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) 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 on to the
   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
  120  shall be measured 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 are that is not
  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 contract substantially similar to the forms in this
  199  subsection 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 must may be served in accordance
  231  with any manner provided in s. 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 may is required to
  272  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
  280  under one direct contract are 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  a In each claim of lien under this section is for multiple
  289  direct contracts, the owner under the direct contracts contract
  290  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.
  320         3. The lessee is a mobile home owner who is leasing a
  321  mobile 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
  336  pursuant to s. 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 the A lessee who
  357  contracts for the improvements as is an owner as defined in s.
  358  713.01 under s. 713.01(23) and must be listed as the owner
  359  together with a statement that the ownership interest is a
  360  leasehold 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 Lessee
  396  information if the Lessee contracted for the improvement:
  397         a. Name and address:.....
  398         b. 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 after from the 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 book
  466  and page reference numbers and recording date affixed by the
  467  recording office on of the 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  termination on the contractor and on 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 may not record a notice of termination at any
  489  time after except after completion of construction, or after
  490  construction ceases before completion and all 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 damages occasioned 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 records is effective to terminate the notice of
  510  commencement at the later of 30 days after recording of the
  511  notice of termination or a later the date 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  termination if the notice of termination has been served
  521  pursuant to paragraph (1)(f) on the contractor and on each
  522  lienor who has a direct contract with the owner or who has
  523  served a notice to owner.
  524         Section 8. Section 713.18, Florida Statutes, is amended to
  525  read:
  526         713.18 Manner of serving documents notices and other
  527  instruments.—
  528         (1) Unless otherwise specifically provided by law, service
  529  of any document notices, claims of lien, affidavits,
  530  assignments, and other instruments permitted 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 in
  533  this part, must be made by one of the following methods:
  534         (a) By hand actual delivery to the person to be served; if
  535  a partnership, to one of the partners; if a corporation, to an
  536  officer, director, managing agent, or business agent; or, if a
  537  limited 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. 713.23 is 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 prescribed at any of the
  553  addresses set forth in 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 maintains electronic
  563  tracking records approved or generated by the United States
  564  Postal Service containing the postal tracking number, the name
  565  and 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 under an instrument pursuant to this section is
  569  effective on the date of mailing or shipping, and the
  570  requirements for service under this section have been satisfied,
  571  the instrument if the document it:
  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 of
  576  commencement, to the last address shown in the building permit
  577  application, or to 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
  583  item.
  584         (b) If the address shown in the notice of commencement or
  585  any amendment thereto to the notice of commencement, or, in the
  586  absence of a notice of commencement, in the building permit
  587  application, is incomplete for purposes of mailing or delivery,
  588  the person serving the document item may 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 document notice served by a lienor on one owner or
  594  one partner of a partnership owning the real property is deemed
  595  served on notice to all 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  are that is not 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 contract substantially similar to the
  611  forms in subsections (4) and (5) is enforceable in accordance
  612  with 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 has shall have
  623  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 has shall
  631  have authority 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 on to the 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 is shall be measured 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 are that is not
  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 contract substantially similar to the
  761  forms in this section is enforceable in accordance with its
  762  terms.
  763         Section 13. Section 713.29, Florida Statutes, is amended to
  764  read:
  765         713.29 Attorney Attorney’s fees.—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.

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