon the owner.
  391         (c) If the contract between the owner and a contractor
  392  named in the notice of commencement expresses a period of time
  393  for completion for the construction of the improvement greater
  394  than 1 year, the notice of commencement must state that it is
  395  effective for a period of 1 year plus any additional period of
  396  time. Any payments made by the owner after the expiration of the
  397  notice of commencement are considered improper payments.
  398         (d) A notice of commencement must be in substantially the
  399  following form:
  400  
  401  Permit No.....                                 Tax Folio No.....
  402                       NOTICE OF COMMENCEMENT                      
  403  State of....
  404  County of....
  405  
  406  The undersigned hereby gives notice that improvement will be
  407  made to certain real property, and in accordance with Chapter
  408  713, Florida Statutes, the following information is provided in
  409  this Notice of Commencement.
  410         1. Description of property: ...(legal description of the
  411  property, and street address if available)....
  412         2. General description of improvement:.....
  413         3.a. Owner: ...name and address....
  414         b. Owner’s phone number:.... Owner information or Lessee
  415  information if the Lessee contracted for the improvement:
  416         a. Name and address:.....
  417         c.b. Interest in property:.....
  418         d.c. Name and address of fee simple titleholder (if
  419  different from Owner listed above):.....
  420         4.a. Lessee, if the lessee contracted for the improvement:
  421  ...(name and address)....
  422         b. Lessee’s phone number:.....
  423         5.a. Contractor: ...(name and address)....
  424         b. Contractor’s phone number:.....
  425         6.5. Surety (if applicable, a copy of the payment bond is
  426  attached):
  427         a. Name and address:.....
  428         b. Phone number:.....
  429         c. Amount of bond: $.....
  430         7.a.6.a. Lender: ...(name and address)....
  431         b. Lender’s phone number:.....
  432         8.7. Persons within the State of Florida designated by
  433  Owner upon whom notices or other documents may be served as
  434  provided by Section 713.13(1)(a)8. 713.13(1)(a)7., Florida
  435  Statutes:
  436         a. Name and address:.....
  437         b. Phone numbers of designated persons:.....
  438         9.a.8.a. In addition to himself or herself, Owner
  439  designates ............ of ............ to receive a copy of the
  440  Lienor’s Notice as provided in Section 713.13(1)(b), Florida
  441  Statutes.
  442         b. Phone number of person or entity designated by
  443  owner:.....
  444         10.9. Expiration date of notice of commencement (the
  445  expiration date will be 1 year after from the date of recording
  446  unless a different date is specified).....
  447  
  448  WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
  449  EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
  450  PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
  451  STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
  452  TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
  453  POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU
  454  INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN
  455  ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF
  456  COMMENCEMENT.
  457  
  458  ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
  459  Authorized Officer/Director/Partner/Manager)...
  460  
  461  ...(Signatory’s Title/Office)...
  462  
  463  The foregoing instrument was acknowledged before me by means of
  464  ☐ physical presence or acknowledged before me by means of ☐
  465  online notarization, this .... day of ...., ...(year)..., by
  466  ...(name of person)... as ...(type of authority,...e.g. officer,
  467  trustee, attorney in fact)... for ...(name of party on behalf of
  468  whom instrument was executed)....
  469  
  470  ...(Signature of Notary Public - State of Florida)...
  471  
  472  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  473  
  474         Personally Known .... OR Produced Identification ....
  475  
  476         Type of Identification Produced............
  477  
  478         Section 7. Subsections (1), (3), and (4) of section
  479  713.132, Florida Statutes, are amended to read:
  480         713.132 Notice of termination.—
  481         (1) An owner may terminate the period of effectiveness of a
  482  notice of commencement by executing, swearing to, and recording
  483  a notice of termination that contains:
  484         (a) The same information as the notice of commencement;
  485         (b) The official records’ recording office document book
  486  and page reference numbers and recording date affixed by the
  487  recording office on of the recorded notice of commencement;
  488         (c) A statement of the date as of which the notice of
  489  commencement is terminated, which date may not be earlier than
  490  30 days after the notice of termination is recorded;
  491         (d) A statement specifying that the notice applies to all
  492  the real property subject to the notice of commencement or
  493  specifying the portion of such real property to which it
  494  applies;
  495         (e) A statement that all lienors have been paid in full;
  496  and
  497         (f) A statement that the owner has, before recording the
  498  notice of termination, served a copy of the notice of
  499  termination on the contractor and on each lienor who has a
  500  direct contract with the owner or who has timely served a notice
  501  to owner, and a statement that the owner will serve a copy of
  502  the notice of termination on each lienor who timely serves a
  503  notice to owner after the notice of termination has been
  504  recorded. The owner is not required to serve a copy of the
  505  notice of termination on any lienor who has executed a waiver
  506  and release of lien upon final payment in accordance with s.
  507  713.20.
  508         (3) An owner may not record a notice of termination at any
  509  time after except after completion of construction, or after
  510  construction ceases before completion and all lienors have been
  511  paid in full or pro rata in accordance with s. 713.06(4).
  512         (4) If an owner or a contractor, by fraud or collusion,
  513  knowingly makes any fraudulent statement or affidavit in a
  514  notice of termination or any accompanying affidavit, the owner
  515  and the contractor, or either of them, as the case may be, is
  516  liable to any lienor who suffers damages as a result of the
  517  filing of the fraudulent notice of termination,; and any such
  518  lienor has a right of action for damages occasioned thereby.
  519         (5)(4) A notice of termination must be served before
  520  recording on each lienor who has a direct contract with the
  521  owner and on each lienor who has timely and properly served a
  522  notice to owner in accordance with this part before the
  523  recording of the notice of termination. A notice of termination
  524  must be recorded in the official records of the county in which
  525  the improvement is located. If properly served before recording
  526  in accordance with this subsection, the notice of termination
  527  terminates the period of effectiveness of the notice of
  528  commencement 30 days after the notice of termination is recorded
  529  in the official records is effective to terminate the notice of
  530  commencement at the later of 30 days after recording of the
  531  notice of termination or a later the date stated in the notice
  532  of termination as the date on which the notice of commencement
  533  is terminated. However, if a lienor who began work under the
  534  notice of commencement before its termination lacks a direct
  535  contract with the owner and timely serves his or her notice to
  536  owner after the notice of termination has been recorded, the
  537  owner must serve a copy of the notice of termination upon such
  538  lienor, and the termination of the notice of commencement as to
  539  that lienor is effective 30 days after service of the notice of
  540  termination if the notice of termination has been served
  541  pursuant to paragraph (1)(f) on the contractor and on each
  542  lienor who has a direct contract with the owner or who has
  543  served a notice to owner.
  544         Section 8. Section 713.18, Florida Statutes, is amended to
  545  read:
  546         713.18 Manner of serving documents notices and other
  547  instruments.—
  548         (1) Unless otherwise specifically provided by law, service
  549  of any document notices, claims of lien, affidavits,
  550  assignments, and other instruments permitted or required under
  551  this part, s. 255.05, or s. 337.18, or copies thereof when so
  552  permitted or required, unless otherwise specifically provided in
  553  this part, must be made by one of the following methods:
  554         (a) By hand actual delivery to the person to be served; if
  555  a partnership, to one of the partners; if a corporation, to an
  556  officer, director, managing agent, or business agent; or, if a
  557  limited liability company, to a member or manager.
  558         (b) By common carrier delivery service or by registered,
  559  Global Express Guaranteed, or certified mail to the person to be
  560  served, with postage or shipping paid by the sender and with
  561  evidence of delivery, which may be in an electronic format.
  562         (c) By posting on the site of the improvement if service as
  563  provided by paragraph (a) or paragraph (b) cannot be
  564  accomplished.
  565         (2) Notwithstanding subsection (1), service of a notice to
  566  owner or a preliminary notice to contractor under this part, s.
  567  255.05, or s. 337.18, or s. 713.23 is effective as of the date
  568  of mailing and the requirements for service under this section
  569  have been satisfied if:
  570         (a) The notice is mailed by registered, Global Express
  571  Guaranteed, or certified mail, with postage prepaid, to the
  572  person to be served and addressed as prescribed at any of the
  573  addresses set forth in subsection (3);
  574         (b) The notice is mailed within 40 days after the date the
  575  lienor first furnishes labor, services, or materials; and
  576         (c)1. The person who served the notice maintains a
  577  registered or certified mail log that shows the registered or
  578  certified mail number issued by the United States Postal
  579  Service, the name and address of the person served, and the date
  580  stamp of the United States Postal Service confirming the date of
  581  mailing; or
  582         2. The person who served the notice maintains electronic
  583  tracking records approved or generated by the United States
  584  Postal Service containing the postal tracking number, the name
  585  and address of the person served, and verification of the date
  586  of receipt by the United States Postal Service.
  587         (3)(a) Notwithstanding subsection (1), service of a
  588  document under an instrument pursuant to this section is
  589  effective on the date of mailing or shipping, and the
  590  requirements for service under this section have been satisfied,
  591  the instrument if it:
  592         1. The document is sent to the last address shown in the
  593  notice of commencement or any amendment thereto or, in the
  594  absence of a notice of commencement, to the last address shown
  595  in the building permit application, or to the last known address
  596  of the person to be served.; and
  597         2. The document is returned as being “refused,” “moved, not
  598  forwardable,” or “unclaimed,” or is otherwise not delivered or
  599  deliverable through no fault of the person serving the document
  600  item.
  601         (b) If the address shown in the notice of commencement or
  602  any amendment thereto to the notice of commencement, or, in the
  603  absence of a notice of commencement, in the building permit
  604  application, is incomplete for purposes of mailing or delivery,
  605  the person serving the document item may complete the address
  606  and properly format it according to United States Postal Service
  607  addressing standards using information obtained from the
  608  property appraiser or another public record without affecting
  609  the validity of service under this section.
  610         (4) A document notice served by a lienor on one owner or
  611  one partner of a partnership owning the real property is deemed
  612  served on notice to all owners and partners.
  613         Section 9. Subsections (4), (5), (6), and (8) of section
  614  713.20, Florida Statutes, are amended to read:
  615         713.20 Waiver or release of liens.—
  616         (4) When a lienor is required to execute a waiver or
  617  release of lien in exchange for, or to induce payment of, a
  618  progress payment, the waiver or release must may be in
  619  substantially the following form:
  620  
  621                     WAIVER AND RELEASE OF LIEN                    
  622                        UPON PROGRESS PAYMENT                      
  623  
  624         The undersigned lienor, in consideration of the sum of
  625  $...., hereby waives and releases its lien and right to claim a
  626  lien for labor, services, or materials furnished through
  627  ...(insert date)... to ...(insert the name of your customer)...
  628  on the job of ...(insert the name of the owner)... to the
  629  following property:
  630  
  631                   ...(description of property)...                 
  632  
  633  This waiver and release does not cover any retention or labor,
  634  services, or materials furnished after the date specified.
  635  
  636         DATED on ...., ...(year)....               ...(Lienor)...
  637  By: ........
  638  
  639         (5) When a lienor is required to execute a waiver or
  640  release of lien in exchange for, or to induce payment of, the
  641  final payment, the waiver and release must may be in
  642  substantially the following form:
  643  
  644                     WAIVER AND RELEASE OF LIEN                    
  645                         UPON FINAL PAYMENT                        
  646  
  647         The undersigned lienor, in consideration of the final
  648  payment in the amount of $........, hereby waives and releases
  649  its lien and right to claim a lien for labor, services, or
  650  materials furnished to ...(insert the name of your customer)...
  651  on the job of ...(insert the name of the owner)... to the
  652  following described property:
  653  
  654                   ...(description of property)...                 
  655  
  656         DATED on ...., ...(year)....               ...(Lienor)...
  657  By: ........
  658  
  659         (6) A person may not require a lienor to provide furnish a
  660  lien waiver or release of lien that is different from the forms
  661  in subsection (4) or subsection (5).
  662         (8) A lien waiver or lien release that is not substantially
  663  similar to the forms in subsections (4) and (5) is enforceable
  664  in accordance with the terms of the lien waiver or lien release.
  665         Section 10. Section 713.21, Florida Statutes, is amended to
  666  read:
  667         713.21 Discharge of lien.—A lien properly perfected under
  668  this chapter may be discharged, or released in whole or in part,
  669  by any of the following methods:
  670         (1) By entering satisfaction of the lien upon the margin of
  671  the record thereof in the clerk’s office when not otherwise
  672  prohibited by law. This satisfaction shall be signed by the
  673  lienor, the lienor’s agent or attorney and attested by said
  674  clerk. Any person who executes a claim of lien has shall have
  675  authority to execute a satisfaction in the absence of actual
  676  notice of lack of authority to any person relying on the same.
  677         (2) By the satisfaction or release of the lienor, duly
  678  acknowledged and recorded in the clerk’s office. The
  679  satisfaction or release must include the lienor’s notarized
  680  signature and set forth the official records’ reference numbers
  681  and recording date affixed by the recording office on the
  682  subject lien. Any person who executes a claim of lien has shall
  683  have authority to execute a satisfaction or release in the
  684  absence of actual notice of lack of authority to any person
  685  relying on the same.
  686         (3) By failure to begin an action to enforce the lien
  687  within the time prescribed in this part.
  688         (4) By an order of the circuit court of the county where
  689  the property is located, as provided in this subsection. Upon
  690  filing a complaint therefor by any interested party the clerk
  691  shall issue a summons to the lienor to show cause within 20 days
  692  why his or her lien should not be enforced by action or vacated
  693  and canceled of record. Upon failure of the lienor to show cause
  694  why his or her lien should not be enforced or the lienor’s
  695  failure to commence such action before the return date of the
  696  summons the court shall forthwith order cancellation of the
  697  lien.
  698         (5) By recording in the clerk’s office the original or a
  699  certified copy of a judgment or decree of a court of competent
  700  jurisdiction showing a final determination of the action.
  701         Section 11. Paragraph (d) of subsection (1) of section
  702  713.23, Florida Statutes, is amended to read:
  703         713.23 Payment bond.—
  704         (1)
  705         (d) In addition, a lienor who has not received payment for
  706  furnishing his or her labor, services, or materials must, as a
  707  condition precedent to recovery under the bond, serve a written
  708  notice of nonpayment on to the contractor and a copy of the
  709  notice on the surety. The notice must be under oath and served
  710  during the progress of the work or thereafter, but may not be
  711  served later than 90 days after the final furnishing of labor,
  712  services, or materials by the lienor, or, with respect to rental
  713  equipment, later than 90 days after the date the rental
  714  equipment was on the job site and available for use. A notice of
  715  nonpayment that includes sums for retainage must specify the
  716  portion of the amount claimed for retainage. The required notice
  717  satisfies this condition precedent with respect to the payment
  718  described in the notice of nonpayment, including unpaid finance
  719  charges due under the lienor’s contract, and with respect to any
  720  other payments which become due to the lienor after the date of
  721  the notice of nonpayment. The time period for serving a notice
  722  of nonpayment is shall be measured from the last day of
  723  furnishing labor, services, or materials by the lienor and may
  724  not be measured by other standards, such as the issuance of a
  725  certificate of occupancy or the issuance of a certificate of
  726  substantial completion. The failure of a lienor to receive
  727  retainage sums not in excess of 10 percent of the value of
  728  labor, services, or materials furnished by the lienor is not
  729  considered a nonpayment requiring the service of the notice
  730  provided under this paragraph. If the payment bond is not
  731  recorded before commencement of construction, the time period
  732  for the lienor to serve a notice of nonpayment may at the option
  733  of the lienor be calculated from the date specified in this
  734  section or the date the lienor is served a copy of the bond.
  735  However, the limitation period for commencement of an action on
  736  the payment bond as established in paragraph (e) may not be
  737  expanded. The negligent inclusion or omission of any information
  738  in the notice of nonpayment that has not prejudiced the
  739  contractor or surety does not constitute a default that operates
  740  to defeat an otherwise valid bond claim. A lienor who serves a
  741  fraudulent notice of nonpayment forfeits his or her rights under
  742  the bond. A notice of nonpayment is fraudulent if the lienor has
  743  willfully exaggerated the amount unpaid, willfully included a
  744  claim for work not performed or materials not furnished for the
  745  subject improvement, or prepared the notice with such willful
  746  and gross negligence as to amount to a willful exaggeration.
  747  However, a minor mistake or error in a notice of nonpayment, or
  748  a good faith dispute as to the amount unpaid, does not
  749  constitute a willful exaggeration that operates to defeat an
  750  otherwise valid claim against the bond. The service of a
  751  fraudulent notice of nonpayment is a complete defense to the
  752  lienor’s claim against the bond. The notice under this paragraph
  753  must include the following information, current as of the date
  754  of the notice, and must be in substantially the following form:
  755  
  756                        NOTICE OF NONPAYMENT                       
  757  
  758  To ...(name of contractor and address)...
  759  
  760  ...(name of surety and address)...
  761  
  762  The undersigned lienor notifies you that:
  763         1. The lienor has furnished ...(describe labor, services,
  764  or materials)... for the improvement of the real property
  765  identified as ...(property description).... The corresponding
  766  amount unpaid to date is $...., of which $.... is unpaid
  767  retainage.
  768         2. The lienor has been paid to date the amount of $.... for
  769  previously furnishing ...(describe labor, services, or
  770  materials)... for this improvement.
  771         3. The lienor expects to furnish ...(describe labor,
  772  services, or materials)... for this improvement in the future
  773  (if known), and the corresponding amount expected to become due
  774  is $.... (if known).
  775  
  776  I declare that I have read the foregoing Notice of Nonpayment
  777  and that the facts stated in it are true to the best of my
  778  knowledge and belief.
  779  
  780  DATED on ............, .........
  781  
  782  ...(signature and address of lienor)...
  783  
  784  STATE OF FLORIDA
  785  COUNTY OF........
  786  
  787  The foregoing instrument was sworn to (or affirmed) and
  788  subscribed before me by means of ☐ physical presence or sworn to
  789  (or affirmed) by ☐ online notarization, this .... day of ....,
  790  ...(year)..., by ...(name of signatory)....
  791         ...(Signature of Notary Public - State of Florida)...
  792         ...(Print, Type, or Stamp Commissioned Name of Notary
  793  Public)...
  794  
  795  Personally Known ........ OR Produced Identification ........
  796  
  797  Type of Identification Produced.................................
  798         Section 12. Section 713.235, Florida Statutes, is amended
  799  to read:
  800         713.235 Waivers of right to claim against payment bond;
  801  forms.—
  802         (1) When a person is required to execute a waiver of his or
  803  her right to make a claim against a payment bond provided under
  804  pursuant to s. 713.23 or s. 713.245, in exchange for, or to
  805  induce payment of, a progress payment, the waiver must may be in
  806  substantially the following form:
  807  
  808                      WAIVER OF RIGHT TO CLAIM                     
  809                      AGAINST THE PAYMENT BOND                     
  810                         (PROGRESS PAYMENT)                        
  811  
  812         The undersigned, in consideration of the sum of $....
  813  hereby waives its right to claim against the payment bond for
  814  labor, services, or materials furnished through ...(insert
  815  date)..., to ...(insert the name of your customer)... on the job
  816  of ...(insert the name of the owner)..., for improvements to the
  817  following described project:
  818  
  819                      (description of project)                     
  820  
  821  This waiver does not cover any retention or any labor, services,
  822  or materials furnished after the date specified.
  823  DATED on ....
  824  ...(Lienor)...
  825  By:........
  826  
  827         (2) When a person is required to execute a waiver of his or
  828  her right to make a claim against a payment bond provided under
  829  pursuant to s. 713.23 or s. 713.245, in exchange for, or to
  830  induce payment of, the final payment, the waiver must may be in
  831  substantially the following form:
  832  
  833                      WAIVER OF RIGHT TO CLAIM                     
  834                      AGAINST THE PAYMENT BOND                     
  835                           (FINAL PAYMENT)                         
  836  
  837         The undersigned, in consideration of the final payment in
  838  the amount of $...., hereby waives its right to claim against
  839  the payment bond for labor, services, or materials furnished to
  840  ...(insert the name of your customer)... on the job of
  841  ...(insert the name of the owner)..., for improvements to the
  842  following described project:
  843  
  844                      (description of project)                     
  845  DATED on ....
  846  ...(Lienor)...
  847  By:........
  848  
  849         (3) A person may not require a claimant to provide furnish
  850  a waiver that is different from the forms in subsections (1) and
  851  (2).
  852         (4) A person who executes a waiver in exchange for a check
  853  may condition the waiver on payment of the check.
  854         (5) A waiver that is not substantially similar to the forms
  855  in this section is enforceable in accordance with its terms.
  856         Section 13. Section 713.29, Florida Statutes, is amended to
  857  read:
  858         713.29 Attorney Attorney’s fees.—In any action brought to
  859  enforce a lien, including a lien that has been transferred to
  860  security, or to enforce a claim against a bond under this part,
  861  the prevailing party is entitled to recover a reasonable fee for
  862  the services of her or his attorney for trial and appeal or for
  863  arbitration, in an amount to be determined by the court, which
  864  fee must be taxed as part of the prevailing party’s costs, as
  865  allowed in equitable actions.
  866         Section 14. This act shall take effect July 1, 2021.