Bill Text: FL S0622 | 2021 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Liens and Bonds
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2021-04-30 - Died on Second Reading Calendar [S0622 Detail]
Download: Florida-2021-S0622-Introduced.html
Bill Title: Liens and Bonds
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2021-04-30 - Died on Second Reading Calendar [S0622 Detail]
Download: Florida-2021-S0622-Introduced.html
Florida Senate - 2021 SB 622 By Senator Perry 8-00207D-21 2021622__ 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 prohibiting a person from requiring a claimant to 7 furnish a certain waiver in exchange for or to induce 8 certain payments; providing that specified provisions 9 in certain waivers are unenforceable; providing an 10 exception; requiring service of documents to be made 11 in a specified manner; amending s. 337.18, F.S.; 12 providing that certain waivers apply to certain 13 contracts; requiring service of documents to be made 14 in a specified manner; amending s. 713.01, F.S.; 15 revising definitions; amending s. 713.09, F.S.; 16 authorizing a lienor to record one claim of lien for 17 multiple direct contracts; amending s. 713.10, F.S.; 18 revising the extent of certain liens; amending s. 19 713.13, F.S.; revising information to be included in a 20 notice of commencement; specifying that payments made 21 by an owner before the recording of a notice of 22 commencement are considered improper payments; 23 revising the process for notarizing a notice of 24 commencement; amending s. 713.132, F.S.; revising 25 requirements for a notice of termination; amending s. 26 713.18, F.S.; requiring service of documents relating 27 to construction bonds to be made in a specified 28 manner; making technical changes; amending s. 713.20, 29 F.S.; prohibiting a person from requiring a lienor to 30 furnish a certain waiver or release in exchange for or 31 to induce certain payments; providing that specified 32 provisions in certain waivers or releases are 33 unenforceable; providing an exception; amending s. 34 713.21, F.S.; authorizing the full or partial release 35 of a lien under specified conditions; amending s. 36 713.23, F.S.; requiring that a copy of a notice of 37 nonpayment be served on the surety; revising the 38 process for notarizing a notice of nonpayment under a 39 payment bond; amending s. 713.235, F.S.; prohibiting a 40 person from requiring a lienor to furnish a certain 41 waiver or release in exchange for or to induce certain 42 payments; providing that specified provisions in 43 certain waivers or releases are unenforceable; 44 providing an exception; amending s. 713.29, F.S.; 45 authorizing attorney fees in actions to enforce a lien 46 that has been transferred to security; providing an 47 effective date. 48 49 Be It Enacted by the Legislature of the State of Florida: 50 51 Section 1. Paragraphs (a), (d), and (f) of subsection (2) 52 of section 255.05, Florida Statutes, are amended, and subsection 53 (12) is added to that section, to read: 54 255.05 Bond of contractor constructing public buildings; 55 form; action by claimants.— 56 (2)(a)1. If a claimant is no longer furnishing labor, 57 services, or materials on a project, a contractor or the 58 contractor’s agent or attorney may elect to shorten the time 59 within which an action to enforce any claim against a payment 60 bond must be commenced by recording in the clerk’s office a 61 notice in substantially the following form: 62 63 NOTICE OF CONTEST OF CLAIM 64 AGAINST PAYMENT BOND 65 66 To: ...(Name and address of claimant)... 67 68 You are notified that the undersigned contests your notice 69 of nonpayment, dated ............, ........, and served on the 70 undersigned on ............, ........, and that the time within 71 which you may file suit to enforce your claim is limited to 60 72 days after the date of service of this notice. 73 74 DATED on ............, ......... 75 76 Signed: ...(Contractor or Attorney)... 77 78 The claim of a claimant upon whom such notice is served and who 79 fails to institute a suit to enforce his or her claim against 80 the payment bond within 60 days after service of such notice is 81 extinguished automatically. The contractor or the contractor’s 82 attorney shall serve a copy of the notice of contest ontothe 83 claimant at the address shown in the notice of nonpayment or 84 most recent amendment thereto and shall certify to such service 85 on the face of the notice and record the notice. 86 2. A claimant, except a laborer, who is not in privity with 87 the contractor shall, before commencing or not later than 45 88 days after commencing to furnish labor, services, or materials 89 for the prosecution of the work, serve the contractor with a 90 written notice that he or she intends to look to the bond for 91 protection. A claimant who is not in privity with the contractor 92 and who has not received payment for furnishing his or her 93 labor, services, or materials shall serve a written notice of 94 nonpayment on the contractor and a copy of the notice on the 95 surety. The notice of nonpayment shall be under oath and served 96 during the progress of the work or thereafter but may not be 97 served earlier than 45 days after the first furnishing of labor, 98 services, or materials by the claimant or later than 90 days 99 after the final furnishing of the labor, services, or materials 100 by the claimant or, with respect to rental equipment, later than 101 90 days after the date that the rental equipment was last on the 102 job site available for use. Any notice of nonpayment served by a 103 claimant who is not in privity with the contractor which 104 includes sums for retainage must specify the portion of the 105 amount claimed for retainage. An action for the labor, services, 106 or materials may not be instituted against the contractor or the 107 surety unless the notice to the contractor and notice of 108 nonpayment have been served, if required by this section. 109 Notices required or permitted under this section must be served 110 in accordance with s. 713.18. A claimant may not waive in 111 advance his or her right to bring an action under the bond 112 against the surety. In any action brought to enforce a claim 113 against a payment bond under this section, the prevailing party 114 is entitled to recover a reasonable fee for the services of his 115 or her attorney for trial and appeal or for arbitration, in an 116 amount to be determined by the court, which fee must be taxed as 117 part of the prevailing party’s costs, as allowed in equitable 118 actions. The time periods for service of a notice of nonpayment 119 or for bringing an action against a contractor or a surety are 120shall bemeasured from the last day of furnishing labor, 121 services, or materials by the claimant and may not be measured 122 by other standards, such as the issuance of a certificate of 123 occupancy or the issuance of a certificate of substantial 124 completion. The negligent inclusion or omission of any 125 information in the notice of nonpayment that has not prejudiced 126 the contractor or surety does not constitute a default that 127 operates to defeat an otherwise valid bond claim. A claimant who 128 serves a fraudulent notice of nonpayment forfeits his or her 129 rights under the bond. A notice of nonpayment is fraudulent if 130 the claimant has willfully exaggerated the amount unpaid, 131 willfully included a claim for work not performed or materials 132 not furnished for the subject improvement, or prepared the 133 notice with such willful and gross negligence as to amount to a 134 willful exaggeration. However, a minor mistake or error in a 135 notice of nonpayment, or a good faith dispute as to the amount 136 unpaid, does not constitute a willful exaggeration that operates 137 to defeat an otherwise valid claim against the bond. The service 138 of a fraudulent notice of nonpayment is a complete defense to 139 the claimant’s claim against the bond. The notice of nonpayment 140 under this subparagraph must include the following information, 141 current as of the date of the notice, and must be in 142 substantially the following form: 143 144 NOTICE OF NONPAYMENT 145 146 To: ...(name of contractor and address)... 147 148 ...(name of surety and address)... 149 150 The undersigned claimant notifies you that: 151 1. Claimant has furnished ...(describe labor, services, or 152 materials)... for the improvement of the real property 153 identified as ...(property description).... The corresponding 154 amount unpaid to date is $...., of which $.... is unpaid 155 retainage. 156 2. Claimant has been paid to date the amount of $.... for 157 previously furnishing ...(describe labor, services, or 158 materials)... for this improvement. 159 3. Claimant expects to furnish ...(describe labor, 160 services, or materials)... for this improvement in the future 161 (if known), and the corresponding amount expected to become due 162 is $.... (if known). 163 164 I declare that I have read the foregoing Notice of Nonpayment 165 and that the facts stated in it are true to the best of my 166 knowledge and belief. 167 168 DATED on ............, ......... 169 170 ...(signature and address of claimant)... 171 172 STATE OF FLORIDA 173 COUNTY OF ........ 174 175 The foregoing instrument was sworn to (or affirmed) and 176 subscribed before me by means of ☐ physical presence or sworn to 177 (or affirmed) by ☐ online notarization this .... day of ...., 178 ...(year)..., by ...(name of signatory).... 179 180 ...(Signature of Notary Public - State of Florida)... 181 ...(Print, Type, or Stamp Commissioned Name of Notary 182 Public)... 183 184 Personally Known ........ OR Produced Identification ........ 185 186 Type of Identification Produced 187 188 (d) A person may not require a claimant to furnish a waiver 189 that is different from the forms in paragraphs (b) and (c) in 190 exchange for, or to induce payment of, a progress payment or 191 final payment unless the claimant has entered into a direct 192 contract that requires the claimant to furnish a waiver that is 193 different from the forms in paragraphs (b) and (c). 194 (f) Any provisions in a waiver which arethatisnot 195 related to the waiver of a claim or a right to claim against a 196 payment bond as provided in this subsection are unenforceable, 197 unless the claimant has otherwise agreed to those provisions in 198 the direct contractsubstantially similar to the forms in this199subsection is enforceable in accordance with its terms. 200 (12) Unless otherwise provided in this section, service of 201 any document must be made in accordance with s. 713.18. 202 Section 2. Paragraph (c) of subsection (1) of section 203 337.18, Florida Statutes, is amended, and subsection (6) is 204 added to that section, to read: 205 337.18 Surety bonds for construction or maintenance 206 contracts; requirement with respect to contract award; bond 207 requirements; defaults; damage assessments.— 208 (1) 209 (c) A claimant, except a laborer, who is not in privity 210 with the contractor shall, before commencing or not later than 211 90 days after commencing to furnish labor, materials, or 212 supplies for the prosecution of the work, furnish the contractor 213 with a notice that he or she intends to look to the bond for 214 protection. A claimant who is not in privity with the contractor 215 and who has not received payment for his or her labor, 216 materials, or supplies shall deliver to the contractor and to 217 the surety written notice of the performance of the labor or 218 delivery of the materials or supplies and of the nonpayment. The 219 notice of nonpayment may be served at any time during the 220 progress of the work or thereafter but not before 45 days after 221 the first furnishing of labor, services, or materials, and not 222 later than 90 days after the final furnishing of the labor, 223 services, or materials by the claimant or, with respect to 224 rental equipment, not later than 90 days after the date that the 225 rental equipment was last on the job site available for use. An 226 action by a claimant, except a laborer, who is not in privity 227 with the contractor for the labor, materials, or supplies may 228 not be instituted against the contractor or the surety unless 229 both notices have been given. Written notices required or 230 permitted under this section mustmaybe served in accordance 231 withany manner provided ins. 713.18, and provisions for the 232 waiver of a claim or a right to claim against a payment bond 233 contained in s. 713.235 apply to all contracts under this 234 section. 235 (6) Unless otherwise provided in this section, service of 236 any document must be made in accordance with s. 713.18. 237 Section 3. Subsections (4), (8), and (26) of section 238 713.01, Florida Statutes, are amended to read: 239 713.01 Definitions.—As used in this part, the term: 240 (4) “Clerk’s office” means the office of the clerk of the 241 circuit court of the county, or another office serving as the 242 county recorder as provided by law, in which the real property 243 is located. 244 (8) “Contractor” means a person other than a materialman or 245 laborer who enters into a contract with the owner of real 246 property for improving it, or who takes over from a contractor 247 as so defined the entire remaining work under such contract. The 248 term “contractor” includes an architect, landscape architect, or 249 engineer who improves real property pursuant to a design-build 250 contract authorized by s. 489.103(16). The term also includes a 251 licensed general contractor or building contractor, as those 252 terms are defined in s. 489.105(3)(a) and (b), respectively, who 253 provides construction management services, which include 254 responsibility for scheduling and coordination in both 255 preconstruction and construction phases and for the successful, 256 timely, and economical completion of the construction project, 257 or who provides program management services, which include 258 responsibility for schedule control, cost control, and 259 coordination in providing or procuring planning, design, and 260 construction. 261 (26) “Real property” means the land that is improved and 262 the improvements thereon, including fixtures, except any such 263 property owned by the state or any county, municipality, school 264 board, or governmental agency, commission, or political 265 subdivision. The term includes a private leasehold interest that 266 is improved, and the improvements thereon, on land that is owned 267 by the state or any county, municipality, school board, or 268 governmental agency, commission, or political subdivision. 269 Section 4. Section 713.09, Florida Statutes, is amended to 270 read: 271 713.09 Single claim of lien.—A lienor mayis required to272 record only one claim of lien covering his or her entire demand 273 against the real property when the amount demanded is for labor 274 or services or material furnished for more than one improvement 275 under the same direct contract or multiple direct contracts. The 276 single claim of lien is sufficient even though the improvement 277 is for one or more improvements located on separate lots, 278 parcels, or tracts of land. If materials to be used on one or 279 more improvements on separate lots, parcels, or tracts of land 280under one direct contractare delivered by a lienor to a place 281 designated by the person with whom the materialman contracted, 282 other than the site of the improvement, the delivery to the 283 place designated is prima facie evidence of delivery to the site 284 of the improvement and incorporation in the improvement. The 285 single claim of lien may be limited to a part of multiple lots, 286 parcels, or tracts of land and their improvements or may cover 287 all of the lots, parcels, or tracts of land and improvements. If 288 aIn eachclaim of lien under this section is for multiple 289 direct contracts, the owner under the direct contractscontract290 must be the same person for all lots, parcels, or tracts of land 291 against which a single claim of lien is recorded. 292 Section 5. Paragraph (b) of subsection (2) of section 293 713.10, Florida Statutes, is amended, and subsection (4) is 294 added to that section, to read: 295 713.10 Extent of liens.— 296 (2) 297 (b) The interest of the lessor is not subject to liens for 298 improvements made by the lessee when: 299 1. The lease, or a short form or a memorandum of the lease 300 that contains the specific language in the lease prohibiting 301 such liability, is recorded in the official records of the 302 county where the premises are located before the recording of a 303 notice of commencement for improvements to the premises and the 304 terms of the lease expressly prohibit such liability; or 305 2. The terms of the lease expressly prohibit such 306 liability, and a notice advising that leases for the rental of 307 premises on a parcel of land prohibit such liability has been 308 recorded in the official records of the county in which the 309 parcel of land is located before the recording of a notice of 310 commencement for improvements to the premises, and the notice 311 includes the following: 312 a. The name of the lessor. 313 b. The legal description of the parcel of land to which the 314 notice applies. 315 c. The specific language contained in the various leases 316 prohibiting such liability. 317 d. A statement that all or a majority of the leases entered 318 into for premises on the parcel of land expressly prohibit such 319 liability. 3203. The lessee is a mobile home owner who is leasing a321mobile home lot in a mobile home park from the lessor.322 323 A notice that is consistent with subparagraph 2. effectively 324 prohibits liens for improvements made by a lessee even if other 325 leases for premises on the parcel do not expressly prohibit 326 liens or if provisions of each lease restricting the application 327 of liens are not identical. 328 (4) The interest of the lessor is not subject to liens for 329 improvements made by the lessee when the lessee is a mobile home 330 owner who is leasing a mobile home lot in a mobile home park 331 from the lessor. 332 Section 6. Paragraphs (a), (c), and (d) of subsection (1) 333 of section 713.13, Florida Statutes, are amended to read: 334 713.13 Notice of commencement.— 335 (1)(a) Except for an improvement that is exempt under 336pursuant tos. 713.02(5), an owner or the owner’s authorized 337 agent before actually commencing to improve any real property, 338 or recommencing completion of any improvement after default or 339 abandonment, whether or not a project has a payment bond 340 complying with s. 713.23, shall record a notice of commencement 341 in the clerk’s office and forthwith post either a certified copy 342 thereof or a notarized statement that the notice of commencement 343 has been filed for recording along with a copy thereof. The 344 notice of commencement shall contain the following information: 345 1. A description sufficient for identification of the real 346 property to be improved. The description should include the 347 legal description of the property and also should include the 348 street address and tax folio number of the property if available 349 or, if there is no street address available, such additional 350 information as will describe the physical location of the real 351 property to be improved. 352 2. A general description of the improvement. 353 3. The name and address of the owner, the owner’s interest 354 in the site of the improvement, and the name and address of the 355 fee simple titleholder, if other than such owner. 356 4. The name and address of the lessee, if theAlesseewho357 contracts for the improvements asisan owner as defined in s. 358 713.01under s. 713.01(23) and must be listed as the owner359together with a statement that the ownership interest is a360leasehold interest. 361 5.4.The name and address of the contractor. 362 6.5.The name and address of the surety on the payment bond 363 under s. 713.23, if any, and the amount of such bond. 364 7.6.The name and address of any person making a loan for 365 the construction of the improvements. 366 8.7.The name and address within the state of a person 367 other than himself or herself who may be designated by the owner 368 as the person upon whom notices or other documents may be served 369 under this part; and service upon the person so designated 370 constitutes service upon the owner. 371 (c) If the contract between the owner and a contractor 372 named in the notice of commencement expresses a period of time 373 for completion for the construction of the improvement greater 374 than 1 year, the notice of commencement must state that it is 375 effective for a period of 1 year plus any additional period of 376 time. Any payments made by the owner either before recording the 377 notice of commencement or after the expiration of the notice of 378 commencement are considered improper payments. 379 (d) A notice of commencement must be in substantially the 380 following form: 381 382 Permit No..... Tax Folio No..... 383 NOTICE OF COMMENCEMENT 384 State of.... 385 County of.... 386 387 The undersigned hereby gives notice that improvement will be 388 made to certain real property, and in accordance with Chapter 389 713, Florida Statutes, the following information is provided in 390 this Notice of Commencement. 391 1. Description of property: ...(legal description of the 392 property, and street address if available).... 393 2. General description of improvement:..... 394 3.a. Owner: ...name and address.... 395 b. Owner’s phone number:....Owner information or Lessee396information if the Lessee contracted for the improvement:397a. Name and address:.....398b.Interest in property:..... 399 c. Name and address of fee simple titleholder (if different 400 from Owner listed above):..... 401 4.a. Lessee, if the lessee contracted for the improvement: 402 ...(name and address).... 403 b. Lessee’s phone number:.....a.404 5.a. Contractor: ...(name and address).... 405 b. Contractor’s phone number:..... 406 6.5.Surety (if applicable, a copy of the payment bond is 407 attached): 408 a. Name and address:..... 409 b. Phone number:..... 410 c. Amount of bond: $..... 411 7.a.6.a.Lender: ...(name and address).... 412 b. Lender’s phone number:..... 413 8.7.Persons within the State of Florida designated by 414 Owner upon whom notices or other documents may be served as 415 provided by Section 713.13(1)(a)8.713.13(1)(a)7., Florida 416 Statutes: 417 a. Name and address:..... 418 b. Phone numbers of designated persons:..... 419 9.a.8.a.In addition to himself or herself, Owner 420 designates ............ of ............ to receive a copy of the 421 Lienor’s Notice as provided in Section 713.13(1)(b), Florida 422 Statutes. 423 b. Phone number of person or entity designated by 424 owner:..... 425 10.9.Expiration date of notice of commencement (the 426 expiration date will be 1 year afterfromthe date of recording 427 unless a different date is specified)..... 428 429 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE 430 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER 431 PAYMENTS UNDER CHAPTER 713, PART I, SECTION 713.13, FLORIDA 432 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS 433 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND 434 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU 435 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN 436 ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF 437 COMMENCEMENT. 438 439 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s 440 Authorized Officer/Director/Partner/Manager)... 441 442 ...(Signatory’s Title/Office)... 443 444 The foregoing instrument was acknowledged before me by means of 445 ☐ physical presence or acknowledged before me by means of ☐ 446 online notarization, this .... day of ...., ...(year)..., by 447 ...(name of person)... as ...(type of authority, . . . e.g. 448 officer, trustee, attorney in fact)... for ...(name of party on 449 behalf of whom instrument was executed).... 450 451 ...(Signature of Notary Public - State of Florida)... 452 453 ...(Print, Type, or Stamp Commissioned Name of Notary Public)... 454 455 Personally Known .... OR Produced Identification .... 456 457 Type of Identification Produced............ 458 Section 7. Subsections (1), (3), and (4) of section 459 713.132, Florida Statutes, are amended to read: 460 713.132 Notice of termination.— 461 (1) An owner may terminate the period of effectiveness of a 462 notice of commencement by executing, swearing to, and recording 463 a notice of termination that contains: 464 (a) The same information as the notice of commencement; 465 (b) The official records’recording office document book466and pagereference numbers and recording date affixed by the 467 recording office onofthe recorded notice of commencement; 468 (c) A statement of the date as of which the notice of 469 commencement is terminated, which date may not be earlier than 470 30 days after the notice of termination is recorded; 471 (d) A statement specifying that the notice applies to all 472 the real property subject to the notice of commencement or 473 specifying the portion of such real property to which it 474 applies; 475 (e) A statement that all lienors have been paid in full; 476 and 477 (f) A statement that the owner has, before recording the 478 notice of termination, served a copy of the notice of 479 terminationon the contractor andon each lienor who has a 480 direct contract with the owner or who has timely served a notice 481 to owner, and a statement that the owner will serve a copy of 482 the notice of termination on each lienor who timely serves a 483 notice to owner after the notice of termination has been 484 recorded. The owner is not required to serve a copy of the 485 notice of termination on any lienor who has executed a waiver 486 and release of lien upon final payment in accordance with s. 487 713.20. 488 (3) An owner maynotrecord a notice of termination at any 489 time afterexcept after completion of construction, or after490construction ceases before completion andall lienors have been 491 paid in full or pro rata in accordance with s. 713.06(4). 492 (4) If an owner or a contractor, by fraud or collusion, 493 knowingly makes any fraudulent statement or affidavit in a 494 notice of termination or any accompanying affidavit, the owner 495 and the contractor, or either of them,as the case may be,is 496 liable to any lienor who suffers damages as a result of the 497 filing of the fraudulent notice of termination,;and any such 498 lienor has a right of action for damagesoccasioned thereby. 499 (5)(4)A notice of termination must be served before 500 recording on each lienor who has a direct contract with the 501 owner and on each lienor who has timely and properly served a 502 notice to owner in accordance with this part before the 503 recording of the notice of termination. A notice of termination 504 must be recorded in the official records of the county in which 505 the improvement is located. If properly served before recording 506 in accordance with this subsection, the notice of termination 507 terminates the period of effectiveness of the notice of 508 commencement 30 days after the notice of termination is recorded 509 in the official recordsis effective to terminate the notice of510commencement at the later of 30 days after recording of the511notice of terminationor a laterthedate stated in the notice 512 of termination as the date on which the notice of commencement 513 is terminated. However, if a lienor who began work under the 514 notice of commencement before its termination lacks a direct 515 contract with the owner and timely serves his or her notice to 516 owner after the notice of termination has been recorded, the 517 owner must serve a copy of the notice of termination upon such 518 lienor, and the termination of the notice of commencement as to 519 that lienor is effective 30 days after service of the notice of 520 terminationif the notice of termination has been served521pursuant to paragraph (1)(f) on the contractor and on each522lienor who has a direct contract with the owner or who has523served a notice to owner. 524 Section 8. Section 713.18, Florida Statutes, is amended to 525 read: 526 713.18 Manner of serving documentsnotices and other527instruments.— 528 (1) Unless otherwise specifically provided by law, service 529 of any documentnotices, claims of lien, affidavits,530assignments, and other instrumentspermitted or required under 531 this part, s. 255.05, or s. 337.18, or copies thereof when so 532 permitted or required,unless otherwise specifically provided in533this part,must be made by one of the following methods: 534 (a) By handactualdelivery to the person to be served;if535a partnership, to one of the partners; if a corporation, to an536officer, director, managing agent, or business agent; or, if a537limited liability company, to a member or manager. 538 (b) By common carrier delivery service or by registered, 539 Global Express Guaranteed, or certified mail to the person to be 540 served, with postage or shipping paid by the sender and with 541 evidence of delivery, which may be in an electronic format. 542 (c) By posting on the site of the improvement if service as 543 provided by paragraph (a) or paragraph (b) cannot be 544 accomplished. 545 (2) Notwithstanding subsection (1), service of a notice to 546 owner or a preliminary notice to contractor under this part, s. 547 255.05, or s. 337.18, or s. 713.23is effective as of the date 548 of mailing and the requirements for service under this section 549 have been satisfied if: 550 (a) The notice is mailed by registered, Global Express 551 Guaranteed, or certified mail, with postage prepaid, to the 552 person to be served and addressed as prescribedat any of the553addresses set forthin subsection (3); 554 (b) The notice is mailed within 40 days after the date the 555 lienor first furnishes labor, services, or materials; and 556 (c)1. The person who served the notice maintains a 557 registered or certified mail log that shows the registered or 558 certified mail number issued by the United States Postal 559 Service, the name and address of the person served, and the date 560 stamp of the United States Postal Service confirming the date of 561 mailing; or 562 2. The person who served the notice maintainselectronic563 tracking records approved or generated by the United States 564 Postal Service containing the postal tracking number, the name565and address of the person served,and verification of the date 566 of receipt by the United States Postal Service. 567 (3)(a) Notwithstanding subsection (1), service of a 568 document underan instrument pursuant tothis section is 569 effective on the date of mailing or shipping, and the 570 requirements for service under this section have been satisfied, 571the instrumentif the documentit: 572 1. Is sent to the last address shown in the notice of 573 commencement or any amendment thereto or, in the absence of a 574 properly indexed notice of commencement that contains the 575 information specified in s. 713.13(1)(b),notice of576commencement, to the last address shown in thebuilding permit577application,orto the last known address of the person to be 578 served unless otherwise specifically provided in this part, s. 579 255.05, or s. 337.18; and 580 2. Is returned as being “refused,” “moved, not 581 forwardable,” or “unclaimed,” or is otherwise not delivered or 582 deliverable through no fault of the person serving the document 583item. 584 (b) If the address shown in the notice of commencement or 585 any amendment theretoto the notice of commencement, or, in the586absence of a notice of commencement, in the building permit587application,is incomplete for purposes of mailing or delivery, 588 the person serving the documentitemmay complete the address 589 and properly format it according to United States Postal Service 590 addressing standards using information obtained from the 591 property appraiser or another public record without affecting 592 the validity of service under this section. 593 (4) A documentnoticeserved by a lienor on one owner or 594 one partner of a partnership owning the real property is deemed 595 served onnotice toall owners and partners. 596 Section 9. Subsections (6) and (8) of section 713.20, 597 Florida Statutes, are amended to read: 598 713.20 Waiver or release of liens.— 599 (6) A person may not require a lienor to furnish a lien 600 waiver or release of lien that is different from the forms in 601 subsection (4) or subsection (5) in exchange for, or to induce 602 payment of, a progress payment or final payment unless the 603 lienor has entered into a direct contract that requires the 604 lienor to furnish a waiver or release that is different from the 605 forms in subsection (4) or subsection (5). 606 (8) Any provisions in a lien waiver or lien release which 607 arethatisnot related to the waiver or release of a lien or 608 the right to claim a lien as provided in this section are 609 unenforceable, unless the lienor has otherwise agreed to those 610 provisions in the direct contractsubstantially similar to the611forms in subsections (4) and (5) is enforceable in accordance612with the terms of the lien waiver or lien release. 613 Section 10. Section 713.21, Florida Statutes, is amended to 614 read: 615 713.21 Discharge of lien.—A lien properly perfected under 616 this chapter may be discharged, or released in whole or in part, 617 by any of the following methods: 618 (1) By entering satisfaction of the lien upon the margin of 619 the record thereof in the clerk’s office when not otherwise 620 prohibited by law. This satisfaction shall be signed by the 621 lienor, the lienor’s agent or attorney and attested by said 622 clerk. Any person who executes a claim of lien hasshall have623 authority to execute a satisfaction in the absence of actual 624 notice of lack of authority to any person relying on the same. 625 (2) By the satisfaction or release of the lienor, duly 626 acknowledged and recorded in the clerk’s office. The 627 satisfaction or release must include the lienor’s notarized 628 signature and set forth the official records’ reference numbers 629 and recording date affixed by the recording office on the 630 subject lien. Any person who executes a claim of lien hasshall631haveauthority to execute a satisfaction or release in the 632 absence of actual notice of lack of authority to any person 633 relying on the same. 634 (3) By failure to begin an action to enforce the lien 635 within the time prescribed in this part. 636 (4) By an order of the circuit court of the county where 637 the property is located, as provided in this subsection. Upon 638 filing a complaint therefor by any interested party the clerk 639 shall issue a summons to the lienor to show cause within 20 days 640 why his or her lien should not be enforced by action or vacated 641 and canceled of record. Upon failure of the lienor to show cause 642 why his or her lien should not be enforced or the lienor’s 643 failure to commence such action before the return date of the 644 summons the court shall forthwith order cancellation of the 645 lien. 646 (5) By recording in the clerk’s office the original or a 647 certified copy of a judgment or decree of a court of competent 648 jurisdiction showing a final determination of the action. 649 Section 11. Paragraph (d) of subsection (1) of section 650 713.23, Florida Statutes, is amended to read: 651 713.23 Payment bond.— 652 (1) 653 (d) In addition, a lienor who has not received payment for 654 furnishing his or her labor, services, or materials must, as a 655 condition precedent to recovery under the bond, serve a written 656 notice of nonpayment ontothe contractor and a copy of the 657 notice on the surety. The notice must be under oath and served 658 during the progress of the work or thereafter, but may not be 659 served later than 90 days after the final furnishing of labor, 660 services, or materials by the lienor, or, with respect to rental 661 equipment, later than 90 days after the date the rental 662 equipment was on the job site and available for use. A notice of 663 nonpayment that includes sums for retainage must specify the 664 portion of the amount claimed for retainage. The required notice 665 satisfies this condition precedent with respect to the payment 666 described in the notice of nonpayment, including unpaid finance 667 charges due under the lienor’s contract, and with respect to any 668 other payments which become due to the lienor after the date of 669 the notice of nonpayment. The time period for serving a notice 670 of nonpayment isshall bemeasured from the last day of 671 furnishing labor, services, or materials by the lienor and may 672 not be measured by other standards, such as the issuance of a 673 certificate of occupancy or the issuance of a certificate of 674 substantial completion. The failure of a lienor to receive 675 retainage sums not in excess of 10 percent of the value of 676 labor, services, or materials furnished by the lienor is not 677 considered a nonpayment requiring the service of the notice 678 provided under this paragraph. If the payment bond is not 679 recorded before commencement of construction, the time period 680 for the lienor to serve a notice of nonpayment may at the option 681 of the lienor be calculated from the date specified in this 682 section or the date the lienor is served a copy of the bond. 683 However, the limitation period for commencement of an action on 684 the payment bond as established in paragraph (e) may not be 685 expanded. The negligent inclusion or omission of any information 686 in the notice of nonpayment that has not prejudiced the 687 contractor or surety does not constitute a default that operates 688 to defeat an otherwise valid bond claim. A lienor who serves a 689 fraudulent notice of nonpayment forfeits his or her rights under 690 the bond. A notice of nonpayment is fraudulent if the lienor has 691 willfully exaggerated the amount unpaid, willfully included a 692 claim for work not performed or materials not furnished for the 693 subject improvement, or prepared the notice with such willful 694 and gross negligence as to amount to a willful exaggeration. 695 However, a minor mistake or error in a notice of nonpayment, or 696 a good faith dispute as to the amount unpaid, does not 697 constitute a willful exaggeration that operates to defeat an 698 otherwise valid claim against the bond. The service of a 699 fraudulent notice of nonpayment is a complete defense to the 700 lienor’s claim against the bond. The notice under this paragraph 701 must include the following information, current as of the date 702 of the notice, and must be in substantially the following form: 703 704 NOTICE OF NONPAYMENT 705 706 To ...(name of contractor and address)... 707 708 ...(name of surety and address)... 709 710 The undersigned lienor notifies you that: 711 1. The lienor has furnished ...(describe labor, services, 712 or materials)... for the improvement of the real property 713 identified as ...(property description).... The corresponding 714 amount unpaid to date is $...., of which $.... is unpaid 715 retainage. 716 2. The lienor has been paid to date the amount of $.... for 717 previously furnishing ...(describe labor, services, or 718 materials)... for this improvement. 719 3. The lienor expects to furnish ...(describe labor, 720 services, or materials)... for this improvement in the future 721 (if known), and the corresponding amount expected to become due 722 is $.... (if known). 723 724 I declare that I have read the foregoing Notice of Nonpayment 725 and that the facts stated in it are true to the best of my 726 knowledge and belief. 727 728 DATED on ............, ......... 729 730 ...(signature and address of lienor)... 731 732 STATE OF FLORIDA 733 COUNTY OF........ 734 735 The foregoing instrument was sworn to (or affirmed) and 736 subscribed before me by means of ☐ physical presence or sworn to 737 (or affirmed) by ☐ online notarization, this .... day of ...., 738 ...(year)..., by ...(name of signatory).... 739 ...(Signature of Notary Public - State of Florida)... 740 ...(Print, Type, or Stamp Commissioned Name of Notary 741 Public)... 742 743 Personally Known ........ OR Produced Identification ........ 744 745 Type of Identification Produced 746 Section 12. Subsections (3) and (5) of section 713.235, 747 Florida Statutes, are amended to read: 748 713.235 Waivers of right to claim against payment bond; 749 forms.— 750 (3) A person may not require a claimant to furnish a waiver 751 that is different from the forms in subsections (1) and (2) in 752 exchange for, or to induce payment of, a progress payment or 753 final payment unless the claimant has entered into a direct 754 contract that requires the claimant to furnish a waiver that is 755 different from the forms in subsections (1) and (2). 756 (5) Any provisions in a waiver which arethatisnot 757 related to the waiver of a claim or a right to claim against the 758 payment bond as provided in this section are unenforceable, 759 unless the claimant has otherwise agreed to those provisions in 760 the claimant’s direct contractsubstantially similar to the761forms in this section is enforceable in accordance with its762terms. 763 Section 13. Section 713.29, Florida Statutes, is amended to 764 read: 765 713.29 AttorneyAttorney’sfees.—In any action brought to 766 enforce a lien, including a lien that has been transferred to 767 security, or to enforce a claim against a bond under this part, 768 the prevailing party is entitled to recover a reasonable fee for 769 the services of her or his attorney for trial and appeal or for 770 arbitration, in an amount to be determined by the court, which 771 fee must be taxed as part of the prevailing party’s costs, as 772 allowed in equitable actions. 773 Section 14. This act shall take effect July 1, 2021.