Florida Senate - 2021 SB 622 By Senator Perry 8-00207D-21 2021622__ Page 1 of 27 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1

An act relating to liens and bonds; amending s. 2 255.05, F.S.; requiring that a copy of a notice of 3 nonpayment be served on the surety; revising the 4 process for notarizing a notice of nonpayment; 5 prohibiting a person from requiring a claimant to 6 furnish a certain waiver in exchange for or to induce 7 certain payments; providing that specified provisions 8 in certain waivers are unenforceable; providing an 9 exception; requiring service of documents to be made 10 in a specified manner; amending s. 337.18, F.S.; 11 providing that certain waivers apply to certain 12 contracts; requiring service of documents to be made 13 in a specified manner; amending s. 713.01, F.S.; 14 revising

definitions; amending s. 713.09, F.S.; 15 authorizing a lienor to record one claim of lien for 16 multiple direct contracts; amending s. 713.10, F.S.; 17 revising the extent of certain liens; amending s. 18 713.13, F.S.; revising information to be included in a 19 notice of commencement; specifying that payments made 20 by an owner before the recording of a notice of 21 commencement are considered improper payments; 22 revising the process for notarizing a notice of 23 commencement; amending s. 713.132, F.S.; revising 24 requirements for a notice of termination; amending s. 25 713.18, F.S.; requiring service of documents relating 26 to construction bonds to be made in a specified 27 manner; making technical changes; amending s. 713.20, 28 F.S.; prohibiting a person from requiring a lienor to 29

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 2 of 27 CODING: Words stricken are deletions; words underlined are additions. furnish a certain waiver or release in exchange for or 30 to induce certain payments; providing that specified 31 provisions in certain waivers or releases are 32 unenforceable; providing an exception; amending s. 33 713.21, F.S.; authorizing the full or partial release 34 of a lien under specified conditions; amending s. 35 713.23, F.S.; requiring that a copy of a notice of 36 nonpayment be served on the surety; revising the 37 process for notarizing a notice of nonpayment under a 38 payment bond; amending s. 713.235, F.S.; prohibiting a 39 person from requiring a lienor to furnish a certain 40 waiver or release in exchange for or to induce certain 41 payments; providing that specified provisions in 42 certain waivers or releases are unenforceable; 43 providing an exception; amending s. 713.29, F.S.; 44 authorizing attorney fees in actions to enforce a lien 45 that has been transferred to security; providing an 46 effective date. 47 48 Be It Enacted by the Legislature of the State of Florida: 49 50

Section 1. Paragraphs (a), (d), and (

f) of subsection (2) 51 of

section 255.05, Florida Statutes, are amended, and subsection 52 (12) is added to that section, to read: 53 255.05 Bond of contractor constructing public buildings; 54 form; action by claimants.— 55 (2)(a)1. If a claimant is no longer furnishing labor, 56 services, or materials on a project, a contractor or the 57 contractor’s agent or attorney may elect to shorten the time 58

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 3 of 27 CODING: Words stricken are deletions; words underlined are additions. within which an action to enforce any claim against a payment 59 bond must be commenced by recording in the clerk’s office a 60 notice in substantially the following form: 61 62 NOTICE OF CONTEST OF CLAIM 63 AGAINST PAYMENT BOND 64 65 To: ...(Name and address of claimant)... 66 67 You are notified that the undersigned contests your notice 68 of nonpayment, dated ............, ........, and served on the 69 undersigned on ............, ........, and that the time within 70 which you may file suit to enforce your claim is limited to 60 71 days after the date of service of this notice. 72 73 DATED on ............, ......... 74 75 Signed: ...(Contractor or Attorney)... 76 77 The claim of a claimant upon whom such notice is served and who 78 fails to institute a suit to enforce his or her claim against 79 the payment bond within 60 days after service of such notice is 80 extinguished automatically.

The contractor or the contractor’s 81 attorney shall serve a copy of the notice of contest on to the 82 claimant at the address shown in the notice of nonpayment or 83 most recent amendment thereto and shall certify to such service 84 on the face of the notice and record the notice. 85 2. A claimant, except a laborer, who is not in privity with 86 the contractor shall, before commencing or not later than 45 87

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 4 of 27 CODING: Words stricken are deletions; words underlined are additions. days after commencing to furnish labor, services, or materials 88 for the prosecution of the work, serve the contractor with a 89 written notice that he or she intends to look to the bond for 90 protection. A claimant who is not in privity with the contractor 91 and who has not received payment for furnishing his or her 92 labor, services, or materials shall serve a written notice of 93 nonpayment on the contractor and a copy of the notice on the 94 surety.

The notice of nonpayment shall be under oath and served 95 during the progress of the work or thereafter but may not be 96 served earlier than 45 days after the first furnishing of labor, 97 services, or materials by the claimant or later than 90 days 98 after the final furnishing of the labor, services, or materials 99 by the claimant or, with respect to rental equipment, later than 100 90 days after the date that the rental equipment was last on the 101 job site available for use.

Any notice of nonpayment served by a 102 claimant who is not in privity with the contractor which 103 includes sums for retainage must specify the portion of the 104 amount claimed for retainage. An action for the labor, services, 105 or materials may not be instituted against the contractor or the 106 surety unless the notice to the contractor and notice of 107 nonpayment have been served, if required by this section. 108 Notices required or permitted under this

section must be served 109 in accordance with s. 713.18. A claimant may not waive in 110 advance his or her right to bring an action under the bond 111 against the surety. In any action brought to enforce a claim 112 against a payment bond under this section, the prevailing party 113 is entitled to recover a reasonable fee for the services of his 114 or her attorney for trial and appeal or for arbitration, in an 115 amount to be determined by the court, which fee must be taxed as 116

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 5 of 27 CODING: Words stricken are deletions; words underlined are additions. part of the prevailing party’s costs, as allowed in equitable 117 actions. The time periods for service of a notice of nonpayment 118 or for bringing an action against a contractor or a surety are 119 shall be measured from the last day of furnishing labor, 120 services, or materials by the claimant and may not be measured 121 by other standards, such as the issuance of a certificate of 122 occupancy or the issuance of a certificate of substantial 123 completion.

The negligent inclusion or omission of any 124 information in the notice of nonpayment that has not prejudiced 125 the contractor or surety does not constitute a default that 126 operates to defeat an otherwise valid bond claim. A claimant who 127 serves a fraudulent notice of nonpayment forfeits his or her 128 rights under the bond.

A notice of nonpayment is fraudulent if 129 the claimant has willfully exaggerated the amount unpaid, 130 willfully included a claim for work not performed or materials 131 not furnished for the subject improvement, or prepared the 132 notice with such willful and gross negligence as to amount to a 133 willful exaggeration. However, a minor mistake or error in a 134 notice of nonpayment, or a good faith dispute as to the amount 135 unpaid, does not constitute a willful exaggeration that operates 136 to defeat an otherwise valid claim against the bond.

The service 137 of a fraudulent notice of nonpayment is a complete defense to 138 the claimant’s claim against the bond. The notice of nonpayment 139 under this subparagraph must include the following information, 140 current as of the date of the notice, and must be in 141 substantially the following form: 142 143 NOTICE OF NONPAYMENT 144 145

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 6 of 27 CODING: Words stricken are deletions; words underlined are additions. To: ...(name of contractor and address)... 146 147 ...(name of surety and address)... 148 149 The undersigned claimant notifies you that: 150 1. Claimant has furnished ...(describe labor, services, or 151 materials)... for the improvement of the real property 152 identified as ...(property description).... The corresponding 153 amount unpaid to date is $...., of which $.... is unpaid 154 retainage. 155 2.

Claimant has been paid to date the amount of $.... for 156 previously furnishing ...(describe labor, services, or 157 materials)... for this improvement. 158 3.

Claimant expects to furnish ...(describe labor, 159 services, or materials)... for this improvement in the future 160 (if known), and the corresponding amount expected to become due 161 is $.... (if known). 162 163 I declare that I have read the foregoing Notice of Nonpayment 164 and that the facts stated in it are true to the best of my 165 knowledge and belief. 166 167 DATED on ............, ......... 168 169 ...(signature and address of claimant)... 170 171 STATE OF FLORIDA 172 COUNTY OF ........ 173 174

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 7 of 27 CODING: Words stricken are deletions; words underlined are additions. The foregoing instrument was sworn to (or affirmed) and 175 subscribed before me by means of ☐ physical presence or sworn to 176 (or affirmed) by ☐ online notarization this .... day of ...., 177 ...(year)..., by ...(name of signatory).... 178 179 ...(Signature of Notary Public - State of Florida)... 180 ...(Print, Type, or Stamp Commissioned Name of Notary 181 Public)... 182 183 Personally Known ........ OR Produced Identification ........ 184 185 Type of Identification Produced 186 187 (

d) A person may not require a claimant to furnish a waiver 188 that is different from the forms in paragraphs (

b) and (

c) in 189 exchange for, or to induce payment of, a progress payment or 190 final payment unless the claimant has entered into a direct 191 contract that requires the claimant to furnish a waiver that is 192 different from the forms in paragraphs (

b) and (c). 193 (

f) Any provisions in a waiver which are that is not 194 related to the waiver of a claim or a right to claim against a 195 payment bond as provided in this subsection are unenforceable, 196 unless the claimant has otherwise agreed to those provisions in 197 the direct contract substantially similar to the forms in this 198 subsection is enforceable in accordance with its terms. 199

(12) Unless otherwise provided in this section, service of 200 any document must be made in accordance with s. 713.18. 201

Section 2. Paragraph (

c) of subsection (1) of

section 202 337.18, Florida Statutes, is amended, and subsection (6) is 203

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 8 of 27 CODING: Words stricken are deletions; words underlined are additions. added to that section, to read: 204 337.18 Surety bonds for construction or maintenance 205 contracts; requirement with respect to contract award; bond 206 requirements; defaults; damage assessments.— 207 (1) 208 (

c) A claimant, except a laborer, who is not in privity 209 with the contractor shall, before commencing or not later than 210 90 days after commencing to furnish labor, materials, or 211 supplies for the prosecution of the work, furnish the contractor 212 with a notice that he or she intends to look to the bond for 213 protection.

A claimant who is not in privity with the contractor 214 and who has not received payment for his or her labor, 215 materials, or supplies shall deliver to the contractor and to 216 the surety written notice of the performance of the labor or 217 delivery of the materials or supplies and of the nonpayment.

The 218 notice of nonpayment may be served at any time during the 219 progress of the work or thereafter but not before 45 days after 220 the first furnishing of labor, services, or materials, and not 221 later than 90 days after the final furnishing of the labor, 222 services, or materials by the claimant or, with respect to 223 rental equipment, not later than 90 days after the date that the 224 rental equipment was last on the job site available for use.

An 225 action by a claimant, except a laborer, who is not in privity 226 with the contractor for the labor, materials, or supplies may 227 not be instituted against the contractor or the surety unless 228 both notices have been given. Written notices required or 229 permitted under this

section must may be served in accordance 230 with any manner provided in s. 713.18, and provisions for the 231 waiver of a claim or a right to claim against a payment bond 232

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 9 of 27 CODING: Words stricken are deletions; words underlined are additions. contained in s. 713.235 apply to all contracts under this 233 section. 234

(6) Unless otherwise provided in this section, service of 235 any document must be made in accordance with s. 713.18. 236

Section 3. Subsections (4), (8), and (26) of

section 237 713.01, Florida Statutes, are amended to read: 238 713.01

Definitions.—As used in this part, the term: 239 (4) “Clerk’s office” means the office of the clerk of the 240 circuit court of the county, or another office serving as the 241 county recorder as provided by law, in which the real property 242 is located. 243 (8) “Contractor” means a person other than a materialman or 244 laborer who enters into a contract with the owner of real 245 property for improving it, or who takes over from a contractor 246 as so defined the entire remaining work under such contract.

The 247 term “contractor” includes an architect, landscape architect, or 248 engineer who improves real property pursuant to a design-build 249 contract authorized by s. 489.103(16). The term also includes a 250 licensed general contractor or building contractor, as those 251 terms are defined in s. 489.105(3)(

a) and (b), respectively, who 252 provides construction management services, which include 253 responsibility for scheduling and coordination in both 254 preconstruction and construction phases and for the successful, 255 timely, and economical completion of the construction project, 256 or who provides program management services, which include 257 responsibility for

schedule control, cost control, and 258 coordination in providing or procuring planning, design, and 259 construction. 260 (26) “Real property” means the land that is improved and 261

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 10 of 27 CODING: Words stricken are deletions; words underlined are additions. the improvements thereon, including fixtures, except any such 262 property owned by the state or any county, municipality, school 263 board, or governmental agency, commission, or political 264 subdivision. The term includes a private leasehold interest that 265 is improved, and the improvements thereon, on land that is owned 266 by the state or any county, municipality, school board, or 267 governmental agency, commission, or political subdivision. 268

Section

Section 713.09, Florida Statutes, is amended to 269 read: 270 713.09 Single claim of lien.—A lienor may is required to 271 record only one claim of lien covering his or her entire demand 272 against the real property when the amount demanded is for labor 273 or services or material furnished for more than one improvement 274 under the same direct contract or multiple direct contracts. The 275 single claim of lien is sufficient even though the improvement 276 is for one or more improvements located on separate lots, 277 parcels, or tracts of land.

If materials to be used on one or 278 more improvements on separate lots, parcels, or tracts of land 279 under one direct contract are delivered by a lienor to a place 280 designated by the person with whom the materialman contracted, 281 other than the site of the improvement, the delivery to the 282 place designated is prima facie evidence of delivery to the site 283 of the improvement and incorporation in the improvement.

The 284 single claim of lien may be limited to a part of multiple lots, 285 parcels, or tracts of land and their improvements or may cover 286 all of the lots, parcels, or tracts of land and improvements. If 287 a In each claim of lien under this

section is for multiple 288 direct contracts, the owner under the direct contracts contract 289 must be the same person for all lots, parcels, or tracts of land 290

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 11 of 27 CODING: Words stricken are deletions; words underlined are additions. against which a single claim of lien is recorded. 291

Section 5. Paragraph (

b) of subsection (2) of

section 292 713.10, Florida Statutes, is amended, and subsection (4) is 293 added to that section, to read: 294 713.10 Extent of liens.— 295 (2) 296 (

b) The interest of the lessor is not subject to liens for 297 improvements made by the lessee when: 298 1. The lease, or a short form or a memorandum of the lease 299 that contains the specific language in the lease prohibiting 300 such liability, is recorded in the official records of the 301 county where the premises are located before the recording of a 302 notice of commencement for improvements to the premises and the 303 terms of the lease expressly prohibit such liability; or 304 2.

The terms of the lease expressly prohibit such 305 liability, and a notice advising that leases for the rental of 306 premises on a parcel of land prohibit such liability has been 307 recorded in the official records of the county in which the 308 parcel of land is located before the recording of a notice of 309 commencement for improvements to the premises, and the notice 310 includes the following: 311 a. The name of the lessor. 312 b. The legal description of the parcel of land to which the 313 notice applies. 314 c. The specific language contained in the various leases 315 prohibiting such liability. 316 d.

A statement that all or a majority of the leases entered 317 into for premises on the parcel of land expressly prohibit such 318 liability. 319

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 12 of 27 CODING: Words stricken are deletions; words underlined are additions. 3. The lessee is a mobile home owner who is leasing a 320 mobile home lot in a mobile home park from the lessor. 321 322 A notice that is consistent with subparagraph 2. effectively 323 prohibits liens for improvements made by a lessee even if other 324 leases for premises on the parcel do not expressly prohibit 325 liens or if provisions of each lease restricting the application 326 of liens are not identical. 327

(4) The interest of the lessor is not subject to liens for 328 improvements made by the lessee when the lessee is a mobile home 329 owner who is leasing a mobile home lot in a mobile home park 330 from the lessor. 331

Section 6. Paragraphs (a), (c), and (

d) of subsection (1) 332 of

section 713.13, Florida Statutes, are amended to read: 333 713.13 Notice of commencement.— 334 (1)(

a) Except for an improvement that is exempt under 335 pursuant to s. 713.02(5), an owner or the owner’s authorized 336 agent before actually commencing to improve any real property, 337 or recommencing completion of any improvement after default or 338 abandonment, whether or not a project has a payment bond 339 complying with s. 713.23, shall record a notice of commencement 340 in the clerk’s office and forthwith post either a certified copy 341 thereof or a notarized statement that the notice of commencement 342 has been filed for recording along with a copy thereof.

The 343 notice of commencement shall contain the following information: 344 1. A description sufficient for identification of the real 345 property to be improved. The description should include the 346 legal description of the property and also should include the 347 street address and tax folio number of the property if available 348

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 13 of 27 CODING: Words stricken are deletions; words underlined are additions. or, if there is no street address available, such additional 349 information as will describe the physical location of the real 350 property to be improved. 351 2. A general description of the improvement. 352 3. The name and address of the owner, the owner’s interest 353 in the site of the improvement, and the name and address of the 354 fee simple titleholder, if other than such owner. 355 4.

The name and address of the lessee, if the A lessee who 356 contracts for the improvements as is an owner as defined in s. 357 713.01 under s. 713.01(23) and must be listed as the owner 358 together with a statement that the ownership interest is a 359 leasehold interest. 360 5.4. The name and address of the contractor. 361 6.5. The name and address of the surety on the payment bond 362 under s. 713.23, if any, and the amount of such bond. 363 7.6. The name and address of any person making a loan for 364 the construction of the improvements. 365 8.7.

The name and address within the state of a person 366 other than himself or herself who may be designated by the owner 367 as the person upon whom notices or other documents may be served 368 under this part; and service upon the person so designated 369 constitutes service upon the owner. 370 (

c) If the contract between the owner and a contractor 371 named in the notice of commencement expresses a period of time 372 for completion for the construction of the improvement greater 373 than 1 year, the notice of commencement must state that it is 374 effective for a period of 1 year plus any additional period of 375 time. Any payments made by the owner either before recording the 376 notice of commencement or after the expiration of the notice of 377

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 14 of 27 CODING: Words stricken are deletions; words underlined are additions. commencement are considered improper payments. 378 (

d) A notice of commencement must be in substantially the 379 following form: 380 381 Permit No..... Tax Folio No..... 382 NOTICE OF COMMENCEMENT 383 State of.... 384 County of.... 385 386 The undersigned hereby gives notice that improvement will be 387 made to certain real property, and in accordance with

Chapter 388 713, Florida Statutes, the following information is provided in 389 this Notice of Commencement. 390 1. Description of property: ...(legal description of the 391 property, and street address if available).... 392 2. General description of improvement:..... 393 3.a. Owner: ...name and address.... 394 b. Owner’s phone number:.... Owner information or Lessee 395 information if the Lessee contracted for the improvement: 396 a. Name and address:..... 397 b. Interest in property:..... 398 c. Name and address of fee simple titleholder (if different 399 from Owner listed above):..... 400 4.a.

Lessee, if the lessee contracted for the improvement: 401 ...(name and address).... 402 b. Lessee’s phone number:..... a. 403 5.a. Contractor: ...(name and address).... 404 b. Contractor’s phone number:..... 405 6.5. Surety (if applicable, a copy of the payment bond is 406

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 15 of 27 CODING: Words stricken are deletions; words underlined are additions. attached): 407 a. Name and address:..... 408 b. Phone number:..... 409 c. Amount of bond: $..... 410 7.a.6.a. Lender: ...(name and address).... 411 b. Lender’s phone number:..... 412 8.7. Persons within the State of Florida designated by 413 Owner upon whom notices or other documents may be served as 414 provided by

Section 713.13(1)(a)8. 713.13(1)(a)7., Florida 415 Statutes: 416 a. Name and address:..... 417 b. Phone numbers of designated persons:..... 418 9.a.8.a. In addition to himself or herself, Owner 419 designates ............ of ............ to receive a copy of the 420 Lienor’s Notice as provided in

Section 713.13(1)(b), Florida 421 Statutes. 422 b. Phone number of person or entity designated by 423 owner:..... 424 10.9. Expiration date of notice of commencement (the 425 expiration date will be 1 year after from the date of recording 426 unless a different date is specified)..... 427 428 WARNING TO OWNER: ANY PAYMENTS MADE BY THE OWNER AFTER THE 429 EXPIRATION OF THE NOTICE OF COMMENCEMENT ARE CONSIDERED IMPROPER 430 PAYMENTS UNDER

CHAPTER 713,

PART I,

SECTION 713.13, FLORIDA 431 STATUTES, AND CAN RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS 432 TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST BE RECORDED AND 433 POSTED ON THE JOB SITE BEFORE THE FIRST INSPECTION. IF YOU 434 INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN 435

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 16 of 27 CODING: Words stricken are deletions; words underlined are additions.

ATTORNEY BEFORE COMMENCING WORK OR RECORDING YOUR NOTICE OF 436 COMMENCEMENT. 437 438 ...(Signature of Owner or Lessee, or Owner’s or Lessee’s 439 Authorized Officer/Director/Partner/Manager)... 440 441 ...(Signatory’s Title/Office)... 442 443 The foregoing instrument was acknowledged before me by means of 444 ☐ physical presence or acknowledged before me by means of ☐ 445 online notarization, this .... day of ...., ...(year)..., by 446 ...(name of person)... as ...(type of authority, . . . e.g. 447 officer, trustee, attorney in fact)... for ...(name of party on 448 behalf of whom instrument was executed).... 449 450 ...(Signature of Notary Public - State of Florida)... 451 452 ...(Print, Type, or Stamp Commissioned Name of Notary Public)... 453 454 Personally Known ....

OR Produced Identification .... 455 456 Type of Identification Produced............ 457

Section 7. Subsections (1), (3), and (4) of

section 458 713.132, Florida Statutes, are amended to read: 459 713.132 Notice of termination.— 460

(1) An owner may terminate the period of effectiveness of a 461 notice of commencement by executing, swearing to, and recording 462 a notice of termination that contains: 463 (

a) The same information as the notice of commencement; 464

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 17 of 27 CODING: Words stricken are deletions; words underlined are additions. (

b) The official records’ recording office document book 465 and page reference numbers and recording date affixed by the 466 recording office on of the recorded notice of commencement; 467 (

c) A statement of the date as of which the notice of 468 commencement is terminated, which date may not be earlier than 469 30 days after the notice of termination is recorded; 470 (

d) A statement specifying that the notice applies to all 471 the real property subject to the notice of commencement or 472 specifying the portion of such real property to which it 473 applies; 474 (

e) A statement that all lienors have been paid in full; 475 and 476 (

f) A statement that the owner has, before recording the 477 notice of termination, served a copy of the notice of 478 termination on the contractor and on each lienor who has a 479 direct contract with the owner or who has timely served a notice 480 to owner, and a statement that the owner will serve a copy of 481 the notice of termination on each lienor who timely serves a 482 notice to owner after the notice of termination has been 483 recorded. The owner is not required to serve a copy of the 484 notice of termination on any lienor who has executed a waiver 485 and release of lien upon final payment in accordance with s. 486 713.20. 487

(3) An owner may not record a notice of termination at any 488 time after except after completion of construction, or after 489 construction ceases before completion and all lienors have been 490 paid in full or pro rata in accordance with s. 713.06(4). 491

(4) If an owner or a contractor, by fraud or collusion, 492 knowingly makes any fraudulent statement or affidavit in a 493

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 18 of 27 CODING: Words stricken are deletions; words underlined are additions. notice of termination or any accompanying affidavit, the owner 494 and the contractor, or either of them, as the case may be, is 495 liable to any lienor who suffers damages as a result of the 496 filing of the fraudulent notice of termination,; and any such 497 lienor has a right of action for damages occasioned thereby. 498 (5)

(4) A notice of termination must be served before 499 recording on each lienor who has a direct contract with the 500 owner and on each lienor who has timely and properly served a 501 notice to owner in accordance with this part before the 502 recording of the notice of termination. A notice of termination 503 must be recorded in the official records of the county in which 504 the improvement is located.

If properly served before recording 505 in accordance with this subsection, the notice of termination 506 terminates the period of effectiveness of the notice of 507 commencement 30 days after the notice of termination is recorded 508 in the official records is effective to terminate the notice of 509 commencement at the later of 30 days after recording of the 510 notice of termination or a later the date stated in the notice 511 of termination as the date on which the notice of commencement 512 is terminated.

However, if a lienor who began work under the 513 notice of commencement before its termination lacks a direct 514 contract with the owner and timely serves his or her notice to 515 owner after the notice of termination has been recorded, the 516 owner must serve a copy of the notice of termination upon such 517 lienor, and the termination of the notice of commencement as to 518 that lienor is effective 30 days after service of the notice of 519 termination if the notice of termination has been served 520 pursuant to paragraph (1)(

f) on the contractor and on each 521 lienor who has a direct contract with the owner or who has 522

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 19 of 27 CODING: Words stricken are deletions; words underlined are additions. served a notice to owner. 523

Section

Section 713.18, Florida Statutes, is amended to 524 read: 525 713.18 Manner of serving documents notices and other 526 instruments.— 527

(1) Unless otherwise specifically provided by law, service 528 of any document notices, claims of lien, affidavits, 529 assignments, and other instruments permitted or required under 530 this part, s. 255.05, or s. 337.18, or copies thereof when so 531 permitted or required, unless otherwise specifically provided in 532 this part, must be made by one of the following methods: 533 (

a) By hand actual delivery to the person to be served; if 534 a partnership, to one of the partners; if a corporation, to an 535 officer, director, managing agent, or business agent; or, if a 536 limited liability company, to a member or manager. 537 (

b) By common carrier delivery service or by registered, 538 Global Express Guaranteed, or certified mail to the person to be 539 served, with postage or shipping paid by the sender and with 540 evidence of delivery, which may be in an electronic format. 541 (

c) By posting on the site of the improvement if service as 542 provided by paragraph (

a) or paragraph (

b) cannot be 543 accomplished. 544

(2) Notwithstanding subsection (1), service of a notice to 545 owner or a preliminary notice to contractor under this part, s. 546 255.05, or s. 337.18, or s. 713.23 is effective as of the date 547 of mailing and the requirements for service under this

section 548 have been satisfied if: 549 (

a) The notice is mailed by registered, Global Express 550 Guaranteed, or certified mail, with postage prepaid, to the 551

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 20 of 27 CODING: Words stricken are deletions; words underlined are additions. person to be served and addressed as prescribed at any of the 552 addresses set forth in subsection (3); 553 (

b) The notice is mailed within 40 days after the date the 554 lienor first furnishes labor, services, or materials; and 555 (c)1. The person who served the notice maintains a 556 registered or certified mail log that shows the registered or 557 certified mail number issued by the United States Postal 558 Service, the name and address of the person served, and the date 559 stamp of the United States Postal Service confirming the date of 560 mailing; or 561 2.

The person who served the notice maintains electronic 562 tracking records approved or generated by the United States 563 Postal Service containing the postal tracking number, the name 564 and address of the person served, and verification of the date 565 of receipt by the United States Postal Service. 566 (3)(

a) Notwithstanding subsection (1), service of a 567 document under an instrument pursuant to this

section is 568 effective on the date of mailing or shipping, and the 569 requirements for service under this

section have been satisfied, 570 the instrument if the document it: 571 1. Is sent to the last address shown in the notice of 572 commencement or any amendment thereto or, in the absence of a 573 properly indexed notice of commencement that contains the 574 information specified in s. 713.13(1)(b), notice of 575 commencement, to the last address shown in the building permit 576 application, or to the last known address of the person to be 577 served unless otherwise specifically provided in this part, s. 578 255.05, or s. 337.18; and 579 2. Is returned as being “refused,” “moved, not 580

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 21 of 27 CODING: Words stricken are deletions; words underlined are additions. forwardable,” or “unclaimed,” or is otherwise not delivered or 581 deliverable through no fault of the person serving the document 582 item. 583 (

b) If the address shown in the notice of commencement or 584 any amendment thereto to the notice of commencement, or, in the 585 absence of a notice of commencement, in the building permit 586 application, is incomplete for purposes of mailing or delivery, 587 the person serving the document item may complete the address 588 and properly format it according to United States Postal Service 589 addressing standards using information obtained from the 590 property appraiser or another public record without affecting 591 the validity of service under this section. 592

(4) A document notice served by a lienor on one owner or 593 one partner of a partnership owning the real property is deemed 594 served on notice to all owners and partners. 595

Section 9. Subsections (6) and (8) of

section 713.20, 596 Florida Statutes, are amended to read: 597 713.20 Waiver or release of liens.— 598

(6) A person may not require a lienor to furnish a lien 599 waiver or release of lien that is different from the forms in 600 subsection (4) or subsection (5) in exchange for, or to induce 601 payment of, a progress payment or final payment unless the 602 lienor has entered into a direct contract that requires the 603 lienor to furnish a waiver or release that is different from the 604 forms in subsection (4) or subsection (5). 605

(8) Any provisions in a lien waiver or lien release which 606 are that is not related to the waiver or release of a lien or 607 the right to claim a lien as provided in this

section are 608 unenforceable, unless the lienor has otherwise agreed to those 609

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 22 of 27 CODING: Words stricken are deletions; words underlined are additions. provisions in the direct contract substantially similar to the 610 forms in subsections (4) and (5) is enforceable in accordance 611 with the terms of the lien waiver or lien release. 612

Section

Section 713.21, Florida Statutes, is amended to 613 read: 614 713.21 Discharge of lien.—A lien properly perfected under 615 this

chapter may be discharged, or released in whole or in part, 616 by any of the following methods: 617

(1) By entering satisfaction of the lien upon the margin of 618 the record thereof in the clerk’s office when not otherwise 619 prohibited by law. This satisfaction shall be signed by the 620 lienor, the lienor’s agent or attorney and attested by said 621 clerk. Any person who executes a claim of lien has shall have 622 authority to execute a satisfaction in the absence of actual 623 notice of lack of authority to any person relying on the same. 624

(2) By the satisfaction or release of the lienor, duly 625 acknowledged and recorded in the clerk’s office. The 626 satisfaction or release must include the lienor’s notarized 627 signature and set forth the official records’ reference numbers 628 and recording date affixed by the recording office on the 629 subject lien. Any person who executes a claim of lien has shall 630 have authority to execute a satisfaction or release in the 631 absence of actual notice of lack of authority to any person 632 relying on the same. 633

(3) By failure to begin an action to enforce the lien 634 within the time prescribed in this part. 635

(4) By an order of the circuit court of the county where 636 the property is located, as provided in this subsection. Upon 637 filing a complaint therefor by any interested party the clerk 638

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 23 of 27 CODING: Words stricken are deletions; words underlined are additions. shall issue a summons to the lienor to show cause within 20 days 639 why his or her lien should not be enforced by action or vacated 640 and canceled of record. Upon failure of the lienor to show cause 641 why his or her lien should not be enforced or the lienor’s 642 failure to commence such action before the return date of the 643 summons the court shall forthwith order cancellation of the 644 lien. 645

(5) By recording in the clerk’s office the original or a 646 certified copy of a judgment or decree of a court of competent 647 jurisdiction showing a final determination of the action. 648

Section 11. Paragraph (

d) of subsection (1) of

section 649 713.23, Florida Statutes, is amended to read: 650 713.23 Payment bond.— 651 (1) 652 (

d) In addition, a lienor who has not received payment for 653 furnishing his or her labor, services, or materials must, as a 654 condition precedent to recovery under the bond, serve a written 655 notice of nonpayment on to the contractor and a copy of the 656 notice on the surety.

The notice must be under oath and served 657 during the progress of the work or thereafter, but may not be 658 served later than 90 days after the final furnishing of labor, 659 services, or materials by the lienor, or, with respect to rental 660 equipment, later than 90 days after the date the rental 661 equipment was on the job site and available for use. A notice of 662 nonpayment that includes sums for retainage must specify the 663 portion of the amount claimed for retainage.

The required notice 664 satisfies this condition precedent with respect to the payment 665 described in the notice of nonpayment, including unpaid finance 666 charges due under the lienor’s contract, and with respect to any 667

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 24 of 27 CODING: Words stricken are deletions; words underlined are additions. other payments which become due to the lienor after the date of 668 the notice of nonpayment. The time period for serving a notice 669 of nonpayment is shall be measured from the last day of 670 furnishing labor, services, or materials by the lienor and may 671 not be measured by other standards, such as the issuance of a 672 certificate of occupancy or the issuance of a certificate of 673 substantial completion.

The failure of a lienor to receive 674 retainage sums not in excess of 10 percent of the value of 675 labor, services, or materials furnished by the lienor is not 676 considered a nonpayment requiring the service of the notice 677 provided under this paragraph. If the payment bond is not 678 recorded before commencement of construction, the time period 679 for the lienor to serve a notice of nonpayment may at the option 680 of the lienor be calculated from the date specified in this 681

section or the date the lienor is served a copy of the bond. 682 However, the limitation period for commencement of an action on 683 the payment bond as established in paragraph (

e) may not be 684 expanded. The negligent inclusion or omission of any information 685 in the notice of nonpayment that has not prejudiced the 686 contractor or surety does not constitute a default that operates 687 to defeat an otherwise valid bond claim. A lienor who serves a 688 fraudulent notice of nonpayment forfeits his or her rights under 689 the bond.

A notice of nonpayment is fraudulent if the lienor has 690 willfully exaggerated the amount unpaid, willfully included a 691 claim for work not performed or materials not furnished for the 692 subject improvement, or prepared the notice with such willful 693 and gross negligence as to amount to a willful exaggeration. 694 However, a minor mistake or error in a notice of nonpayment, or 695 a good faith dispute as to the amount unpaid, does not 696

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 25 of 27 CODING: Words stricken are deletions; words underlined are additions. constitute a willful exaggeration that operates to defeat an 697 otherwise valid claim against the bond. The service of a 698 fraudulent notice of nonpayment is a complete defense to the 699 lienor’s claim against the bond.

The notice under this paragraph 700 must include the following information, current as of the date 701 of the notice, and must be in substantially the following form: 702 703 NOTICE OF NONPAYMENT 704 705 To ...(name of contractor and address)... 706 707 ...(name of surety and address)... 708 709 The undersigned lienor notifies you that: 710 1. The lienor has furnished ...(describe labor, services, 711 or materials)... for the improvement of the real property 712 identified as ...(property description).... The corresponding 713 amount unpaid to date is $...., of which $.... is unpaid 714 retainage. 715 2.

The lienor has been paid to date the amount of $.... for 716 previously furnishing ...(describe labor, services, or 717 materials)... for this improvement. 718 3. The lienor expects to furnish ...(describe labor, 719 services, or materials)... for this improvement in the future 720 (if known), and the corresponding amount expected to become due 721 is $.... (if known). 722 723 I declare that I have read the foregoing Notice of Nonpayment 724 and that the facts stated in it are true to the best of my 725

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 26 of 27 CODING: Words stricken are deletions; words underlined are additions. knowledge and belief. 726 727 DATED on ............, ......... 728 729 ...(signature and address of lienor)... 730 731 STATE OF FLORIDA 732 COUNTY OF........ 733 734 The foregoing instrument was sworn to (or affirmed) and 735 subscribed before me by means of ☐ physical presence or sworn to 736 (or affirmed) by ☐ online notarization, this .... day of ...., 737 ...(year)..., by ...(name of signatory).... 738 ...(Signature of Notary Public - State of Florida)... 739 ...(Print, Type, or Stamp Commissioned Name of Notary 740 Public)... 741 742 Personally Known ........

OR Produced Identification ........ 743 744 Type of Identification Produced 745

Section 12. Subsections (3) and (5) of

section 713.235, 746 Florida Statutes, are amended to read: 747 713.235 Waivers of right to claim against payment bond; 748 forms.— 749

(3) A person may not require a claimant to furnish a waiver 750 that is different from the forms in subsections (1) and (2) in 751 exchange for, or to induce payment of, a progress payment or 752 final payment unless the claimant has entered into a direct 753 contract that requires the claimant to furnish a waiver that is 754

Florida Senate - 2021 SB 622 8-00207D-21 2021622__ Page 27 of 27 CODING: Words stricken are deletions; words underlined are additions. different from the forms in subsections (1) and (2). 755

(5) Any provisions in a waiver which are that is not 756 related to the waiver of a claim or a right to claim against the 757 payment bond as provided in this

section are unenforceable, 758 unless the claimant has otherwise agreed to those provisions in 759 the claimant’s direct contract substantially similar to the 760 forms in this

section is enforceable in accordance with its 761 terms. 762

Section

Section 713.29, Florida Statutes, is amended to 763 read: 764 713.29 Attorney Attorney’s fees.—In any action brought to 765 enforce a lien, including a lien that has been transferred to 766 security, or to enforce a claim against a bond under this part, 767 the prevailing party is entitled to recover a reasonable fee for 768 the services of her or his attorney for trial and appeal or for 769 arbitration, in an amount to be determined by the court, which 770 fee must be taxed as part of the prevailing party’s costs, as 771 allowed in equitable actions. 772

Section 14. This act shall take effect July 1, 2021. 773