Florida Senate - 2023 CS for CS for SB 624
By the Committees on Rules; and Judiciary; and Senators Grall
and Perry
595-04032-23 2023624c2
1 A bill to be entitled
2 An act relating to liens and bonds; amending s.
3 255.05, F.S.; requiring the clerk of the court to
4 serve a copy of a notice of contest of claim on
5 certain persons after it has been recorded; requiring
6 the clerk of the court to charge fees for such
7 services as provided by law; revising when a notice of
8 contest of claim against a payment bond must be
9 served; requiring that a copy of a notice of
10 nonpayment be served on the surety; revising the
11 process for notarizing a notice of nonpayment;
12 revising authorized alternative forms of security;
13 requiring service of documents to be made in a
14 specified manner; conforming provisions to changes
15 made by the act; making technical changes; amending s.
16 337.18, F.S.; requiring service of documents to be
17 made in a specified manner; conforming provisions to
18 changes made by the act; amending s. 713.01, F.S.;
19 revising and providing definitions; creating s.
20 713.011, F.S.; providing for the computation of time
21 when certain time periods fall on specified days or
22 during an emergency; amending s. 713.10, F.S.;
23 revising the extent of certain liens; amending s.
24 713.13, F.S.; conforming a cross-reference; revising
25 the process for notarizing a notice of commencement;
26 making technical changes; amending s. 713.132, F.S.;
27 revising requirements for a notice of termination;
28 revising when an owner may record a notice of
29 termination; specifying when a notice of termination
30 terminates a notice of commencement; amending s.
31 713.135, F.S.; providing a definition; providing
32 applicability; revising the dollar threshold of an
33 exception; providing immunity; making technical
34 changes; amending s. 713.18, F.S.; requiring service
35 of documents relating to construction bonds to be made
36 in a specified manner; authorizing employees or agents
37 of specified entities to receive service of certain
38 documents; making technical changes; amending s.
39 713.21, F.S.; authorizing the full or partial release
40 of a lien under specified conditions; making technical
41 changes; amending s. 713.22, F.S.; requiring the clerk
42 to serve a copy of a notice of contest of lien on
43 certain persons after it has been recorded; requiring
44 the clerk of the court to charge fees for such
45 services as provided by law; making technical changes;
46 amending s. 713.23, F.S.; requiring that a copy of a
47 notice of nonpayment be served on the surety; revising
48 the process for notarizing a notice of nonpayment
49 under a payment bond; requiring the clerk to serve a
50 copy of a notice of contest of lien on certain persons
51 after it has been recorded; requiring the clerk of the
52 court to charge fees for such services as provided by
53 law; amending s. 713.24, F.S.; revising the amount
54 required in addition to the deposit or bond which
55 applies toward attorney fees and court costs;
56 requiring the clerk to make a copy of the deposit or
57 bond used to transfer a lien to other security and
58 mail it to the lienor; making technical changes;
59 repealing s. 713.25, F.S., relating to applicability
60 of ch. 65-456, Laws of Florida; amending s. 713.29,
61 F.S.; authorizing attorney fees in actions brought to
62 enforce a lien that has been transferred to security;
63 making technical changes; providing an effective date.
64
65 Be It Enacted by the Legislature of the State of Florida:
66
67 Section 1. Paragraph (a) of subsection (2) and subsection
68 (7) of section 255.05, Florida Statutes, are amended, and
69 subsection (12) is added to that section, to read:
70 255.05 Bond of contractor constructing public buildings;
71 form; action by claimants.—
72 (2)(a)1. If a claimant is no longer furnishing labor,
73 services, or materials on a project, a contractor or the
74 contractor’s agent or attorney may elect to shorten the time
75 within which an action to enforce any claim against a payment
76 bond must be commenced by recording in the clerk’s office a
77 notice in substantially the following form:
78
79 NOTICE OF CONTEST OF CLAIM
80 AGAINST PAYMENT BOND
81
82 To: ...(Name and address of claimant)...
83
84 You are notified that the undersigned contests your notice
85 of nonpayment, dated ............, ........, and served on the
86 undersigned on ............, ........, and that the time within
87 which you may file suit to enforce your claim is limited to 60
88 days after the date of service of this notice.
89
90 DATED on ............, .........
91
92 Signed: ...(Contractor or Attorney)...
93
94 The claim of a claimant upon whom such notice is served and who
95 fails to institute a suit to enforce his or her claim against
96 the payment bond within 60 days after service of such notice is
97 extinguished automatically. The contractor or the contractor’s
98 attorney shall serve a copy of the notice of contest on to the
99 claimant at the address shown in the notice of nonpayment or
100 most recent amendment thereto and shall certify to such service
101 on the face of the notice and record the notice. After the clerk
102 records the notice with the certificate of service, the clerk
103 shall serve, in accordance with s. 713.18, a copy of such
104 recorded notice on the claimant and the contractor or the
105 contractor’s attorney. The clerk of the court shall charge fees
106 for such services as provided by law.
107 2. A claimant, except a laborer, who is not in privity with
108 the contractor shall, before commencing or not later than 45
109 days after commencing to furnish labor, services, or materials
110 for the prosecution of the work, serve the contractor with a
111 written notice that he or she intends to look to the bond for
112 protection. If the payment bond is not recorded before the
113 commencement of work or before the recommencement of work after
114 a default or abandonment as required by subsection (1), the
115 claimant may serve the contractor with such written notice up to
116 45 days after the date that the claimant is served with a copy
117 of the bond. A claimant who is not in privity with the
118 contractor and who has not received payment for furnishing his
119 or her labor, services, or materials shall serve a written
120 notice of nonpayment on the contractor and a copy of the notice
121 of nonpayment on the surety. The notice of nonpayment must shall
122 be under oath and served during the progress of the work or
123 thereafter but may not be served earlier than 45 days after the
124 first furnishing of labor, services, or materials by the
125 claimant or later than 90 days after the final furnishing of the
126 labor, services, or materials by the claimant or, with respect
127 to rental equipment, later than 90 days after the date that the
128 rental equipment was last on the job site of the improvement and
129 available for use. Any notice of nonpayment served by a claimant
130 who is not in privity with the contractor which includes sums
131 for retainage must specify the portion of the amount claimed for
132 retainage. An action for the labor, services, or materials may
133 not be instituted against the contractor or the surety unless
134 the notice to the contractor and notice of nonpayment have been
135 served, if required by this section. Notices required or
136 permitted under this section must be served in accordance with
137 s. 713.18. A claimant may not waive in advance his or her right
138 to bring an action under the bond against the surety. In any
139 action brought to enforce a claim against a payment bond under
140 this section, the prevailing party is entitled to recover a
141 reasonable fee for the services of his or her attorney for trial
142 and appeal or for arbitration, in an amount to be determined by
143 the court or arbitrator, which fee must be taxed as part of the
144 prevailing party’s costs, as allowed in equitable actions. The
145 time periods for service of a notice of nonpayment or for
146 bringing an action against a contractor or a surety are shall be
147 measured from the last day of furnishing labor, services, or
148 materials by the claimant and may not be measured by other
149 standards, such as the issuance of a certificate of occupancy or
150 the issuance of a certificate of substantial completion. The
151 negligent inclusion or omission of any information in the notice
152 of nonpayment that has not prejudiced the contractor or surety
153 does not constitute a default that operates to defeat an
154 otherwise valid bond claim. A claimant who serves a fraudulent
155 notice of nonpayment forfeits his or her rights under the bond.
156 A notice of nonpayment is fraudulent if the claimant has
157 willfully exaggerated the amount unpaid, willfully included a
158 claim for work not performed or materials not furnished for the
159 subject improvement, or prepared the notice with such willful
160 and gross negligence as to amount to a willful exaggeration.
161 However, a minor mistake or error in a notice of nonpayment, or
162 a good faith dispute as to the amount unpaid, does not
163 constitute a willful exaggeration that operates to defeat an
164 otherwise valid claim against the bond. The service of a
165 fraudulent notice of nonpayment is a complete defense to the
166 claimant’s claim against the bond. The notice of nonpayment
167 under this subparagraph must include the following information,
168 current as of the date of the notice, and must be in
169 substantially the following form:
170
171 NOTICE OF NONPAYMENT
172
173 To: ...(name of contractor and address)...
174
175 ...(name of surety and address)...
176
177 The undersigned claimant notifies you that:
178 1. Claimant has furnished ...(describe labor, services, or
179 materials)... for the improvement of the real property
180 identified as ...(property description).... The corresponding
181 amount unpaid to date is $...., of which $.... is unpaid
182 retainage.
183 2. Claimant has been paid to date the amount of $.... for
184 previously furnishing ...(describe labor, services, or
185 materials)... for this improvement.
186 3. Claimant expects to furnish ...(describe labor,
187 services, or materials)... for this improvement in the future
188 (if known), and the corresponding amount expected to become due
189 is $.... (if known).
190
191 I declare that I have read the foregoing Notice of Nonpayment
192 and that the facts stated in it are true to the best of my
193 knowledge and belief.
194
195 DATED on ............, .........
196
197 ...(signature and address of claimant)...
198
199 STATE OF FLORIDA
200 COUNTY OF ........
201
202 The foregoing instrument was sworn to (or affirmed) and
203 subscribed before me by means of ☐ physical presence or sworn to
204 (or affirmed) by ☐ online notarization this .... day of ....,
205 ...(year)..., by ...(name of signatory)....
206 ...(Signature of Notary Public - State of Florida)...
207 ...(Print, Type, or Stamp Commissioned Name of Notary
208 Public)...
209
210 Personally Known ........ OR Produced Identification ........
211
212 Type of Identification Produced.................................
213
214 (7) In lieu of the bond required by this section, a
215 contractor may file with the state, county, city, or other
216 political authority an alternative form of security in the form
217 of cash;, a money order;, a certified check;, a cashier’s
218 check;, an irrevocable letter of credit, or a domestic corporate
219 bond, note, or debenture as authorized in s. 625.317 security of
220 a type listed in part II of chapter 625. Any such alternative
221 form of security is shall be for the same purpose and be subject
222 to the same conditions as those applicable to the bond required
223 by this section. The determination of the value of an
224 alternative form of security shall be made by the appropriate
225 state, county, city, or other political subdivision shall
226 determine the required value of an alternative form of security.
227 (12) Unless otherwise provided in this section, service of
228 any document must be made in accordance with s. 713.18.
229 Section 2. Paragraph (c) of subsection (1) of section
230 337.18, Florida Statutes, is amended, and subsection (6) is
231 added to that section, to read:
232 337.18 Surety bonds for construction or maintenance
233 contracts; requirement with respect to contract award; bond
234 requirements; defaults; damage assessments.—
235 (1)
236 (c) A claimant, except a laborer, who is not in privity
237 with the contractor shall, before commencing or not later than
238 90 days after commencing to furnish labor, materials, or
239 supplies for the prosecution of the work, furnish the contractor
240 with a notice that he or she intends to look to the bond for
241 protection. A claimant who is not in privity with the contractor
242 and who has not received payment for his or her labor,
243 materials, or supplies shall deliver to the contractor and to
244 the surety written notice of the performance of the labor or
245 delivery of the materials or supplies and of the nonpayment. The
246 notice of nonpayment may be served at any time during the
247 progress of the work or thereafter but not before 45 days after
248 the first furnishing of labor, services, or materials, and not
249 later than 90 days after the final furnishing of the labor,
250 services, or materials by the claimant or, with respect to
251 rental equipment, not later than 90 days after the date that the
252 rental equipment was last on the job site of the improvement and
253 available for use. An action by a claimant, except a laborer,
254 who is not in privity with the contractor for the labor,
255 materials, or supplies may not be instituted against the
256 contractor or the surety unless both notices have been given.
257 Written notices required or permitted under this section must
258 may be served in accordance with any manner provided in s.
259 713.18.
260 (6) Unless otherwise provided in this section, service of
261 any document must be made in accordance with s. 713.18.
262 Section 3. Present subsections (13) through (29) of section
263 713.01, Florida Statutes, are redesignated as subsections (14)
264 through (30), respectively, a new subsection (13) is added to
265 that section, and subsections (4), (8), and (12) of that section
266 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 scheduling and coordinating preconstruction and construction
283 phases for the construction project, or who provides program
284 management services, which include schedule control, cost
285 control, and coordinating the provision or procurement of
286 planning, design, and construction for the construction project.
287 (12) “Final furnishing” means the last date that the lienor
288 furnishes labor, services, or materials. Such date may not be
289 measured by other standards, such as the issuance of a
290 certificate of occupancy or the issuance of a certificate of
291 final completion, and does not include the correction of
292 deficiencies in the lienor’s previously performed work or
293 materials supplied. With respect to rental equipment, the term
294 means the date that the rental equipment was last on the job
295 site of the improvement and available for use.
296 (13) “Finance charge” means a contractually specified
297 additional amount to be paid by the obligor on any balance that
298 remains unpaid by the due date set forth in the credit agreement
299 or other contract.
300 Section 4. Section 713.011, Florida Statutes, is created to
301 read:
302 713.011 Computation of time.—
303 (1) In computing any time period under this part, if the
304 last day of the time period is a Saturday, Sunday, or holiday
305 specified in s. 110.117(1), or any day observed as a holiday by
306 the clerk’s office or designated as a holiday by the chief judge
307 of the circuit, the time period is extended to the end of the
308 next business day.
309 (2) If the clerk’s office is closed in response to an
310 emergency for 1 or more days so that a person may not present a
311 document for recording or an action for filing in person to the
312 clerk’s staff, the time period for recording a document or
313 filing an action with the clerk’s office under this part is
314 tolled. When the clerk’s office reopens, the time period is
315 extended by the number of days the clerk’s office was closed.
316 Section 5. Paragraph (b) of subsection (2) of section
317 713.10, Florida Statutes, is amended, and subsection (4) is
318 added to that section, to read:
319 713.10 Extent of liens.—
320 (2)
321 (b) The interest of the lessor is not subject to liens for
322 improvements made by the lessee when:
323 1. The lease, or a short form or a memorandum of the lease
324 that contains the specific language in the lease prohibiting
325 such liability, is recorded in the official records of the
326 county where the premises are located before the recording of a
327 notice of commencement for improvements to the premises and the
328 terms of the lease expressly prohibit such liability; or
329 2. The terms of the lease expressly prohibit such
330 liability, and a notice advising that leases for the rental of
331 premises on a parcel of land prohibit such liability has been
332 recorded in the official records of the county in which the
333 parcel of land is located before the recording of a notice of
334 commencement for improvements to the premises, and the notice
335 includes the following:
336 a. The name of the lessor.
337 b. The legal description of the parcel of land to which the
338 notice applies.
339 c. The specific language contained in the various leases
340 prohibiting such liability.
341 d. A statement that all or a majority of the leases entered
342 into for premises on the parcel of land expressly prohibit such
343 liability.
344 3. The lessee is a mobile home owner who is leasing a
345 mobile home lot in a mobile home park from the lessor.
346
347 A notice that is consistent with subparagraph 2. effectively
348 prohibits liens for improvements made by a lessee even if other
349 leases for premises on the parcel do not expressly prohibit
350 liens or if provisions of each lease restricting the application
351 of liens are not identical.
352 (4) The interest of the lessor is not subject to liens for
353 improvements made by the lessee when the lessee is a mobile home
354 owner who is leasing a mobile home lot in a mobile home park
355 from the lessor.
356 Section 6. Paragraphs (a) and (d) of subsection (1) of
357 section 713.13, Florida Statutes, are amended to read:
358 713.13 Notice of commencement.—
359 (1)(a) Except for an improvement that is exempt under
360 pursuant to s. 713.02(5), an owner or the owner’s authorized
361 agent before actually commencing to improve any real property,
362 or recommencing completion of any improvement after default or
363 abandonment, whether or not a project has a payment bond
364 complying with s. 713.23, shall record a notice of commencement
365 in the clerk’s office and forthwith post either a certified copy
366 thereof or a notarized statement that the notice of commencement
367 has been filed for recording along with a copy thereof. The
368 notice of commencement must shall contain all of the following
369 information:
370 1. A description sufficient for identification of the real
371 property to be improved. The description must should include the
372 legal description of the property and also should include the
373 street address and tax folio number of the property if available
374 or, if the there is no street address is not available, such
375 additional information as will describe the physical location of
376 the real property to be improved.
377 2. A general description of the improvement.
378 3. The name and address of the owner, the owner’s interest
379 in the site of the improvement, and the name and address of the
380 fee simple titleholder, if other than such owner. A lessee who
381 contracts for the improvements is an owner as defined in s.
382 713.01 under s. 713.01(23) and must be listed as the owner
383 together with a statement that the ownership interest is a
384 leasehold interest.
385 4. The name and address of the contractor.
386 5. The name and address of the surety on the payment bond
387 under s. 713.23, if any, and the amount of such bond.
388 6. The name and address of any person making a loan for the
389 construction of the improvements.
390 7. The name and address within the state of a person other
391 than himself or herself who may be designated by the owner as
392 the person upon whom notices or other documents may be served
393 under this part; and service upon the person so designated
394 constitutes service upon the owner.
395 (d) A notice of commencement must be in substantially the
396 following form:
397
398 Permit No..... Tax Folio No.....
399 NOTICE OF COMMENCEMENT
400 State of....
401 County of....
402
403 The undersigned hereby gives notice that improvement will be
404 made to certain real property, and in accordance with Chapter
405 713, Florida Statutes, the following information is provided in
406 this Notice of Commencement.
407 1. Description of property: ...(legal description of the
408 property, and street address if available)....
409 2. General description of improvement:.....
410 3. Owner information or Lessee information if the Lessee
411 contracted for the improvement:
412 a. Name and address:.....
413 b. Interest in property:.....
414 c. Name and address of fee simple titleholder (if different
415 from Owner listed above):.....
416 4.a. Contractor: ...(name and address)....
417 b. Contractor’s phone number:.....
418 5. Surety (if applicable, a copy of the payment bond is
419 attached):
420 a. Name and address:.....
421 b. Phone number:.....
422 c. Amount of bond: $.....
423 6.a. Lender: ...(name and address)....
424 b. Lender’s phone number:.....
425 7. Persons within the State of Florida designated by Owner
426 upon whom notices or other documents may be served as provided
427 by Section 713.13(1)(a)7., Florida Statutes:
428 a. Name and address:.....
429 b. Phone numbers of designated persons:.....
430 8.a. In addition to himself or herself, Owner designates
431 ............ of ............ to receive a copy of the Lienor’s
432 Notice as provided in Section 713.13(1)(b), Florida Statutes.
433 b. Phone number of person or entity designated by
434 owner:.....
435 9. Expiration date of notice of commencement (the
436 expiration date will be 1 year after from the date of recording
437 unless a different date is specified).....
438
439 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE
440 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER
441 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA
442 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
443 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND
444 POSTED ON THE JOB SITE OF THE IMPROVEMENT BEFORE THE FIRST
445 INSPECTION. IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR
446 LENDER OR AN ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR
447 NOTICE OF COMMENCEMENT.
448
449 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s
450 Authorized Officer/Director/Partner/Manager)...
451
452 ...(Signatory’s Title/Office)...
453
454 The foregoing instrument was acknowledged before me by means of
455 ☐ physical presence or sworn to (or affirmed) by ☐ online
456 notarization this .... day of ...., ...(year)..., by ...(name of
457 person)... as ...(type of authority,... e.g. officer, trustee,
458 attorney in fact)... for ...(name of party on behalf of whom
459 instrument was executed)....
460
461 ...(Signature of Notary Public - State of Florida)...
462
463 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
464
465 Personally Known .... OR Produced Identification ....
466
467 Type of Identification Produced ............
468 Section 7. Subsections (1), (3), and (4) of section
469 713.132, Florida Statutes, are amended, and subsection (5) is
470 added to that section, to read:
471 713.132 Notice of termination.—
472 (1) An owner may terminate the period of effectiveness of a
473 notice of commencement by executing, swearing to, and recording
474 a notice of termination that contains all of the following:
475 (a) The same information that is in as the notice of
476 commencement.;
477 (b) The official records’ recording office document book
478 and page reference numbers and recording date affixed by the
479 recording office on of the recorded notice of commencement.;
480 (c) A statement of the date as of which the notice of
481 commencement is terminated, which date may not be earlier than
482 30 days after the notice of termination is recorded.;
483 (d) A statement specifying that the notice applies to all
484 the real property subject to the notice of commencement or
485 specifying the portion of such real property to which it
486 applies.;
487 (e) A statement that all lienors have been paid in full.;
488 and
489 (f) A statement that the owner has, before recording the
490 notice of termination, served a copy of the notice of
491 termination on the contractor and on each lienor who has a
492 direct contract with the owner or who has timely served a notice
493 to owner, and a statement that the owner will serve a copy of
494 the notice of termination on each lienor who timely serves a
495 notice to owner after the notice of termination has been
496 recorded. The owner is not required to serve a copy of the
497 notice of termination on any lienor who has executed a waiver
498 and release of lien upon final payment in accordance with s.
499 713.20.
500 (3) An owner may not record a notice of termination at any
501 time after except after completion of construction, or after
502 construction ceases before completion and all lienors have been
503 paid in full or pro rata in accordance with s. 713.06(4).
504 (4) If an owner or a contractor, by fraud or collusion,
505 knowingly makes any fraudulent statement or affidavit in a
506 notice of termination or any accompanying affidavit, the owner
507 and the contractor, or either of them, as the case may be, is
508 liable to any lienor who suffers damages as a result of the
509 filing of the fraudulent notice of termination,; and any such
510 lienor has a right of action for damages occasioned thereby.
511 (5)(4) A notice of termination must be served before
512 recording on each lienor who has a direct contract with the
513 owner and on each lienor who has timely and properly served a
514 notice to owner in accordance with this part before the
515 recording of the notice of termination. A notice of termination
516 must be recorded in the official records of the county in which
517 the improvement is located. If properly served before recording
518 in accordance with this subsection, the notice of termination
519 terminates the period of effectiveness of the notice of
520 commencement 30 days after the notice of termination is recorded
521 in the official records is effective to terminate the notice of
522 commencement at the later of 30 days after recording of the
523 notice of termination or a later the date stated in the notice
524 of termination as the date on which the notice of commencement
525 is terminated. However, if a lienor who began work under the
526 notice of commencement before its termination lacks a direct
527 contract with the owner and timely serves his or her notice to
528 owner after the notice of termination has been recorded, the
529 owner must serve a copy of the notice of termination upon such
530 lienor, and the termination of the notice of commencement as to
531 that lienor is effective 30 days after service of the notice of
532 termination, if the notice of termination has been served
533 pursuant to paragraph (1)(f) on the contractor and on each
534 lienor who has a direct contract with the owner or who has
535 served a notice to owner.
536 Section 8. Subsections (1) and (3) of section 713.135,
537 Florida Statutes, are amended to read:
538 713.135 Notice of commencement and applicability of lien.—
539 (1) When a any person applies for a building permit, the
540 authority issuing such permit shall:
541 (a) Print on the face of each permit card in no less than
542 14-point, capitalized, boldfaced type: “WARNING TO OWNER: YOUR
543 FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR
544 PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF
545 COMMENCEMENT MUST BE RECORDED AND POSTED ON THE JOB SITE OF THE
546 IMPROVEMENT BEFORE THE FIRST INSPECTION. IF YOU INTEND TO OBTAIN
547 FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE
548 RECORDING YOUR NOTICE OF COMMENCEMENT.”
549 (b) Provide the applicant and the owner of the real
550 property upon which improvements are to be constructed with a
551 printed statement stating that the right, title, and interest of
552 the person who has contracted for the improvement may be subject
553 to attachment under the Construction Lien Law. The Department of
554 Business and Professional Regulation shall furnish, for
555 distribution, the statement described in this paragraph, and the
556 statement must be a summary of the Construction Lien Law and
557 must include an explanation of the provisions of the
558 Construction Lien Law relating to the recording, and the posting
559 of copies, of notices of commencement and a statement
560 encouraging the owner to record a notice of commencement and
561 post a copy of the notice of commencement in accordance with s.
562 713.13. The statement must also contain an explanation of the
563 owner’s rights if a lienor fails to furnish the owner with a
564 notice as provided in s. 713.06(2) and an explanation of the
565 owner’s rights as provided in s. 713.22. The authority that
566 issues the building permit must obtain from the Department of
567 Business and Professional Regulation the statement required by
568 this paragraph and must mail, deliver by electronic mail or
569 other electronic format or facsimile, or personally deliver that
570 statement to the owner or, in a case in which the owner is
571 required to personally appear to obtain the permit, provide that
572 statement to any owner making improvements to real property
573 consisting of a single or multiple family dwelling up to and
574 including four units. However, the failure by the authorities to
575 provide the summary does not subject the issuing authority to
576 liability.
577 (c) In addition to providing the owner with the statement
578 as required by paragraph (b), inform each applicant who is not
579 the person whose right, title, and interest is subject to
580 attachment that, as a condition to the issuance of a building
581 permit, the applicant must promise in good faith that the
582 statement will be delivered to the person whose property is
583 subject to attachment.
584 (d) Furnish to the applicant two or more copies of a form
585 of notice of commencement conforming with s. 713.13.
586 (e) Require If the direct contract is greater than $2,500,
587 the applicant to shall file with the issuing authority before
588 prior to the first inspection either a certified copy of the
589 recorded notice of commencement if the direct contract is
590 greater than $7,500. For purposes of this paragraph, the term
591 “copy of the notice of commencement” means a certified copy of
592 the recorded notice of commencement, or a notarized statement
593 that the notice of commencement has been filed for recording,
594 along with a copy thereof, or the clerk’s office’s official
595 records identifying information that includes the instrument
596 number for the notice of commencement or the number and page of
597 book where the notice of commencement is recorded, as identified
598 by the clerk.
599 1. In the absence of the filing of a certified copy of the
600 recorded notice of commencement, the issuing authority or a
601 private provider performing inspection services may not perform
602 or approve subsequent inspections until the applicant files by
603 mail, facsimile, hand delivery, or any other means such
604 certified copy with the issuing authority.
605 2. The certified copy of the notice of commencement must
606 contain the name and address of the owner, the name and address
607 of the contractor, and the location or address of the property
608 being improved. The issuing authority shall verify that the name
609 and address of the owner, the name of the contractor, and the
610 location or address of the property being improved which is
611 contained in the certified copy of the notice of commencement is
612 consistent with the information in the building permit
613 application.
614 3. The issuing authority shall provide the recording
615 information on the certified copy of the recorded notice of
616 commencement to any person upon request.
617 4. This paragraph subsection does not require the recording
618 of a notice of commencement before prior to the issuance of a
619 building permit. If a local government requires a separate
620 permit or inspection for installation of temporary electrical
621 service or other temporary utility service, land clearing, or
622 other preliminary site work, such permits may be issued and such
623 inspections may be conducted without providing the issuing
624 authority with a certified copy of the a recorded notice of
625 commencement or a notarized statement regarding a recorded
626 notice of commencement. This subsection does not apply to a
627 direct contract to repair or replace an existing heating or air
628 conditioning system in an amount less than $15,000.
629 (f)(e) Not require that a notice of commencement be
630 recorded as a condition of the application for, or processing or
631 issuance of, a building permit. However, this paragraph does not
632 modify or waive the inspection requirements set forth in this
633 subsection.
634
635 This subsection does not apply to a direct contract to repair or
636 replace an existing heating or air-conditioning system in an
637 amount less than $15,000.
638 (3) An issuing authority under subsection (1) is not liable
639 in any civil action for the failure to verify that a certified
640 copy of the recorded notice of commencement, a notarized
641 statement that the notice of commencement has been filed for
642 recording along with a copy thereof, or the clerk’s office’s
643 official records identifying information that includes the
644 instrument number for the notice of commencement or the number
645 and page of book where the notice of commencement is recorded,
646 as identified by the clerk, has been filed in accordance with
647 this section.
648 Section 9. Section 713.18, Florida Statutes, is amended to
649 read:
650 713.18 Manner of serving documents notices and other
651 instruments.—
652 (1) Unless otherwise specifically provided by law, service
653 of any document notices, claims of lien, affidavits,
654 assignments, and other instruments permitted or required under
655 this part, s. 255.05, or s. 337.18, or copies thereof when so
656 permitted or required, unless otherwise specifically provided in
657 this part, must be made by one of the following methods:
658 (a) By hand actual delivery to the person to be served; if
659 a partnership, to one of the partners; if a corporation, to an
660 officer or, director, managing agent, or business agent; or, if
661 a limited liability company, to a member or manager; or to an
662 employee or agent authorized by the partnership, corporation, or
663 limited liability company to receive service of such document.
664 (b) By common carrier delivery service or by registered,
665 Global Express Guaranteed, or certified mail to the person to be
666 served, with postage or shipping paid by the sender and with
667 evidence of delivery, which may be in an electronic format.
668 (c) By posting on the site of the improvement if service as
669 provided by paragraph (a) or paragraph (b) cannot be
670 accomplished.
671 (2) Notwithstanding subsection (1), service of a notice to
672 owner or a preliminary notice to contractor under this part, s.
673 255.05, or s. 337.18, or s. 713.23 is effective as of the date
674 of mailing, and the requirements for service under this section
675 have been satisfied, if all of the following requirements have
676 been met:
677 (a) The notice is mailed by registered, Global Express
678 Guaranteed, or certified mail, with postage prepaid, to the
679 person to be served and addressed as prescribed at any of the
680 addresses set forth in subsection (3).;
681 (b) The notice is mailed within 40 days after the date the
682 lienor first furnishes labor, services, or materials.; and
683 (c)1. The person who served the notice maintains a
684 registered or certified mail log that shows the registered or
685 certified mail number issued by the United States Postal
686 Service, the name and address of the person served, and the date
687 stamp of the United States Postal Service confirming the date of
688 mailing; or
689 2. The person who served the notice maintains electronic
690 tracking records approved or generated by the United States
691 Postal Service containing the postal tracking number, the name
692 and address of the person served, and verification of the date
693 of receipt by the United States Postal Service.
694 (3)(a) Notwithstanding subsection (1), service of a
695 document under an instrument pursuant to this section is
696 effective on the date of mailing or shipping, and the
697 requirements for service under this section have been satisfied,
698 the instrument if the document meets both of the following
699 requirements it:
700 1. It is sent to the last address shown in the notice of
701 commencement or any amendment thereto or, in the absence of a
702 notice of commencement, to the last address shown in the
703 building permit application, or to the last known address of the
704 person to be served.; and
705 2. It is returned as being “refused,” “moved, not
706 forwardable,” or “unclaimed,” or is otherwise not delivered or
707 deliverable through no fault of the person serving the document
708 item.
709 (b) If the address shown in the notice of commencement or
710 any amendment thereto to the notice of commencement, or, in the
711 absence of a notice of commencement, in the building permit
712 application, is incomplete for purposes of mailing or delivery,
713 the person serving the document item may complete the address
714 and properly format it according to United States Postal Service
715 addressing standards using information obtained from the
716 property appraiser or another public record without affecting
717 the validity of service under this section.
718 (4) A document notice served by a lienor on one owner or
719 one partner of a partnership owning the real property is deemed
720 served on notice to all owners and partners.
721 Section 10. Section 713.21, Florida Statutes, is amended to
722 read:
723 713.21 Discharge of lien.—A lien properly perfected under
724 this chapter may be discharged, or released in whole or in part,
725 by any of the following methods:
726 (1) By entering satisfaction of the lien upon the margin of
727 the record thereof in the clerk’s office when not otherwise
728 prohibited by law. This satisfaction must shall be signed by the
729 lienor or, the lienor’s agent or attorney and attested by said
730 clerk. Any person who executes a claim of lien has shall have
731 authority to execute a satisfaction in the absence of actual
732 notice of lack of authority to any person relying on the same.
733 (2) By the satisfaction or release of the lienor, duly
734 acknowledged and recorded in the clerk’s office. The
735 satisfaction or release must include the lienor’s notarized
736 signature and set forth the official records’ reference number
737 and recording date affixed by the recording office on the
738 subject lien. Any person who executes a claim of lien has shall
739 have authority to execute a satisfaction or release in the
740 absence of actual notice of lack of authority to any person
741 relying on the same.
742 (3) By failure to begin an action to enforce the lien
743 within the time prescribed in this part.
744 (4) By an order of the circuit court of the county where
745 the property is located, as provided in this subsection. Upon
746 filing a complaint therefor by any interested party the clerk
747 shall issue a summons to the lienor to show cause within 20 days
748 after service of the summons why his or her lien should not be
749 enforced by action or vacated and canceled of record. Upon
750 failure of the lienor to show cause why his or her lien should
751 not be enforced or the lienor’s failure to commence such action
752 before the return date of the summons the court shall forthwith
753 order cancellation of the lien.
754 (5) By recording in the clerk’s office the original or a
755 certified copy of a judgment or decree of a court of competent
756 jurisdiction showing a final determination of the action.
757 Section 11. Subsection (2) of section 713.22, Florida
758 Statutes, is amended to read:
759 713.22 Duration of lien.—
760 (2) An owner or the owner’s attorney may elect to shorten
761 the time prescribed in subsection (1) within which to commence
762 an action to enforce any claim of lien or claim against a bond
763 or other security under s. 713.23 or s. 713.24 by recording in
764 the clerk’s office a notice in substantially the following form:
765
766 NOTICE OF CONTEST OF LIEN
767
768 To: ...(Name and address of lienor)...
769
770 You are notified that the undersigned contests the claim of lien
771 filed by you on ...., ...(year)..., and recorded in .... Book
772 ...., Page ...., of the public records of .... County, Florida,
773 and that the time within which you may file suit to enforce your
774 lien is limited to 60 days from the date of service of this
775 notice. This .... day of ...., ...(year)....
776
777 Signed: ...(Owner or Attorney)...
778
779 The lien of any lienor upon whom such notice is served and who
780 fails to institute a suit to enforce his or her lien within 60
781 days after service of such notice is shall be extinguished
782 automatically. The clerk shall serve, in accordance with s.
783 713.18, a copy of the notice of contest on to the lienor lien
784 claimant at the address shown in the claim of lien or most
785 recent amendment thereto and shall certify to such service and
786 the date of service on the face of the notice and record the
787 notice. After the clerk records the notice with the certificate
788 of service, the clerk shall serve, in accordance with s. 713.18,
789 a copy of such recorded notice on the lienor and the owner or
790 the owner’s attorney. The clerk of the court shall charge fees
791 for such services as provided by law.
792 Section 12. Paragraphs (d) and (e) of subsection (1) of
793 section 713.23, Florida Statutes, are amended to read:
794 713.23 Payment bond.—
795 (1)
796 (d) In addition, a lienor who has not received payment for
797 furnishing his or her labor, services, or materials must, as a
798 condition precedent to recovery under the bond, serve a written
799 notice of nonpayment on to the contractor and a copy of the
800 notice of nonpayment on the surety. The notice of nonpayment
801 must be under oath and served during the progress of the work or
802 thereafter, but may not be served later than 90 days after the
803 final furnishing of labor, services, or materials by the lienor,
804 or, with respect to rental equipment, later than 90 days after
805 the date the rental equipment was on the job site of the
806 improvement and available for use. A notice of nonpayment that
807 includes sums for retainage must specify the portion of the
808 amount claimed for retainage. The required notice satisfies this
809 condition precedent with respect to the payment described in the
810 notice of nonpayment, including unpaid finance charges due under
811 the lienor’s contract, and with respect to any other payments
812 which become due to the lienor after the date of the notice of
813 nonpayment. The time period for serving a notice of nonpayment
814 is shall be measured from the last day of furnishing labor,
815 services, or materials by the lienor and may not be measured by
816 other standards, such as the issuance of a certificate of
817 occupancy or the issuance of a certificate of substantial
818 completion. The failure of a lienor to receive retainage sums
819 not in excess of 10 percent of the value of labor, services, or
820 materials furnished by the lienor is not considered a nonpayment
821 requiring the service of the notice provided under this
822 paragraph. If the payment bond is not recorded before
823 commencement of construction, the time period for the lienor to
824 serve a notice of nonpayment may, at the option of the lienor,
825 be calculated from the date specified in this section or the
826 date the lienor is served a copy of the bond. However, the
827 limitation period for commencement of an action on the payment
828 bond as established in paragraph (e) may not be expanded. The
829 negligent inclusion or omission of any information in the notice
830 of nonpayment that has not prejudiced the contractor or surety
831 does not constitute a default that operates to defeat an
832 otherwise valid bond claim. A lienor who serves a fraudulent
833 notice of nonpayment forfeits his or her rights under the bond.
834 A notice of nonpayment is fraudulent if the lienor has willfully
835 exaggerated the amount unpaid, willfully included a claim for
836 work not performed or materials not furnished for the subject
837 improvement, or prepared the notice with such willful and gross
838 negligence as to amount to a willful exaggeration. However, a
839 minor mistake or error in a notice of nonpayment, or a good
840 faith dispute as to the amount unpaid, does not constitute a
841 willful exaggeration that operates to defeat an otherwise valid
842 claim against the bond. The service of a fraudulent notice of
843 nonpayment is a complete defense to the lienor’s claim against
844 the bond. The notice under this paragraph must include the
845 following information, current as of the date of the notice, and
846 must be in substantially the following form:
847
848 NOTICE OF NONPAYMENT
849
850 To ...(name of contractor and address)...
851
852 ...(name of surety and address)...
853
854 The undersigned lienor notifies you that:
855 1. The lienor has furnished ...(describe labor, services,
856 or materials)... for the improvement of the real property
857 identified as ...(property description).... The corresponding
858 amount unpaid to date is $...., of which $.... is unpaid
859 retainage.
860 2. The lienor has been paid to date the amount of $.... for
861 previously furnishing ...(describe labor, services, or
862 materials)... for this improvement.
863 3. The lienor expects to furnish ...(describe labor,
864 services, or materials)... for this improvement in the future
865 (if known), and the corresponding amount expected to become due
866 is $.... (if known).
867
868 I declare that I have read the foregoing Notice of Nonpayment
869 and that the facts stated in it are true to the best of my
870 knowledge and belief.
871
872 DATED on ............, .........
873
874 ...(signature and address of lienor)...
875
876 STATE OF FLORIDA
877 COUNTY OF........
878
879 The foregoing instrument was sworn to (or affirmed) and
880 subscribed before me by means of ☐ physical presence or sworn to
881 (or affirmed) by ☐ online notarization this .... day of ....,
882 ...(year)..., by ...(name of signatory)....
883 ...(Signature of Notary Public - State of Florida)...
884 ...(Print, Type, or Stamp Commissioned Name of Notary
885 Public)...
886
887 Personally Known ........ OR Produced Identification ........
888
889 Type of Identification Produced.................................
890 (e) An action for the labor, or materials, or supplies may
891 not be instituted or prosecuted against the contractor or surety
892 unless both notices have been given, if required by this
893 section. An action must may not be instituted or prosecuted
894 against the contractor or against the surety on the bond under
895 this section within after 1 year after from the performance of
896 the labor or completion of delivery of the materials and
897 supplies. The time period for bringing an action against the
898 contractor or surety on the bond is shall be measured from the
899 last day of furnishing labor, services, or materials by the
900 lienor. The time period may not be measured by other standards,
901 such as the issuance of a certificate of occupancy or the
902 issuance of a certificate of substantial completion. A
903 contractor or the contractor’s attorney may elect to shorten the
904 time within which an action to enforce any claim against a
905 payment bond provided under this section or s. 713.245 must be
906 commenced at any time after a notice of nonpayment, if required,
907 has been served for the claim by recording in the clerk’s office
908 a notice in substantially the following form:
909 NOTICE OF CONTEST OF CLAIM
910 AGAINST PAYMENT BOND
911 To: ...(Name and address of lienor)...
912 You are notified that the undersigned contests your notice
913 of nonpayment, dated ...., ...., and served on the undersigned
914 on ...., ...., and that the time within which you may file suit
915 to enforce your claim is limited to 60 days after from the date
916 of service of this notice.
917 DATED on ...., .....
918 Signed: ...(Contractor or Attorney)...
919
920 The claim of any lienor upon whom the notice is served and who
921 fails to institute a suit to enforce his or her claim against
922 the payment bond within 60 days after service of the notice is
923 shall be extinguished automatically. The contractor or the
924 contractor’s attorney shall serve, in accordance with s. 713.18,
925 a copy of the notice of contest to the lienor at the address
926 shown in the notice of nonpayment or most recent amendment
927 thereto and shall certify to such service on the face of the
928 notice and record the notice. After the clerk records the notice
929 with the certificate of service, the clerk shall serve, in
930 accordance with s. 713.18, a copy of such recorded notice on the
931 lienor and the contractor or the contractor’s attorney. The
932 clerk of the court shall charge fees for such services as
933 provided by law.
934 Section 13. Subsections (1) and (3) of section 713.24,
935 Florida Statutes, are amended to read:
936 713.24 Transfer of liens to security.—
937 (1) Any lien claimed under this part may be transferred, by
938 any person having an interest in the real property upon which
939 the lien is imposed or the contract under which the lien is
940 claimed, from such real property to other security by either:
941 (a) Depositing in the clerk’s office a sum of money;, or
942 (b) Filing in the clerk’s office a bond executed as surety
943 by a surety insurer licensed to do business in this state,
944
945 either to be in an amount equal to the amount demanded in such
946 claim of lien, plus interest thereon at the legal rate for 3
947 years, plus $5,000 $1,000 or 25 percent of the amount demanded
948 in the claim of lien, whichever is greater, to apply on any
949 attorney attorney’s fees and court costs that may be taxed in
950 any proceeding to enforce said lien. Such deposit or bond must
951 shall be conditioned to pay any judgment or decree which may be
952 rendered for the satisfaction of the lien for which such claim
953 of lien was recorded. Upon making such deposit or filing such
954 bond, the clerk shall make and record a certificate, which must
955 include a copy of the deposit or bond used to transfer, showing
956 the transfer of the lien from the real property to the security
957 and shall mail a copy thereof together with a copy of the
958 deposit or bond used to transfer by registered or certified mail
959 to the lienor named in the claim of lien so transferred, at the
960 address stated therein. Upon filing the certificate of transfer,
961 the real property is shall thereupon be released from the lien
962 claimed, and such lien is shall be transferred to said security.
963 In the absence of allegations of privity between the lienor and
964 the owner, and subject to any order of the court increasing the
965 amount required for the lien transfer deposit or bond, no other
966 judgment or decree to pay money may be entered by the court
967 against the owner. The clerk is shall be entitled to a service
968 charge for making and serving the certificate, in the amount of
969 up to $20, from which the clerk shall remit $5 to the Department
970 of Revenue for deposit into the General Revenue Fund. If the
971 transaction involves the transfer of multiple liens, the clerk
972 shall charge an additional service charge of up to $10 for each
973 additional lien shall be charged, from which the clerk shall
974 remit $2.50 to the Department of Revenue for deposit into the
975 General Revenue Fund. For recording the certificate and
976 approving the bond, the clerk shall receive her or his usual
977 statutory service charges as prescribed in s. 28.24. Any number
978 of liens may be transferred to one such security.
979 (3) Any party having an interest in such security or the
980 property from which the lien was transferred may at any time,
981 and any number of times, file a complaint in chancery in the
982 circuit court of the county where such security is deposited, or
983 file a motion in a pending action to enforce a lien, for an
984 order to require additional security, reduction of security,
985 change or substitution of sureties, payment of discharge
986 thereof, or any other matter affecting said security. If the
987 court finds that the amount of the deposit or bond in excess of
988 the amount claimed in the claim of lien is insufficient to pay
989 the lienor’s attorney attorney’s fees and court costs incurred
990 in the action to enforce the lien, the court must increase the
991 amount of the cash deposit or lien transfer bond. Nothing in
992 This section may not shall be construed to vest exclusive
993 jurisdiction in the circuit courts over transfer bond claims for
994 nonpayment of an amount within the monetary jurisdiction of the
995 county courts.
996 Section 14. Section 713.25, Florida Statutes, is repealed.
997 Section 15. Section 713.29, Florida Statutes, is amended to
998 read:
999 713.29 Attorney Attorney’s fees.—In any action brought to
1000 enforce a lien, including a lien that has been transferred to
1001 security, or to enforce a claim against a bond under this part,
1002 the prevailing party is entitled to recover a reasonable fee for
1003 the services of her or his attorney for trial and appeal or for
1004 arbitration, in an amount to be determined by the court, which
1005 fee must be taxed as part of the prevailing party’s costs, as
1006 allowed in equitable actions.
1007 Section 16. This act shall take effect October 1, 2023.