CHAPTER
713 LIENS, GENERALLY
PART I CONSTRUCTION LIENS
713.001
Short Title of Part
713.01 Definitions
713.02 Types of Lienors and Exemptions
713.03 Liens for Professional Services
713.04 Subdivision Improvements
713.05 Liens of Persons in Privity
713.06 Liens of Persons Not in Privity; Proper Payments
713.07 Priority of Liens
713.08 Claim of Lien
713.09 Single Claim of Lien
713.10 Extent of Liens
713.11 Liens for Improving Land in Which the Contracting Party
has no Interest
713.12 Liens for Improving Real Property Under Contract with
Husband or Wife on Property of the Other or of Both
713.13 Notice of Commencement
713.135 Notice of Commencement and Applicability of Lien
713.14 Application of Money to Materials Account
713.15 Repossession of Materials Not Used
713.16 Demand for Copy of Contract and Statements of Account;
Form
713.165 Request for List of Subcontractors and Suppliers
713.17 Materials Not Attachable for Debts of Purchaser
713.18 Manner of Serving Notices and Other Instruments
713.19 Assignment of Lien
713.20 Waiver or Release of Liens
713.21 Discharge of Lien
713.22 Duration of Lien
713.23 Payment Bond
713.24 Transfer of Liens to Security
713.245 Conditional Payment Bond
713.25 Applicability of Ch. 65-456
713.26 Redemption and Sale
713.27 Interplead
713.28 Judgments in Case of Failure to Establish Liens; Personal
and Deficiency Judgments or Decrees
713.29 Attorney’s Fees
713.30 Other Actions Not Barred
713.31 Remedies in Case of Fraud or Collusion
713.32 Insurance Proceeds Liable for Demands
713.33 Disbursing Agent and Others May Rely on Owner’s
Notices
713.345 Moneys Received for Real Property Improvements; Penalty
for Misapplication
713.346 Payment on Construction Contracts
713.3471 Lender Responsibilities With Construction Loans
713.35 Making or Furnishing False Statement
713.36 Effective Date
713.37 Rule of Construction
FLORIDA STATUTES
CHAPTER 713 LIENS, GENERALLY
PART I CONSTRUCTION LIENS
713.001 Short Title of Part
This part may be cited as the “Construction Lien Law.”
713.01 Definitions
As used in this part, the term:
(1) “Architect” means a person or firm that is
authorized to practice architecture pursuant to chapter 481
or a general contractor who provides architectural services
under a design-build contract authorized by s. 481.229(3).
(2) “Claim of lien” means the claim recorded as
provided in s. 713.08.
(3) “Clerk’s office” means the office of
the clerk of the circuit court of the county in which the
real property is located.
(4) “Commencement of the improvement” means the
time of filing for record of the notice of commencement provided
in s. 713.13.
(5) “Contract” means an agreement for improving
real property, written or unwritten, express or implied, and
includes extras or change orders.
(6) “Contract price” means the amount agreed upon
by the contracting parties for performing all labor and services
and furnishing all materials covered by their contract and
must be increased or diminished by the price of extras or
change orders, or by any amounts attributable to changes in
the scope of the work or defects in workmanship or materials
or any other breaches of the contract; but no penalty or liquidated
damages between the owner and a contractor diminishes the
contract price as to any other lienor. If no price is agreed
upon by the contracting parties, this term means the value
of all labor, services, or materials covered by their contract,
with any increases and diminutions, as provided in this subsection.
Allowance items are a part of the contract when accepted by
the owner.
(7) “Contractor” means a person other than a materialman
or laborer who enters into a contract with the owner of real
property for improving it, or who takes over from a contractor
as so defined the entire remaining work under such contract.
The term “contractor” includes an architect, landscape
architect, or engineer who improves real property pursuant
to a design-build contract authorized by s. 489.103(16).
(8) “Direct contract” means a contract between
the owner and any other person.
(9) “Engineer” means a person or firm that is
authorized to practice engineering pursuant to chapter 471
or a general contractor who provides engineering services
under a design-build contract authorized by s. 471.003(2)(j).
(10) “Extras or change orders” means labor, services,
or materials for improving real property authorized by the
owner and added to or deleted from labor, services, or materials
covered by a previous contract between the same parties.
(11) “Furnish materials” means supply materials
which are incorporated in the improvement including normal
wastage in construction operations; or specially fabricated
materials for incorporation in the improvement, not including
any design work, submittals, or the like preliminary to actual
fabrication of the materials; or supply materials used for
the construction and not remaining in the improvement, subject
to diminution by the salvage value of such materials; and
includes supplying tools, appliances, or machinery used on
the particular improvement to the extent of the reasonable
rental value for the period of actual use (not determinable
by the contract for rental unless the owner is a party thereto),
but does not include supplying handtools. The delivery of
materials to the site of the improvement is prima facie evidence
of incorporation of such materials in the improvement.
(12) “Improve” means build, erect, place, make,
alter, remove, repair, or demolish any improvement over, upon,
connected with, or beneath the surface of real property, or
excavate any land, or furnish materials for any of these purposes,
or perform any labor or services upon the improvements, including
the furnishing of carpet or rugs or appliances that are permanently
affixed to the real property and final construction cleanup
to prepare a structure for occupancy; or perform any labor
or services or furnish any materials in grading, seeding,
sodding, or planting for landscaping purposes, including the
furnishing of trees, shrubs, bushes, or plants that are planted
on the real property, or in equipping any improvement with
fixtures or permanent apparatus.
(13) “Improvement” means any building, structure,
construction, demolition, excavation, landscaping, or any
part thereof existing, built, erected, placed, made, or done
on land or other real property for its permanent benefit.
(14) “Laborer” means any person other than an
architect, landscape architect, engineer, surveyor and mapper,
and the like who, under properly authorized contract, personally
performs on the site of the improvement labor or services
for improving real property and does not furnish materials
or labor service of others.
(15) “Lender” means any person who loans money
to an owner for construction of an improvement to real property,
who secures that loan by recording a mortgage on the real
property, and who periodically disburses portions of the proceeds
of that loan for the payment of the improvement.
(16) “Lienor” means a person who is:
(a) A contractor;
(b) A subcontractor;
(c) A sub-subcontractor;
(d) A laborer;
(e) A materialman who contracts with the owner, a contractor,
a subcontractor, or a sub-subcontractor; or
(f) A professional lienor under s. 713.03; and who has a lien
or prospective lien upon real property under this part, and
includes his successor in interest. No other person may have
a lien under this part.
(17) “Lienor giving notice” means any lienor,
except a contractor, who has duly and timely served a notice
to the owner and, if required, to the contractor and subcontractor,
as provided in s. 713.06(2).
(18) “Materialman” means any person who furnishes
materials under contract to the owner, contractor, subcontractor,
or sub-subcontractor on the site of the improvement or for
direct delivery to the site of the improvement or, for specially
fabricated materials, off the site of the improvement for
the particular improvement, and who performs no labor in the
installation thereof.
(19) “Notice by lienor” means the notice to owner
served as provided in s. 713.06(2).
(20) “Notice of commencement” means the notice
recorded as provided in s. 713.13.
(21) “Owner” means a person who is the owner of
any legal or equitable interest in real property, which interest
can be sold by legal process, and who enters into a contract
for the improvement of the real property. The term includes
a condominium association pursuant to chapter 718 as to improvements
made to association property or common elements. The term
does not include any political subdivision, agency, or department
of the state, a municipality, or other governmental entity.
(22) “Perform” or “furnish” when used
in connection with the words “labor” or “services”
or “materials” means performance or furnishing
by the lienor or by another for him.
(23) “Post” or “posting” means placing
the document referred to on the site of the improvement in
a conspicuous place at the front of the site and in a manner
that protects the document from the weather.
(24) “Real property” means the land that is improved
and the improvements thereon, including fixtures, except any
such property owned by the state or any county, municipality,
school board, or governmental agency, commission, or political
subdivision.
(25) “Site of the improvement” means the real
property which is being improved and on which labor or services
are performed or materials furnished in furtherance of the
operations of improving such real property. In cases of removal,
without demolition and under contract, of an improvement from
one lot, parcel, or tract of land to another, this term means
the real property to which the improvement is removed.
(26) “Subcontractor” means a person other than
a materialman or laborer who enters into a contract with a
contractor for the performance of any part of such contractor’s
contract.
(27) “Sub-subcontractor” means a person other
than a materialman or laborer who enters into a contract with
a subcontractor for the performance of any part of such subcontractor’s
contract.
713.02
Types of Lienors and Exemptions
(1)
Persons performing the services described in s. 713.03 shall
have rights to a lien on real property as provided in that
section.
(2) Persons performing services or furnishing materials for
subdivision improvements as described in s. 713.04 shall have
rights to a lien on real property as provided in that section.
(3) Persons who are in privity with an owner and who perform
labor or services or furnish materials constituting an improvement
or part thereof shall have rights to a lien on real property
as provided in s. 713.05.
(4) Persons who are not in privity with an owner and who perform
labor or services or furnish materials constituting a part
of an improvement under the direct contract of another person
shall have rights to a lien on real property as provided in
s. 713.06.
(5) Any improvement for which the direct contract price is
$2,500 or less shall be exempt from all other provisions of
this part except the provisions of s. 713.05.
(6) In any direct contract the owner may require the contractor
to furnish a payment bond as provided in s. 713.23, and upon
receipt of the bond the owner shall be exempt from the other
provisions of this part as to that direct contract, but this
does not exempt the owner from the lien of the contractor
who furnishes the bond. If the bond is provided, it shall
secure all liens subsequently accruing under this part as
provided in s. 713.23.
(7) Notwithstanding any other provision of this part, no lien
shall exist in favor of any contractor, subcontractor, or
sub-subcontractor unless such contractor, subcontractor, or
sub-subcontractor is licensed as a contractor pursuant to
the laws of the jurisdiction within which he is doing business.
713.03 Liens for Professional Services
(1) Any person who performs services as architect,
landscape architect, interior designer, engineer, or surveyor
and mapper, subject to compliance with and the limitations
imposed by this part, has a lien on the real property improved
for any money that is owing to him for his services used in
connection with improving the real property or for his services
in supervising any portion of the work of improving the real
property, rendered in accordance with his contract and with
the direct contract.
(2) Any architect, landscape architect, interior designer,
engineer, or surveyor and mapper who has a direct contract
and who in the practice of his profession shall perform services,
by himself or others, in connection with a specific parcel
of real property and subject to said compliances and limitations,
shall have a lien upon such real property for the money owing
to him for his professional services, regardless of whether
such real property is actually improved.
(3) No liens under this section shall be acquired until a
claim of lien is recorded. No lienor under this section shall
be required to serve a notice to owner as provided in s. 713.06(2)
or an affidavit concerning unpaid lienors as provided in s.
713.06(3).
713.04
Subdivision Improvements
(1) Any lienor who, regardless of privity, performs
services or furnishes material to real property for the purpose
of making it suitable as the site for the construction of
an improvement or improvements shall be entitled to a lien
on the real property for any money that is owed to him for
his services or materials furnished in accordance with his
contract and the direct contract. The total amount of liens
allowed under this section shall not exceed the amount of
the direct contract under which the lienor furnishes labor,
materials, or services. The work of making real property suitable
as the site of an improvement shall include but shall not
be limited to the grading, leveling, excavating, and filling
of land, including the furnishing of fill soil; the grading
and paving of streets, curbs, and sidewalks; the construction
of ditches and other area drainage facilities; the laying
of pipes and conduits for water, gas, electric, sewage, and
drainage purposes; and the construction of canals and shall
also include the altering, repairing, and redoing of all these
things. When the services or materials are placed on land
dedicated to public use and are furnished under contract with
the owner of the abutting land, the cost of the services and
materials, if unpaid, may be the basis for a lien upon the
abutting land. When the services or materials are placed upon
land under contract with the owner of the land who subsequently
dedicates parts of the land to public use, the person furnishing
the services or materials placed upon the dedicated land shall
be entitled to a lien upon the land abutting the dedicated
land for the unpaid cost of the services and materials placed
upon the dedicated land, or in the case of improvements that
serve or benefit real property that is divided by the improvements,
to a lien upon each abutting part for the equitable part of
the full amount due and owing. If the part of the cost to
be borne by each parcel of the land subject to the same lien
is not specified in the contract, it shall be prorated equitably
among the parcels served or benefited. No lien under this
section shall be acquired until a claim of lien is recorded.
No notice of commencement shall be filed for liens under this
section. No lienor shall be required to serve a notice to owner for liens under this section.
(2) If a lienor under this section who is not in privity with
the owner serves a notice on the owner in accordance with
the provisions of s. 713.06(2), payment of lienors by the
owner under this section shall be governed by s. 713.06(3)(c),
(d), (e), (f), (g), (h), and (4).
(3) The owner shall not pay any money on account of a direct
contract before actual furnishing of labor and services or
materials for subdivision improvements. The payment shall
not qualify as a proper payment under this section.
713.05 Liens of Persons in Privity
A materialman or laborer, either of whom is in privity
with the owner, or a contractor who complies with the provisions
of this part shall, subject to the limitations thereof, have
a lien on the real property improved for any money that is
owed to him for labor, services, materials, or other items
required by, or furnished in accordance with, the direct contract
and for unpaid finance charges due under the lienor’s
contract. A materialman or laborer, in privity with the owner,
or a contractor shall also have a lien on the owner’s
real property for any money that is owed to him for labor,
services, or materials furnished to improve public property
if the improvements to the public property are a condition
of the permit to improve the owner’s real property.
No lien under this section shall be acquired until a claim
of lien is recorded. A lienor who, as a subcontractor, sub-subcontractor,
laborer, or materialman not in privity with the owner, commences
to furnish labor, services, or material to an improvement
and who thereafter becomes in privity with the owner shall
have a lien for any money that is owed to him for the labor,
services, or materials furnished after he becomes in privity
with the owner. A lienor may record one claim of lien to cover
both his work done in privity with the owner and not in privity
with the owner. No lienor under this section shall be required
to serve a notice to owner as provided in s. 713.06(2). A
lienor, except a laborer or materialman, who is in privity
with the owner and claims a lien under this section shall
furnish the contractor’s affidavit required in s. 713.06(3)(d).
A contractor may claim a lien for any labor, services, or
materials furnished by another lienor for which he is obligated
to pay the lienor, regardless of the right of the lienor to
claim a lien; but, if the lienor claims a valid lien, the
contractor shall not recover the amount of the lien recovered
by the lienor, and the amount of the contractor’s claim
of lien may be reduced accordingly by court order. No person
shall have a lien under this section except those lienors
specified in it, as their designations are defined in s. 713.01.
713.06 Liens of Persons Not in Privity;
Proper Payments
(1) A materialman or laborer, either of whom is not
in privity with the owner, or a subcontractor or sub-subcontractor
who complies with the provisions of this part and is subject
to the limitations thereof, has a lien on the real property
improved for any money that is owed to him for labor, services,
or materials furnished in accordance with his contract and
with the direct contract and for any unpaid finance charges
due under the lienor’s contract. A materialman or laborer,
either of whom is not in privity with the owner, or a subcontractor
or sub-subcontractor who complies with the provisions of this
part and is subject to the limitations thereof, also has a
lien on the owner’s real property for labor, services,
or materials furnished to improve public property if the improvement
of the public property is furnished in accordance with his
contract and with the direct contract. The total amount of
all liens allowed under this part for furnishing labor, services,
or material covered by any certain direct contract must not
exceed the amount of the contract price fixed by the direct
contract except as provided in subsection (3). No person may
have a lien under this section except those lienors specified
in it, as their designations are defined in s. 713.01.
(2) (a) All lienors under this section, except laborers, as
a prerequisite to perfecting a lien under this chapter and
recording a claim of lien, must serve a notice on the owner
setting forth the lienor’s name and address, a description
sufficient for identification of the real property, and the
nature of the services or materials furnished or to be furnished.
A sub-subcontractor or a materialman to a subcontractor must
serve a copy of the notice on the contractor as a prerequisite
to perfecting a lien under this chapter and recording a claim
of lien. A materialman to a sub-subcontractor must serve a
copy of the notice to owner on the contractor as a prerequisite
to perfecting a lien under this chapter and recording a claim
of lien. A materialman to a sub-subcontractor shall serve
the notice to owner on the subcontractor if the materialman
knows the name and address of the subcontractor. The notice
must be served before commencing, or not later than 45 days
after commencing, to furnish his services or materials, but,
in any event, before the date of the owner’s disbursement
of the final payment after the contractor has furnished the
affidavit under subparagraph (3)(d)1. The notice must be served
regardless of the method of payments by the owner, whether
proper or improper, and does not give to the lienor serving
the notice any priority over other lienors in the same category;
and the failure to serve the notice, or to timely serve it,
is a complete defense to enforcement of a lien by any person.
The serving of the notice does not dispense with recording
the claim of lien. The notice is not a lien, cloud, or encumbrance
on the real property nor actual or constructive notice of
any of them.
(b) If the owner, in his notice of commencement, has designated
a person in addition to himself to receive a copy of such
lienor’s notice, as provided in s. 713.13(1)(b), the
lienor shall mail a copy of his notice to the person so designated.
The failure by the lienor to mail such copy, however, does
not invalidate an otherwise valid lien.
(c) The notice must be in substantially the following form:
WARNING TO OWNER:
UNDER
FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT WE ARE PAID MAY
RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE.
TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN
RELEASE FROM US EVERY TIME YOU PAY YOUR CONTRACTOR. NOTICE
TO OWNER
To
(Owner’s name and address)
The undersigned hereby informs you that he has furnished or
is furnishing services or materials as follows:
(General description of services or materials)
for the improvement of the real property identified as
(property description)
under an order given by ____________.
Florida law prescribes the serving of this notice and restricts
your right to make payments under your contract in accordance
with Section 713.06, Florida Statutes.
IMPORTANT INFORMATION FOR YOUR PROTECTION
Under Florida’s laws, those who work on your property
or provide materials and are not paid have a right to enforce
their claim for payment against your property. This claim
is known as a construction lien. If your contractor fails
to pay subcontractors or material suppliers or neglects to
make other legally required payments, the people who are owed
money may look to your property for payment, EVEN IF YOU HAVE
PAID YOUR CONTRACTOR IN FULL.
PROTECT YOURSELF: RECOGNIZE that this Notice to Owner may
result in a lien against your property unless all those supplying
a Notice to Owner have been paid. LEARN more about the Construction
Lien Law, Chapter 713, Part I, Florida Statutes, and the meaning
of this notice by contacting an attorney or the Florida Department
of Business and Professional Regulation.
(Lienor’s Signature)
(Lienor’s Name)
(Lienor’s Address)
Copies to:
(Those persons listed in Section 713.06(2)(a) and (b), Florida
Statutes)
(d) A notice to an owner served on a lender must be in writing
and delivered to the lender by certified mail, return receipt
requested, to the persons designated, if any, and to the place
and address designated in the notice of commencement. Any
lender who, after receiving a notice provided under this subsection,
pays a contractor on behalf of the owner for an improvement
shall make proper payments as provided in paragraph (3)(c)
as to each such notice received by the lender. The failure
of a lender to comply with this paragraph renders the lender
liable to the owner for all damages sustained by the owner
as a result of that failure. This paragraph does not give
any person other than an owner a claim or right of action
against a lender for the failure of the lender to comply with
this paragraph. Further, this paragraph does not prohibit
a lender from disbursing construction funds at any time directly
to the owner, in which event the lender has no obligation
to make proper payments under this paragraph.
(e) A lienor, in the absence of a recorded notice of commencement,
may rely on the information contained in the building permit
application to serve the notice prescribed in paragraphs (a),
(b), and (c).
(f) If a lienor has substantially complied with the provisions
of paragraphs (a), (b), and (c), errors or omissions do not
prevent the enforcement of a claim against a person who has
not been adversely affected by such omission or error. However,
a lienor must strictly comply with the time requirements of
paragraph (a).
(3) The owner may make proper payments on the direct contract
as to lienors under this section, in the following manner:
(a) If the description of the property in the notice prescribed
by s. 713.13 is incorrect and the error adversely affects
any lienor, payments made on the direct contract shall be
held improperly paid to that lienor; but this does not apply
to clerical errors when the description listed covers the
property where the improvements are.
(b) The owner may pay to any laborers the whole or any part
of the amounts that shall then be due and payable to them
respectively for labor or services performed by them and covered
by the direct contract, and shall deduct the same from the
balance due the contractor under a direct contract.
(c) When any payment becomes due to the contractor on the
direct contract, except the final payment: 1. The owner shall
pay or cause to be paid, within the limitations imposed by
subparagraph 2., the sum then due to each lienor giving notice
prior to the time of the payment. The owner may require, and,
in such event, the contractor shall furnish as a prerequisite
to requiring payment to himself, an affidavit as prescribed
in subparagraph (d)1., on any payment made, or to be made,
on a direct contract, but the furnishing of the affidavit
shall not relieve the owner of his responsibility to pay or
cause to be paid all lienors giving notice. The owner shall
be under no obligation to any lienor, except laborers, from
whom he has not received a notice to owner at the time of
making a payment. 2. When the payment due is insufficient
to pay all bills of lienors giving notice, the owner shall
prorate the amount then due under the direct contract among
the lienors giving notice pro rata in the manner prescribed
in subsection (4). Lienors receiving money shall execute partial
releases, as provided in s. 713.20(2), to the extent of the
payment received. 3. If any affidavit permitted hereunder
recites any outstanding bills for labor, services, or materials,
the owner may pay the bills in full direct to the person or
firm to which they are due if the balance due on the direct
contract at the time the affidavit is given is sufficient
to pay the bills and shall deduct the amounts so paid from
the balance of payment due the contractor. This subparagraph
shall not create any obligation of the owner to pay any person
who is not a lienor giving notice. 4. No person furnishing
labor or material, or both, who is required to serve a notice
under paragraph (2)(a) and who did not serve the notice and
whose time for service has expired shall be entitled to be
paid by the owner because he is listed in an affidavit furnished
by the contractor under subparagraph (c)1. 5. If the contract
is terminated before completion, the contractor shall comply
with subparagraph (d)1.
(d) When the final payment under a direct contract becomes
due the contractor: 1. The contractor shall give to the owner
an affidavit stating, if that be the fact, that all lienors
under his direct contract have been paid in full or, if the
fact be otherwise, showing the name of each lienor who has
not been paid in full and the amount due or to become due
each for labor, services, or materials furnished. The contractor
shall have no lien or right of action against the owner for
labor, services, or materials furnished under the direct contract
while in default for not giving the owner the affidavit. The
contractor shall execute the affidavit and deliver it to the
owner at least 5 days before instituting an action as a prerequisite
to the institution of any action to enforce his lien under
this chapter, even if the final payment has not become due
because the contract is terminated for a reason other than
completion and regardless of whether the contractor has any
lienors working under him or not. 2. If the contractor’s
affidavit required in this subsection recites any outstanding
bills for labor, services, or materials, the owner may, after
giving the contractor at least 10 days’ written notice,
pay such bills in full direct to the person or firm to which
they are due, if the balance due on a direct contract at the
time the affidavit is given is sufficient to pay them and
lienors giving notice, and shall deduct the amounts so paid
from the balance due the contractor. Lienors listed in said
affidavit not giving notice, whose 45-day notice time has
not expired, shall be paid in full or pro rata, as appropriate,
from any balance then remaining due the contractor; but no
lienor whose notice time has expired shall be paid by the
owner or by any other person except the person with whom that
lienor has a contract. 3. If the balance due is not sufficient
to pay in full all lienors listed in the affidavit and entitled
to payment from the owner under this part and other lienors
giving notice, the owner shall pay no money to anyone until
such time as the contractor has furnished him with the difference;
however, if the contractor fails to furnish the difference
within 10 days from delivery of the affidavit or notice from
the owner to the contractor to furnish the affidavit, the
owner shall determine the amount due each lienor and shall
disburse to them the amounts due from him on a direct contract
in accordance with the procedure established by subsection
(4). 4. The owner shall have the right to rely on the contractor’s
affidavit given under this paragraph in making the final payment,
unless there are lienors giving notice who are not listed
in the affidavit. If there are lienors giving notice who are
not so listed, the owner may pay such lienors and any persons
listed in the affidavit that are entitled to be paid by the
owner under subparagraph (d)2. and shall thereupon be discharged
of any further responsibility under the direct contract, except
for any balance that may be due to the contractor. 5. The
owner shall retain the final payment due under the direct
contract that shall not be disbursed until the contractor’s
affidavit under subparagraph (d)1. has been furnished to the
owner. 6. When final payment has become due to the contractor
and the owner fails to withhold as required by subparagraph
(d)5., the property improved shall be subject to the full
amount of all valid liens of which the owner has notice at
the time the contractor furnishes his affidavit.
(e) If the improvement is abandoned before completion, the
owner shall determine the amount due each lienor giving notice
and shall pay the same in full or prorate in the same manner
as provided in subsection (4).
(f) No contractor shall have any right to require the owner
to pay any money to him under a direct contract if such money
cannot be properly paid by the owner to the contractor in
accordance with this section.
(g) Except with written consent of the contractor, before
paying any money directly to any lienor except the contractor
or any laborer, the owner shall give the contractor at least
10 days’ written notice of his intention to do so, and
the amount he proposes to pay each lienor.
(h) When the owner has properly retained all sums required
in this section to be retained but has otherwise made improper
payments, the owner’s real property shall be liable
to all laborers, subcontractors, sub-subcontractors, and materialmen
complying with this chapter only to the extent of the retentions
and the improper payments, notwithstanding the other provisions
of this subsection. Any money paid by the owner on a direct
contract, the payment of which is proved to have caused no
detriment to any certain lienor, shall be held properly paid
as to the lienor, and if any of the money shall be held not
properly paid as to any other lienors, the entire benefit
of its being held not properly paid as to them shall go to
the lienors.
(4) (a) In determining the amounts for which liens between
lienors claiming under a direct contract shall be paid by
the owner or allowed by the court within the total amount
fixed by the direct contract and under the provisions of this
section, the owner or court shall pay or allow such liens
in the following order: 1. Liens of all laborers. 2. Liens
of all persons other than the contractor. 3. Lien of the contractor.
(b) Should the total amount for which liens under such direct
contract may be allowed be less than the total amount of liens
under such contract in all classes above mentioned, all liens
in a class shall be allowed for their full amounts before
any liens shall be allowed to any subsequent class. Should
the amount applicable to the liens of any single class be
insufficient to permit all liens within that class to be allowed
for their full amounts, each lien shall be allowed for its
pro rata share of the total amount applicable to liens of
that class; but if the same labor, services, or materials
shall be covered by liens of more than one class, such labor,
services, or materials shall be allowed only in the earliest
class by which they shall be covered; and also if the same
labor, services, or materials shall be covered by liens of
two or more lienors of the same class, such labor, services,
or materials shall be allowed only in the lien of the lienor
farthest removed from the contractor. This section shall not
be construed to affect the priority of liens derived under
separate direct contracts.
713.07 Priority of Liens
(1) Liens under ss. 713.03 and 713.04 shall attach
at the time of recordation of the claim of lien and shall
take priority as of that time.
(2) Liens under ss. 713.05 and 713.06 shall attach and take
priority as of the time of recordation of the notice of commencement,
but in the event notice of commencement is not filed, then
such liens shall attach and take priority as of the time the
claim of lien is recorded.
(3) All such liens shall have priority over any conveyance,
encumbrance or demand not recorded against the real property
prior to the time such lien attached as provided herein, but
any conveyance, encumbrance or demand recorded prior to the
time such lien attaches and any proceeds thereof, regardless
of when disbursed, shall have priority over such liens.
(4) If construction ceases before completion and the owner
desires to recommence construction, he may pay all lienors
in full or pro rata in accordance with s. 713.06(4) prior
to recommencement in which event all liens for the recommenced
construction shall take priority from such recommencement;
or the owner may record an affidavit in the clerk’s
office stating his intention to recommence construction and
that all lienors giving notice have been paid in full except
those listed therein as not having been so paid in which event
30 days after such recording, the rights of any person acquiring
any interest, lien or encumbrance on said property or of any
lienor on the recommenced construction shall be paramount
to any lien on the prior construction unless such prior lienor
records a claim of lien within said 30-day period. A copy
of said affidavit shall be served on each lienor named therein.
Before recommencing, the owner shall record and post a notice
of commencement for the recommenced construction, as provided
in s. 713.13.
713.08
Claim of Lien
(1) For the purpose of perfecting his lien under this
part, every lienor, including laborers and persons in privity,
shall record a claim of lien which shall state:
(a) The name of the lienor and the address where notices or
process under this part may be served on the lienor.
(b) The name of the person with whom the lienor contracted
or by whom he was employed.
(c) The labor, services, or materials furnished and the contract
price or value thereof. Materials specially fabricated at
a place other than the site of the improvement for incorporation
in the improvement but not so incorporated and the contract
price or value thereof shall be separately stated in the claim
of lien.
(d) A description of the real property sufficient for identification.
(e) The name of the owner.
(f) The time when the first and the last item of labor or
service or materials was furnished.
(g) The amount unpaid the lienor for such labor or services
or materials and for unpaid finance charges due under the
lienor’s contract.
(h) If the lien is claimed by a person not in privity with
the owner, the date and method of service of the notice to
owner. If the lien is claimed by a person not in privity with
the contractor or subcontractor, the date and method of service
of the copy of the notice on the contractor or subcontractor.
(2) The claim of lien shall be signed and verified by the
lienor or his agent acquainted with the facts stated therein.
(3) The claim of lien shall be sufficient if it is in substantially
the following form: CLAIM OF LIEN State of County of ____________
Before me, the undersigned notary public, personally appeared
____________, who was duly sworn and says that he is (the
lienor herein) (the agent of the lienor herein), whose address
is ____________; and that in accordance with a contract with
____________, lienor furnished labor, services, or materials
consisting of on the following described real property in
County, Florida: (Legal description of real property) owned
by of a total value of $____________, of which there remains
unpaid $____________, and furnished the first of the items
on ____________, 19__, and the last of the items on ____________,
19__; and (if the lien is claimed by one not in privity with
the owner) that the lienor served his notice to owner on ____________,
19__, by ____________; and (if required) that the lienor served
copies of the notice on the contractor on ____________, 19__,
by and on the subcontractor, ____________, on ____________,
19__, by ____________________ .
(Signature)
Sworn to and subscribed before me this day of, 19__.
(Notary Public)
My commission expires:
(4) (a) The omission of any of the foregoing details or errors
in such claim of lien shall not, within the discretion of
the trial court, prevent the enforcement of such lien as against
one who has not been adversely affected by such omission or
error.
(b) Any claim of lien recorded as provided in this part may
be amended at any time during the period allowed for recording
such claim of lien, provided that such amendment shall not
cause any person to suffer any detriment by having acted in
good faith in reliance upon such claim of lien as originally
recorded. Any amendment of the claim of lien shall be recorded
in the same manner as provided for recording the original
claim of lien.
(c) Failure to serve any claim of lien in the manner provided
in s. 713.18 before recording or within 15 days after recording
shall render the claim of lien voidable to the extent that
the failure or delay is shown to have been prejudicial to
any person entitled to rely on the service.
(5) The claim of lien may be recorded at any time during the
progress of the work or thereafter but not later than 90 days
after the final furnishing of the labor or services or materials
by the lienor; or, with respect to rental equipment, within
90 days after the date that the rental equipment was last
on the job site available for use; provided if the original
contractor defaults or the contract is terminated under s.
713.07(4), no claim for a lien attaching prior to such default
shall be recorded after 90 days from the date of such default
or 90 days after the final performance of labor or services
or furnishing of materials, whichever occurs first. The claim
of lien shall be recorded in the clerk’s office. If
such real property is situated in two or more counties, the
claim of lien shall be recorded in the clerk’s office
in each of such counties. The recording of the claim of lien
shall be constructive notice to all persons of the contents
and effect of such claim. The validity of the lien and the
right to record a claim therefore shall not be affected by
the insolvency, bankruptcy, or death of the owner before the
claim of lien is recorded.
713.09
Single Claim of Lien
A lienor is required to record only one claim of lien
covering his entire demand against the real property when
the amount demanded is for labor or services or material furnished
for more than one improvement under the same direct contract.
The single claim of lien is sufficient even though the improvement
is for one or more improvements located on separate lots,
parcels, or tracts of land. If materials to be used on one
or more improvements on separate lots, parcels, or tracts
of land under one direct contract are delivered by a lienor
to a place designated by the person with whom the materialman
contracted, other than the site of the improvement, the delivery
to the place designated is prima facie evidence of delivery
to the site of the improvement and incorporation in the improvement.
The single claim of lien may be limited to a part of multiple
lots, parcels, or tracts of land and their improvements or
may cover all of the lots, parcels, or tracts of land and
improvements. In each claim of lien under this section, the
owner under the direct contract must be the same person for
all lots, parcels, or tracts of land against which a single
claim of lien is recorded.
713.10
Extent of Liens
Except as provided in s. 713.12, a lien under this
part shall extend to, and only to, the right, title, and interest
of the person who contracts for the improvement as such right,
title, and interest exists at the commencement of the improvement
or is thereafter acquired in the real property. When an improvement
is made by a lessee in accordance with an agreement between
such lessee and his lessor, the lien shall extend also to
the interest of such lessor. When the lease expressly provides
that the interest of the lessor shall not be subject to liens
for improvements made by the lessee, the lessee shall notify
the contractor making any such improvements of such provision
or provisions in the lease, and the knowing or willful failure
of the lessee to provide such notice to the contractor shall
render the contract between the lessee and the contractor
voidable at the option of the contractor. The interest of
the lessor shall not be subject to liens for improvements
made by the lessee when:
(1) The lease or a short form thereof is recorded in the clerk’s
office and the terms of the lease expressly prohibit such
liability; or
(2) All of the leases entered into by a lessor for the rental
of premises on a parcel of land prohibit such liability and
a notice which sets forth the following is recorded by the
lessor in the public records of the county in which the parcel
of land is located:
(a) The name of the lessor.
(b) The legal description of the parcel of land to which the
notice applies.
(c) The specific language contained in the various leases
prohibiting such liability.
(d) A statement that all leases entered into for premises
on the parcel of land contain the language identified in paragraph
(c).
(3) The lessee is a mobile home owner who is leasing a mobile
home lot in a mobile home park from the lessor.
713.11 Liens for Improving Land in
Which the Contracting Party has no Interest
When the person contracting for improving real property
has no interest as owner in the land, no lien shall attach
to the land, except as provided in s 713.12, but if removal
of such improvement from the land is practicable, the lien
of a lienor shall attach to the improvement on which he has
performed labor or services or for which he has furnished
materials. The court, in the enforcement of such lien, may
order such improvement to be separately sold and the purchaser
may remove it within such reasonable time as the court may
fix. The purchase price for such improvement shall be paid
into court. The owner of the land upon which the improvement
was made may demand that the land be restored substantially
to its condition before the improvement was commenced, in
which case the court shall order its restoration and the reasonable
charge therefore shall be first paid out of such purchase
price and the remainder shall be paid to lienors and other
encumbrancers in accordance with their respective rights.
713.12
Liens for Improving Real Property Under Contract with Husband
or Wife on Property of the Other or of Both
When the contract for improving real property is made
with a husband or wife who is not separated and living apart
from his or her spouse and the property is owned by the other
or by both, the spouse who contracts shall be deemed to be
the agent of the other to the extent of subjecting the right,
title, or interest of the other in said property to liens
under this part unless such other shall, within 10 days after
learning of such contract, give the contractor and record
in the clerk’s office, notice of his or her objection
thereto.
713.13 Notice of Commencement
(1) (a) Except for an improvement that is exempt pursuant
to s. 713.02(5), an owner or his authorized agent before actually
commencing to improve any real property, or recommencing completion
of any improvement after default or abandonment, whether or
not a project has a payment bond complying with s. 713.23,
shall record a notice of commencement in the clerk’s
office and forthwith post either a certified copy thereof
or a notarized statement that the notice of commencement has
been filed for recording along with a copy thereof. The notice
of commencement shall contain the following information: 1.
A description sufficient for identification of the real property
to be improved. The description should include the legal description
of the property and also should include the street address
of the property if available or, if there is no street address
available, such additional information as will describe the
physical location of the real property to be improved. 2.
A general description of the improvement. 3. The name and
address of the owner, his interest in the site of the improvement,
and the name and address of the fee simple titleholder, if
other than such owner. 4. The name and address of the contractor.
5. The name and address of the surety on the payment bond
under s. 713.23, if any, and the amount of such bond. 6. The
name and address of any person making a loan for the construction
of the improvements. 7. The name and address within the state
of a person other than himself who may be designated by the
owner as the person upon whom notices or other documents may
be served under this part; and service upon the person so
designated constitutes service upon the owner.
(b) The owner, at his option, may designate a person in addition
to himself to receive a copy of the lienor’s notice
as provided in s. 713.06(2)(b), and if he does so, the name
and address of such person must be included in the notice
of commencement.
(c) If the contract between the owner and a contractor named
in the notice of commencement expresses a period of time for
completion for the construction of the improvement greater
than 1 year, the notice of commencement must state that it
is effective for a period of 1 year plus any additional period
of time. Any payments made by the owner after the expiration
of the notice of commencement are considered improper payments.
(d) A notice of commencement must be in substantially the
following form:
Permit No.
Tax Folio No.
NOTICE OF COMMENCEMENT
State of County of The undersigned hereby gives notice that
improvement will be made to certain real property, and in
accordance with Chapter 713, Florida Statutes, the following
information is provided in this Notice of Commencement.
1. Description of property: (legal description of the property,
and street address if available)
2. General description of improvement:
3. Owner information: a. Name and address: b. Interest in
property: c. Name and address of fee simple titleholder (if
other than Owner):
4. Contractor: (name and address) a. Phone number: b. Fax
number:(optional, if service by fax is acceptable).
5. Surety a. Name and address: b. Phone number: c. Fax number:(optional,
if service by fax is acceptable). d. Amount of bond: $____.
6. Lender: (name and address) a. Phone number: b. Fax number:(optional,
if service by fax is acceptable).
7. Persons within the State of Florida designated by Owner
upon whom notices or other documents may be served as provided
by Section 713.13(1)(a)7., Florida Statutes: (name
and address) a. Phone number: b. Fax number:(optional, if
service by fax is acceptable).
8. In addition to himself, Owner designates of to receive
a copy of the Lienor’s Notice as provided in Section
713.13(1)(b), Florida Statutes. a. Phone number: b. Fax number:(optional,
if service by fax is acceptable).
9. Expiration date of notice of commencement (the expiration
date is 1 year from the date of recording unless a different
date is specified).
(Signature of Owner)
Sworn to and subscribed before me this day of ____________,
19__.
(Notary Public)
My Commission Expires:
(e) A copy of any bond must be attached at the time of recordation
of the notice of commencement. The failure to attach a copy
of the bond to the notice of commencement when the notice
is recorded negates the exemption provided in s. 713.02(6).
However, if such a bond exists but is not recorded, the bond
may be used as a transfer bond pursuant to s. 713.24.
(f) The giving of a notice of commencement is effective upon
the filing of the notice in the clerk’s office.
(g) The owner must sign the notice of commencement and no
one else may be permitted to sign in his stead.
(2) If the improvement described in the notice of commencement
is not actually commenced within 90 days after the recording
thereof, such notice is void and of no further effect.
(3) The recording of a notice of commencement does not constitute
a lien, cloud, or encumbrance on real property, but gives
constructive notice that claims of lien under this part may
be recorded and may take priority as provided in s. 713.07.
The posting of a copy does not constitute a lien, cloud, or
encumbrance on real property, nor actual or constructive notice
of any of them.
(4) This section does not apply to an owner who is constructing
improvements described in s. 713.04.
(5) Unless otherwise provided in the notice of commencement
or a new or amended notice of commencement, a notice of commencement
is not effectual in law or equity against a conveyance, transfer,
or mortgage of or lien on the real property described in the
notice, or against creditors or subsequent purchasers for
a valuable consideration, after 1 year after the date of recording
the notice of commencement.
(6) A lender must, prior to the disbursement of any construction
funds to the contractor, record the notice of commencement
in the clerk’s office as required by this section; however,
the lender is not required to post a certified copy of the
notice at the construction site. The posting of the notice
at the construction site remains the owner’s obligation.
The failure of a lender to record the notice of commencement
as required by this subsection renders the lender liable to
the owner for all damages sustained by the owner as a result
of the failure. Whenever a lender is required to record a
notice of commencement, the lender shall designate the lender,
in addition to others, to receive copies of notices to owner.
This subsection does not give any person other than the owner
a claim or right of action against a lender for failure to
record a notice of commencement.
713.135
Notice of Commencement and Applicability of Lien
(1)
When any person applies for a building permit, the authority
issuing such permit shall:
(a) Print on the face of each permit card in no less than
18-point, capitalized, boldfaced type:
“WARNING TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF
COMMENCEMENT MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS
TO YOUR PROPERTY. IF YOU INTEND TO OBTAIN FINANCING, CONSULT
WITH YOUR LENDER OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE
OF COMMENCEMENT.”
(b) Provide the applicant and the owner of the real property
upon which improvements are to be constructed with a printed
statement stating that the right, title, and interest of the
person who has contracted for the improvement may be subject
to attachment under the Construction Lien Law. The Department
of Business and Professional Regulation shall furnish, for
distribution, the statement described in this paragraph, and
the statement must be a summary of the Construction Lien Law
and must include an explanation of the provisions of the Construction
Lien Law relating to the recording, and the posting of copies,
of notices of commencement and a statement encouraging the
owner to record a notice of commencement and post a copy thereof
in accordance with s. 713.13. However, the failure by the
authorities to provide the summary does not subject the issuing
authority to liability.
(c) Inform each applicant who is not the person whose right,
title, and interest is subject to attachment that, as a condition
to the issuance of a building permit, the applicant must promise
in good faith that the statement will be delivered to the
person whose property is subject to attachment.
(d) Furnish to the applicant two or more copies of a form
of notice of commencement conforming with s. 713.13. The applicant
shall file with the issuing authority prior to the first inspection
either a certified copy of the recorded notice of commencement
or a notarized statement that the notice of commencement has
been filed for recording, along with a copy thereof. In the
absence of the filing of a certified copy of the recorded
notice of commencement, the issuing authority shall not perform
or approve subsequent inspections until the applicant files
by mail, facsimile, hand delivery, or any other means such
certified copy with the issuing authority. Nothing herein
shall be interpreted as requiring or encouraging the recording
of a notice of commencement prior to the issuance of a building
permit.
(2) On or before December 31, 1996, each county and each municipality
shall submit an affidavit to the Advisory Council on Intergovernmental
Relations that states whether the county or municipality issues
building permits and, if so, the building official must certify
that the county or municipality is using a building permit
application form that is substantially similar to the form
set forth in subsection (7), and further certify that the
county or municipality has established and is enforcing procedures
to ensure compliance with the requirement to file a certified
copy of the recorded notice of commencement contained in paragraph
(1)(d).
(3) An issuing authority under subsection (1) is not liable
in any civil action for the failure of the person whose property
is subject to attachment to receive or to be delivered a printed
statement stating that the right, title, and interest of the
person who has contracted for the improvement may be subject
to attachment under the Construction Lien Law.
(4) An issuing authority under subsection (1) is not liable
in any civil action for the failure to verify that a certified
copy of the recorded notice of commencement has been filed
in accordance with this section.
(5) The several boards of county commissioners, municipal
councils, or other similar bodies may by ordinance or resolution
establish reasonable fees for furnishing copies of the forms
and the printed statement provided in paragraph (1)(d) in
an amount not to exceed $5 to be paid by the applicant for
each permit in addition to all other costs of the permit;
however, no forms or statement need be furnished to, nor may
such additional fee be obtained from, applicants for permits
in those cases in which the owner of a legal or equitable
interest (including that of ownership of stock of a corporate
landowner) of the real property to be improved is engaged
in the business of construction of buildings for sale to others
and intends to make the improvements authorized by the permit
on the property and upon completion will offer the improved
real property for sale.
(6) In addition to any other information required by the authority
issuing the permit, each building permit application must
contain:
(a) The name and address of the owner of the real property;
(b) The name and address of the contractor;
(c) A description sufficient to identify the real property
to be improved; and
(d) The number or identifying symbol assigned to the building
permit by the issuing authority, which number or symbol must
be affixed to the application by the issuing authority.
(7) In addition to any other information required by the authority
issuing the permit, the building permit application must be
in substantially the following form:
Tax Folio No.
BUILDING PERMIT APPLICATION
Owner’s Name
Owner’s Address
Fee Simple Titleholder’s Name (If other than owner)
Fee Simple Titleholder’s Address (If other than owner)
City State Zip Contractor’s Name
Contractor’s Address City State Zip
Job Name
Job Address City County Legal Description
Bonding Company
Bonding Company Address City State
Architect/Engineer’s Name
Architect/Engineer’s Address Mortgage
Lender’s Name Mortgage
Lender’s Address Application is hereby made to obtain
a permit to do the work and installations as indicated. I
certify that no work or installation has commenced prior to
the issuance of a permit and that all work will be performed
to meet the standards of all laws regulating construction
in this jurisdiction.
I understand that a separate permit must be secured for ELECTRICAL
WORK, PLUMBING, SIGNS, WELLS, POOLS, FURNACES, BOILERS, HEATERS,
TANKS, and AIR CONDITIONERS, etc.
OWNER’S AFFIDAVIT:
I certify that all the foregoing information is accurate and
that all work will be done in compliance with all applicable
laws regulating construction and zoning.
WARNING TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT
MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.
IF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER
OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT.
Signature Owner or Agent Contractor (including contractor)
Date
NOTARY as NOTARY as to Owner or Agent to Contractor
My Commission Expires:
My Commission Expires:
(Certificate of Competency Holder) Contractor’s State
Certification or Registration No.
Contractor’s Certificate of Competency No.
APPLICATION APPROVED BY
Permit Officer
(8) This section applies to every municipality and county
in the state which now has or hereafter may have a system
of issuing building permits for the construction of improvements
or for the alteration or repair of improvements on or to real
property located within the geographic limits of the issuing
authority.
713.14
Application of Money to Materials Account
(1)
Any owner, contractor, subcontractor, or sub-subcontractor,
in making any payment under, or properly applicable to, any
contract to one with whom he has a running account, or with
whom he has more than one contract, or to whom he is otherwise
indebted, shall designate the contract under which the payment
is made or the items of account to which it is to be applied.
If he shall fail to do so or shall make a false designation,
he shall be liable to anyone suffering a loss in consequence
for the amount of the loss.
(2) When a payment for materials is made to a subcontractor,
sub-subcontractor, or materialman, the subcontractor, sub-subcontractor,
or materialman shall demand of the person making the payment
a designation of the account and the items of account to which
the payment is to apply. In any case in which a lien is claimed
for materials furnished by a subcontractor, sub-subcontractor,
or materialman, it is a defense to the claim, to the extent
of the payment made, to prove that a payment made by the owner
to the contractor for the materials has been paid over to
the subcontractor, sub-subcontractor, or materialman, and
to prove also that when such payment was received by such
subcontractor, sub-subcontractor, or materialman he did not
demand a designation of the account and of the items of account
to which the payment was to be applied or, receiving a designation
of its application to the account for the materials, he failed
to apply the payment in accordance therewith. This subsection
is cumulative to any other defenses available to the person
paying the materialman, subcontractor, or sub-subcontractor.
713.15 Repossession of Materials Not
Used
If for any reason the completion of an improvement
is abandoned or though the improvement is completed, materials
delivered are not used therefore, a person who has delivered
materials for the improvement which have not been incorporated
therein and for which he has not received payment may peaceably
repossess and remove such materials or replevy the same and
thereupon he shall have no lien on the real property or improvements
and no right against any persons for the price thereof, but
shall have the same rights in regard to the materials as if
he had never parted with their possession. This right to repossess
and remove or replevy the materials shall not be affected
by their sale, encumbrance, attachment, or transfer from the
site of improvement, except that if the materials have been
so transferred, the right to repossess or replevy them shall
not be effective as against a purchaser or encumbrancer thereof
in good faith whose interest therein is acquired after such
transfer from the site of the improvement or as against a
creditor attaching after such transfer. The right of repossession
and removal given by this section shall extend only to materials
whose purchase price does not exceed the amount remaining
due to the person repossessing but where materials have been
partly paid for, the person delivering them may repossess
them as allowed in this section on refunding the part of the
purchase price which has been paid.
713.16 Demand for Copy of Contract
and Statements of Account; Form
(1) A copy of the contract of a lienor or owner and
a statement of the amount due or to become due if fixed or
ascertainable thereon must be furnished by any party thereto,
upon written demand of an owner or a lienor contracting with
or employed by the other party to such contract. If the owner
or lienor refuses or neglects to furnish such copy of the
contract or such statement, or willfully and falsely states
the amount due or to become due if fixed or ascertainable
under such contract, any person who suffers any detriment
thereby has a cause of action against the person refusing
or neglecting to furnish the same or willfully and falsely
stating the amount due or to become due for his damages sustained
thereby. The information contained in such copy or statement
furnished pursuant to such written demand is binding upon
the owner or lienor furnishing it unless actual notice of
any modification is given to the person demanding the copy
or statement before such person acts in good faith in reliance
on it. The person demanding such documents must pay for the
reproduction thereof; and, if such person fails or refuses
to do so, he is entitled only to inspect such documents at
reasonable times and places.
(2) The owner may serve in writing a demand of any lienor
for a written statement under oath of his account showing
the nature of the labor or services performed and to be performed,
if any, the materials furnished, the materials to be furnished,
if known, the amount paid on account to date, the amount due,
and the amount to become due, if known, as of the date of
the statement by the lienor. Any such demand to a lienor must
be served on the lienor at the address and to the attention
of any person who is designated to receive the demand in the
notice to owner served by such lienor. The failure or refusal
to furnish the statement does not deprive the lienor of his
lien if the demand is not served at the address of the lienor
or directed to the attention of the person designated to receive
the demand in the notice to owner. The failure or refusal
to furnish the statement within 30 days after the demand,
or the furnishing of a false or fraudulent statement, deprives
the person so failing or refusing to furnish such statement
of his lien. If the owner serves more than one demand for
statement of account on a lienor and none of the information
regarding the account has changed since the lienor’s
last response to a demand, the failure or refusal to furnish
such statement does not deprive the lienor of his lien. The
negligent inclusion or omission of any information deprives
the person of his lien to the extent the owner can demonstrate
prejudice from such act or omission by the lienor. The failure
to furnish a response to a demand for statement of account
does not affect the validity of any claim of lien being enforced
through a foreclosure case filed prior to the date the demand
for statement is received by the lienor.
(3) A request for sworn statement of account must be in substantially
the following form:
REQUEST FOR SWORN STATEMENT OF ACCOUNT WARNING:
YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED UNDER
OATH, WITHIN 30 DAYS OR THE FURNISHING OF A FALSE STATEMENT
WILL RESULT IN THE LOSS OF YOUR LIEN.
To: (Lienor’s name and address)
The undersigned hereby demands a written statement under oath
of his account showing the nature of the labor or services
performed and to be performed, if any, the materials furnished,
the materials to be furnished, if known, the amount paid on
account to date, the amount due, and the amount to become
due, if known, as of the date of the statement for the improvement
of real property identified as:
(property description)
(signature and address of owner)
(date of request for sworn statement of account)
(4) When a contractor has furnished a payment bond pursuant
to s. 713.23, he may, when an owner makes any payment to the
contractor or directly to a lienor, serve a written demand
on any other lienor for a written statement under oath of
his account showing the nature of the labor or services performed
and to be performed, if any, the materials furnished, the
materials to be furnished, if known, the amount paid on account
to date, the amount due, and the amount to become due, if
known, as of the date of the statement by the lienor. Any
such demand to a lienor must be served on the lienor at the
address and to the attention of any person who is designated
to receive the demand in the notice to contractor served by
such lienor. The failure or refusal to furnish the statement
does not deprive the lienor of his rights under the bond if
the demand is not served at the address of the lienor or directed
to the attention of the person designated to receive the demand
in the notice to contractor. The failure to furnish the statement
within 30 days after the demand, or the furnishing of a false
or fraudulent statement, deprives the person who fails to
furnish the statement, or who furnishes the false or fraudulent
statement, of his rights under the bond. If the contractor
serves more than one demand for statement of account on a
lienor and none of the information regarding the account has
changed since the lienor’s last response to a demand,
the failure or refusal to furnish such statement does not
deprive the lienor of his rights under the bond. The negligent
inclusion or omission of any information deprives the person
of his rights under the bond to the extent the contractor
can demonstrate prejudice from such act or omission by the
lienor. The failure to furnish a response to a demand for
statement of account does not affect the validity of any claim
on the bond being enforced in a lawsuit filed prior to the
date the demand for statement of account is received by the
lienor.
(5) Any lienor who has filed a claim of lien may make written
demand on the owner for a written statement under oath showing
the amount of all direct contracts; the amount paid by or
on behalf of the owner for all labor, services, and materials
furnished pursuant to the direct contracts; the dates and
amounts paid or to be paid by or on behalf of the owner for
all improvements described in any direct contracts; and the
reasonable estimated costs of completing, according to the
terms and specifications of same, any direct contract under
which construction has ceased. If known, the actual cost of
completion must be provided. Any owner who does not provide
the statement within 30 days after demand, or who provides
a false or fraudulent statement, is not a prevailing party
for purposes of an award of attorney’s fees under s.
713.29. The written demand must include the following warning
in conspicuous type in substantially the following form:
WARNING:
YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT WITHIN 30
DAYS OR THE FURNISHING OF A FALSE STATEMENT WILL RESULT IN
THE LOSS OF YOUR RIGHT TO RECOVER ATTORNEY FEES IN ANY ACTION
TO ENFORCE THE CLAIM OF LIEN OF THE PERSON REQUESTING THIS
STATEMENT.
713.165 Request for List of Subcontractors
and Suppliers
(1) An owner of real property may request from the
contractor a list of all subcontractors and suppliers who
have any contract with the contractor to furnish any material
or to perform any service for the contractor with respect
to the owner’s real property or improvement to the real
property. The request must be in writing and delivered by
registered or certified mail to the address of the contractor
shown in the contract or the recorded notice of commencement.
(2) The contractor must within 10 days after receipt of the
property owner’s written request, furnish to the property
owner or the property owner’s agent a list of the subcontractors
and suppliers who have a contract with the contractor as of
the date the request is received by the contractor. If the
contractor fails to furnish the list, the contractor thereby
forfeits the contractor’s right to assert a lien against
the owner’s property to the extent the owner is prejudiced
by the contractor’s failure to furnish the list or by
any omissions from the list.
(3) A list furnished under this section shall not constitute
a notice to owner.
713.17 Materials Not Attachable for
Debts of Purchaser
Whenever materials have been furnished to improve
real property and payment therefore has not been made or waived,
such materials shall not be subject to attachment, execution,
or other legal process to enforce any debt due by the purchaser
of such materials, except a debt due for the purchase price
thereof, so long as in good faith the same are about to be
applied to improve the real property; but if the owner has
made payment for materials furnished and the materialman has
not received payment therefore, such materials shall not be
subject to attachment, execution, or other legal process to
enforce the debt due for the purchase price.
713.18
Manner of Serving Notices and Other Instruments
(1) Service of notices, claims of lien, affidavits,
assignments, and other instruments permitted or required under
this part, or copies thereof when so permitted or required,
unless otherwise specifically provided in this part, must
be made by one of the following methods:
(a) By actual delivery to the person to be served; or, if
a partnership, to one of the partners; or, if a corporation,
to an officer, director, managing agent, or business agent
thereof.
(b) By mailing the same, postage prepaid, by registered or
certified mail to the person to be served at his last known
address and evidence of delivery. If an instrument served
by this method to the last address shown in the notice of
commencement or any amendment thereto or, in the absence of
a notice of commencement, to the last address shown in the
building permit application is not received, but is returned
by the United States Postal Service as being “refused,”
“moved, not forwardable,” or “unclaimed,”
or is otherwise not delivered or deliverable through no fault
of the person serving the item, then service is effective
as of the date of mailing.
(c) If neither of the foregoing methods can be accomplished,
by posting on the premises.
(2) If the real property is owned by more than one person,
a lienor may serve any notices or other papers under this
part on any one of such owners, and such notice is deemed
notice to all owners.
(3) Service of notices or copies thereof, permitted or required
under this part, may be made by facsimile transmission when
the person being served has listed that person’s facsimile
phone number in the Notice of Commencement. The owner must
be served with the Notice to Owner in the manner specified
in subsection (2) of this section. The lienor’s facsimile
confirmation sheet with the correct facsimile phone number
shall be proof of the date and time the notice was served.
713.19
Assignment of Lien
A lien or prospective lien, except that of a laborer,
may be assigned by the lienor at any time before its discharge.
The assignment may be recorded in the clerk’s office.
713.20 Waiver or Release of Liens
(1) The acceptance by the lienor of an unsecured note for
all or any part of the amount of his demand shall not constitute
a waiver of his lien therefore unless expressly so agreed
in writing, nor shall it in any way affect the period for
filing the notice under s. 713.06(2), or the claim of lien
under s. 713.08.
(2) A right to claim a lien may not be waived in advance.
A lien right may be waived only to the extent of labor, services,
or materials furnished. Any waiver of a right to claim a lien
that is made in advance is unenforceable.
(3) Any person may at any time waive, release, or satisfy
any part of his lien under this part, either as to the amount
due for labor, services, or materials furnished or for labor,
services, or materials furnished through a certain date subject
to exceptions specified at the time of release, or as to any
part or parcel of the real property.
(4) When a lienor is required to execute a waiver or release
of lien in exchange for, or to induce payment of, a progress
payment, the waiver or release may be in substantially the
following form:
WAIVER AND RELEASE OF LIEN UPON PROGRESS PAYMENT
The undersigned lienor, in consideration of the sum of $______________,
hereby waives and releases its lien and right to claim a lien
for labor, services, or materials furnished through (insert
date) to (insert the name of your customer) on
the job of (insert the name of the owner) to the following
property:(description of property)
This waiver and release does not cover any retention or labor,
services, or materials furnished after the date specified.
DATED on ____________, ______19__.
(Lienor)
By: ____________
(5) When a lienor is required to execute a waiver or release
of lien in exchange for, or to induce payment of, the final
payment, the waiver and release may be in substantially the
following form:
WAIVER AND RELEASE OF LIEN UPON FINAL PAYMENT
The
undersigned lienor, in consideration of the final payment
in the amount of $, hereby waives and releases its lien and
right to claim a lien for labor, services, or materials furnished
to (insert the name of your customer) on the job of (insert
the name of the owner) to the following described property:
(description of property)
DATED on ____________, ______19__.
(Lienor)
By:
(6) A person may not require a lienor to furnish a waiver
or release of lien that is different from the forms in subsection
(4) or subsection (5).
(7) A lienor who executes a lien waiver and release in exchange
for a check may condition the waiver and release on payment
of the check.
(8) A lien waiver or lien release that is not substantially
similar to the forms in subsections (4) and (5) is enforceable
in accordance with the terms of the lien waiver or lien release.
713.21
Discharge of Lien
A lien properly perfected under this chapter may be
discharged by any of the following methods:
(1) By entering satisfaction of the lien upon the margin of
the record thereof in the clerk’s office when not otherwise
prohibited by law. This satisfaction shall be signed by the
lienor, his agent or attorney and attested by said clerk.
Any person who executes a claim of lien shall have authority
to execute a satisfaction in the absence of actual notice
of lack of authority to any person relying on the same.
(2) By the satisfaction of the lienor, duly acknowledged and
recorded in the clerk’s office. Any person who executes
a claim of lien shall have authority to execute a satisfaction
in the absence of actual notice of lack of authority to any
person relying on the same.
(3) By failure to begin an action to enforce the lien within
the time prescribed in this part.
(4) By an order of the circuit court of the county where the
property is located, as provided in this subsection. Upon
filing a complaint therefore by any interested party the clerk
shall issue a summons to the lienor to show cause within 20
days why his lien should not be enforced by action or vacated
and canceled of record. Upon failure of the lienor to show
cause why his lien should not be enforced or his failure to
commence such action before the return date of the summons
the court shall forthwith order cancellation of the lien.
(5) By recording in the clerk’s office the original
or a certified copy of a judgment or decree of a court of
competent jurisdiction showing a final determination of the
action.
713.22
Duration of Lien
(1) No lien provided by this part shall continue for
a longer period than 1 year after the claim of lien has been
recorded, unless within that time an action to enforce the
lien is commenced in a court of competent jurisdiction. The
continuation of the lien effected by the commencement of the
action shall not be good against creditors or subsequent purchasers
for a valuable consideration and without notice, unless a
notice of lis pendens is recorded.
(2) An owner or his agent or attorney may elect to shorten
the time prescribed in subsection (1) within which to commence
an action to enforce any claim of lien or claim against a
bond or other security under s. 713.23 or s. 713.24 by recording
in the clerk’s office a notice in substantially the
following form:
NOTICE OF CONTEST OF LIEN To: (Name and address of lienor)
You are notified that the undersigned contests the claim of
lien filed by you on ______________ 19__, and recorded in
Book ____, Page ____, of the public records of County____________,
Florida, and that the time within which you may file suit
to enforce your lien is limited to 60 days from the date of
service of this notice. This ____ day of ______________ 19__.
S igned: ________________________
(Owner or Attorney)
The lien of any lienor upon whom such notice is served and
who fails to institute a suit to enforce his lien within 60
days after service of such notice shall be extinguished automatically.
The clerk shall mail a copy of the notice of contest to the
lien claimant at the address shown in the claim of lien or
most recent amendment thereto and shall certify to such service
on the face of such notice and record the notice. Service
shall be deemed complete upon mailing.
713.23 Payment Bond
(1) (a) The payment bond required to exempt an owner
under this part shall be furnished by the contractor in at
least the amount of the original contract price before commencing
the construction of the improvement under the direct contract,
and a copy of the bond shall be attached to the notice of
commencement when the notice of commencement is recorded.
The bond shall be executed as surety by a surety insurer authorized
to do business in this state and shall be conditioned that
the contractor shall promptly make payments for labor, services,
and material to all lienors under the contractor’s direct
contract. Any form of bond given by a contractor conditioned
to pay for labor, services, and material used to improve real
property shall be deemed to include the condition of this
subsection.
(b) The owner, contractor, or surety shall furnish a true
copy of the bond at the cost of reproduction to any lienor
demanding it. Any person who fails or refuses to furnish the
copy without justifiable cause shall be liable to the lienor
demanding the copy for any damages caused by the refusal or
failure.
(c) Either before beginning or within 45 days after beginning
to furnish labor, materials, or supplies, a lienor who is
not in privity with the contractor, except a laborer, shall
serve the contractor with notice in writing that the lienor
will look to the contractor’s bond for protection on
the work. If a notice of commencement is not recorded, or
a reference to the bond is not given in the notice of commencement,
and in either case if the lienor not in privity with the contractor
is not otherwise notified in writing of the existence of the
bond, the lienor not in privity with the contractor shall
have 45 days from the date the lienor is notified of the existence
of the bond within which to serve the notice. The notice may
be in substantially the following form:
NOTICE TO CONTRACTOR
To (name of contractor)
The undersigned notifies you that he has furnished or is furnishing
(services or materials) for the improvement of the real property
identified as (property description) owned by (owner’s
name and address) under an order given by and that the undersigned
will look to the contractor’s bond for protection on
the work.
(Lienor’s signature and address)
(d) In addition, a lienor is required, as a condition precedent
to recovery under the bond, to serve a written notice of nonpayment
to the contractor and the surety not later than 90 days after
the final furnishing of labor, services, or materials by the
lienor. A written notice satisfies this condition precedent
with respect to the payment described in the notice of nonpayment
and with respect to any other payments which become due to
the lienor after the date of the notice of nonpayment. The
failure of a lienor to receive retainage sums not in excess
of 10 percent of the value of labor, services, or materials
furnished by the lienor is not considered a nonpayment requiring
the service of the notice provided under this paragraph. The
notice under this paragraph may be in substantially the following
form:
NOTICE OF NONPAYMENT
To
(name of contractor and address)
(name of surety and address)
The undersigned notifies you that he has furnished (describe
labor, services, or materials) for the improvement of the
real property identified as (property description). The amount
now due and unpaid is $______.
(signature
and address of lienor)
(e) No action for the labor or materials or supplies may be
instituted or prosecuted against the contractor or surety
unless both notices have been given. No action shall be instituted
or prosecuted against the contractor or against the surety
on the bond under this section after 1 year from the performance
of the labor or completion of delivery of the materials and
supplies.
(f) Any lienor has a direct right of action on the bond against
the surety. A bond must not contain any provisions restricting
the classes of persons protected thereby or the venue of any
proceeding. The surety is not entitled to the defense of pro
tanto discharge as against any lienor because of changes or
modifications in the contract to which the surety is not a
party; but the liability of the surety may not be increased
beyond the penal sum of the bond. A lienor may not waive in
advance his right to bring an action under the bond against
the surety.
(2) The bond shall secure every lien under the direct contract
accruing subsequent to its execution and delivery, except
that of the contractor. Every claim of lien, except that of
the contractor, filed subsequent to execution and delivery
of the bond shall be transferred to it with the same effect
as liens transferred under s. 713.24. Record notice of the
transfer shall be effected by the contractor, or any person
having an interest in the property against which the claim
of lien has been asserted, by recording in the clerk’s
office a notice in substantially the following form:
NOTICE OF BOND
To
(Name and Address of Lienor)
You are notified that the claim of lien filed by you on ____________,
19__, and recorded in Official Records Book at page of the
public records of County, Florida, is secured by a bond, a
copy being attached.
Signed: _________________________
(Name of person recording notice)
The notice shall be verified. The clerk shall mail a copy
of the notice to the lienor at the address shown in the claim
of lien, or the most recent amendment to it; shall certify
to the service on the face of the notice; and shall record
the notice. The clerk shall receive the same fee as prescribed
in s. 713.24(1) for certifying to a transfer of lien.
(3) A payment bond in substantially the following form shall
be sufficient:
PAYMENT BOND BY THIS BOND
We, _____________________________ as Principal, and ____________________________,
a corporation, as Surety, are bound to _____________________________,
herein called Owner, in the sum of $ for the payment of which
we bind ourselves, our heirs, personal representatives, successors,
and assigns, jointly and severally.
THE CONDITION OF THIS BOND is that if Principal: 1. Promptly
makes payments to all lienors supplying labor, material, and
supplies used directly or indirectly by Principal in the prosecution
of the work provided in the contract dated, 19, between Principal
and Owner for construction of, the contract being made a part
of this bond by reference; and 2. Pays Owner all loss, damage,
expenses, costs, and attorney’s fees, including appellate
proceedings, that Owner sustains because of default by Principal
under paragraph 1. of this bond; then this bond is void; otherwise,
it remains in full force. Any changes in or under the contract
documents and compliance or noncompliance with formalities
connected with the contract or with the changes do not affect
Surety’s obligation under this bond DATED on ______________,
19__.
(Principal)
(SEAL)
(Surety’s name)
By
As Attorney in Fact
(4) The provisions of s. 713.24(3) shall apply to bonds under
this section.
713.24 Transfer of Liens to Security
(1) Any lien claimed under this part may be transferred,
by any person having an interest in the real property upon
which the lien is imposed or the contract under which the
lien is claimed, from such real property to other security
by either:
(a) Depositing in the clerk’s office a sum of money,
or
(b) Filing in the clerk’s office a bond executed as
surety by a surety insurer licensed to do business in this
state, either to be in an amount equal to the amount demanded
in such claim of lien, plus interest thereon at the legal
rate for 3 years, plus $500 to apply on any court costs which
may be taxed in any proceeding to enforce said lien. Such
deposit or bond shall be conditioned to pay any judgment or
decree which may be rendered for the satisfaction of the lien
for which such claim of lien was recorded. Upon making such
deposit or filing such bond, the clerk shall make and record
a certificate showing the transfer of the lien from the real
property to the security and shall mail a copy thereof by
registered or certified mail to the lienor named in the claim
of lien so transferred, at the address stated therein. Upon
filing the certificate of transfer, the real property shall
thereupon be released from the lien claimed, and such lien
shall be transferred to said security. The clerk shall be
entitled to a fee for making and serving the certificate,
in the sum of $10. If the transaction involves the transfer
of multiple liens, an additional charge of $5 for each additional
lien shall be charged. For recording the certificate and approving
the bond, the clerk shall receive his usual statutory service
charges as prescribed in s. 28.24. Any number of liens may
be transferred to one such security.
(2) Any excess of the security over the aggregate amount of
any judgments or decrees rendered plus costs actually taxed
shall be repaid to the party filing the same or his successor
in interest. Any deposit of money shall be considered as paid
into court and shall be subject to the provisions of law relative
to payments of money into court and the disposition of same.
(3) Any party having an interest in such security or the property
from which the lien was transferred may at any time, and any
number of times, file a complaint in chancery in the circuit
court of the county where such security is deposited, or file
a motion in a pending action to enforce a lien, for an order
to require additional security, reduction of security, change
or substitution of sureties, payment of discharge thereof,
or any other matter affecting said security.
(4) If no proceeding to enforce a transferred lien shall be
commenced within the time specified in s. 713.22 or if it
appears that the transferred lien has been satisfied of record,
the clerk shall return said security upon request of the person
depositing or filing the same, or the insurer.
713.245 Conditional Payment Bond
(1) Notwithstanding any provisions of ss. 713.23 and 713.24
to the contrary, if the contractor’s written contractual
obligation to pay lienors is expressly conditioned upon and
limited to the payments made by the owner to the contractor,
the duty of the surety to pay lienors will be coextensive
with the duty of the contractor to pay, if the bond contains
on the front page, in at least 10-point type, the statement:
THIS BOND ONLY COVERS CLAIMS OF SUBCONTRACTORS, SUB-SUBCONTRACTORS,
SUPPLIERS, AND LABORERS TO THE EXTENT THE CONTRACTOR HAS BEEN
PAID FOR THE LABOR, SERVICES, OR MATERIALS PROVIDED BY SUCH
PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE
TO OWNER OR FILING A CLAIM OF LIEN ON THIS PROJECT.
(2) Except as specified in this section, all bonds issued
under this section must conform to the requirements of s.
713.23(1)(a), (b), (f), and (4). No action shall be instituted
or prosecuted against the contractor or the surety after 1
year from the date the lien is transferred to the bond.
(3) The owner’s property is not exempt from liens filed
under this part. All lienors must comply with the provisions
of this part to preserve and perfect those lien rights.
(4) Within 90 days after a claim of lien is recorded for labor,
services, or materials for which the contractor has been paid,
the owner or the contractor may record a notice of bond as
specified in s. 713.23(2), together with a copy of the bond
and a sworn statement in substantially the following form:
CERTIFICATE OF PAYMENT TO THE CONTRACTOR
TO:
Lienor (name and address from claim of lien)
Contractor (name and address)
Surety (name and address)
Under penalties of perjury, the undersigned certifies that
the bond recorded with this certificate conforms with s. 713.245,
F.S., that the bond is in full force and effect, and that
the contractor has been paid $__________ for the labor, services,
and materials described in the Claim of Lien filed ____________________
by dated ______________, 19__, and recorded _______________,
19__, in Official Records Book at Page of the Public Records
of County, Florida. Dated this day of _________________, 19__.
(Owner)
(Address)
Sworn to and subscribed before me, the undersigned authority,
this day of, 19__.
(Name)
NOTARY PUBLIC My Commission Expires:
(Contractor)
(Address)
Sworn to and subscribed before me, the undersigned authority,
this ____ day of ________________, 19__.
(Name)
NOTARY PUBLIC My Commission Expires: ____________________
Any notice of bond recorded more than 90 days after the recording
of the claim of lien shall have no force or effect as to that
lien unless the owner, the contractor and the surety all sign
the notice of bond.
(5) The clerk shall serve a copy of the notice, the bond,
and the certificate on the contractor, the surety, and the
lienor; certify to the service on the face of the notice,
the bond, and the certificate; record the notice, the bond,
and the certificate; and collect a fee in accordance with
s. 713.23(2).
(6) The contractor may join in a certificate of payment to
the contractor at any time by recording a sworn statement
substantially in the following form:
JOINDER IN CERTIFICATE OF PAYMENT
TO: _________________________________________ Owner (name
and address from certificate of payment)
Lienor (name and address from claim of lien)
Surety (name and address)
The undersigned joins in the Certificate of Payment to the
Contractor recorded on _________________________, 19__, in
Official Records Book ______ at Page ______ of the Public
Records of ____________________________ County, Florida, and
certifies that the facts stated in the Certificate of Payment
to the Contractor are true and correct. Dated this ____ day
of _______________, 19__.
(Name)
(Address)
Sworn to and subscribed before me, the undersigned authority,
this ____ day of ____________, 19__.
(Name)
NOTARY PUBLIC
My Commission Expires:
(7) The clerk shall serve the joinder in certificate of payment
on the owner, the surety, and the lienor; certify to the service
on the face of the joinder; record the joinder; and collect
a fee in accordance with s. 713.23(2).
(8) If the contractor disputes the certificate of payment
to the contractor, the contractor must record, not later than
15 days after the date the clerk certifies service of the
certificate, a sworn statement in substantially the following
form:
NOTICE OF CONTEST OF PAYMENT
TO: ____________________________ Owner (name and address from
certificate of payment)
Lienor (name and address from claim of lien)
Surety (name and address) Under penalties of perjury, the
undersigned certifies that the contractor has not been paid
or has only been paid $ for the labor, services, and materials
described in the Certificate of Payment to the Contractor
recorded in Official Records Book ______ at Page ______ of
the Public Records of ____________________ County, Florida.
Dated this ____ day of ________________, 19__.
(Name)
(Address)
Sworn to and subscribed before me, the undersigned authority,
this __ day of ________________, 19__.
(Name)
NOTARY PUBLIC My Commission Expires:
(9) The clerk shall serve a copy of the notice of contest
of payment on the owner, the lienor, and the surety; certify
service on the face of the notice; record the notice; and
collect a fee in accordance with s. 713.23(2).
(10) If the contractor has signed the certificate of payment
to the contractor or the joinder in the certificate or the
contractor fails to record a notice of contest of payment
within 15 days after the date the clerk certifies service
of a certificate of payment to the contractor signed by the
owner, the lien shall transfer to the bond to the extent of
payment specified in the certificate of payment to the contractor.
To the extent the lien exceeds the amount specified in the
certificate of payment to the contractor, such amount shall
remain as a lien on the owner’s property. The surety
may assert all claims or defenses of the owner regarding the
validity of the claim of lien or of the contractor regarding
the amount due the lienor.
(11) If the notice of contest of payment specifies that the
contractor has been paid a portion of the amount due the lienor,
the lien shall transfer to the bond to the extent of the payment
specified in the notice of contest of payment. To the extent
the lien exceeds the amount specified in the notice of contest
of payment, such amount shall remain as a lien on the owner’s
property. The surety may assert all claims or defenses of
the owner regarding the validity of the claim of lien or of
the contractor regarding the amount due the lienor.
(12) If there are any material misstatements of fact made
by the owner or the contractor in any certificate of payment
to the contractor, or by the contractor in any notice of contest
of payment, the person making the material misstatement is
guilty of a felony of the third degree, punishable as provided
in s. 775.082, s. 775.083, or s. 775.084. The penalties apply
individually and to the business entity if the false certificate
is signed in a representative capacity.
(13) The certificate of payment to the contractor and the
notice of contest of payment must be signed by the owner or
the contractor individually if he is a natural person, by
the general partner if the owner or the contractor is a limited
partnership, by a partner if the owner or the contractor is
a general partnership, by the president or a vice president
if the owner or the contractor is a corporation, or by any
authorized agent if the owner or the contractor is any other
type of business entity.
(14) In an action to enforce a lien, the owner shall not be
considered the prevailing party solely because the lien is
transferred to a conditional payment bond after the action
to enforce the lien is brought.
713.25
Applicability of Ch. 65-456
This act shall take effect on July 1, 1965, but shall
not apply to any act required to be done within a time period
which is running on that date nor shall apply to existing
projects where its operation would impair vested rights.
713.26 Redemption and Sale
The right of redemption upon all sales under this
part shall exist in favor of the person whose interest is
sold and may be exercised in the same manner as is or may
be provided for redemption of real property from sales under
mortgages.
713.27 Interplead
An owner or other person holding funds for disbursement
on an improvement shall have the right to interplead such
lienor and any other person having or claiming to have an
interest in the real property improved or a contract relating
to the improvement thereof, whenever there is a dispute between
lienors as to the amounts due or to become due them. If the
court decrees the interpleader, it may transfer all claims
to the funds held by the plaintiff. In such case the court
shall require said fund to be deposited in registry of court
and, effective upon such deposit, shall decree the real property
to be free of all liens and claims of lien of the parties
to the suit.
713.28
Judgments in Case of Failure to Establish Liens; Personal
and Deficiency Judgments or Decrees
(1)
If a lienor shall fail, for any reason, to establish a lien
for the full amount found to be due him in an action to enforce
the same under the provisions of this part, he may, in addition
to the lien decreed in his favor, recover a judgment or decree
in such action against any party liable therefore for such
sums in excess of the lien as are due him or which he might
recover in an action on a contract against any party to the
action from whom such sums are due him.
(2) In any action heretofore or hereafter brought a court
may, either before or after the final adjudication, award
a summary money judgment or decree in favor of any party.
This shall not preclude the rendition of other judgments or
decrees in the action.
(3) If, upon the sale of the real property under any judgment
or decree there is a deficiency of proceeds to pay the amount
of such judgment or decree, the judgment or decree may be
enforced for the deficiency against any person liable therefore
in the same manner and under the same conditions as deficiency
decrees in mortgage foreclosures. Any payment made on account
of any judgment or decree in favor of a party shall be credited
on any other judgment or decree rendered in favor of that
party in the same action.
713.29
Attorney’s Fees
In any action brought to enforce a lien or to enforce
a claim against a bond under this part, the prevailing party
is entitled to recover a reasonable fee for the services of
his attorney for trial and appeal or for arbitration, in an
amount to be determined by the court, which fee must be taxed
as part of his costs, as allowed in equitable actions.
713.30 Other Actions Not Barred
This part shall be cumulative to other existing remedies
and nothing contained in this part shall be construed to prevent
any lienor or assignee under any contract from maintaining
an action thereon at law in like manner as if he had no lien
for the security of his debt, and the bringing of such action
shall not prejudice his rights under this part, except as
herein otherwise expressly provided.
713.31 Remedies in Case of Fraud or
Collusion
(1) When the owner or any lienor shall, by fraud or
collusion, deprive or attempt to deprive any lienor of benefits
or rights to which such lienor is entitled under this part
by establishing or manipulating the contract price or by giving
false affidavits, releases, invoices, worthless checks, statements,
or written instruments permitted or required under this part
relating to the improvement of real property hereunder to
the detriment of any such lienor, the circuit court in chancery
shall have jurisdiction, upon a complaint filed by such lienor,
to issue temporary and permanent injunctions, order accountings,
grant discovery, utilize all remedies available under creditors’
bills and proceedings supplementary to execution, marshal
assets, and exercise any other appropriate legal or equitable
remedies or procedures without regard to the adequacy of a
remedy at law or whether or not irreparable damage has or
will be done.
(2) (a) Any lien asserted under this part in which the lienor
has willfully exaggerated the amount for which such lien is
claimed or in which the lienor has willfully included a claim
for work not performed upon or materials not furnished for
the property upon which he seeks to impress such lien or in
which the lienor has compiled his claim with such willful
and gross negligence as to amount to a willful exaggeration
shall be deemed a fraudulent lien.
(b) It is a complete defense to any action to enforce a lien
under this part, or against any lien in any action in which
the validity of the lien is an issue, that the lien is a fraudulent
lien; and the court so finding is empowered to and shall declare
the lien unenforceable, and the lienor thereupon forfeits
his right to any lien on the property upon which he sought
to impress such fraudulent lien. However, a minor mistake
or error in a claim of lien, or a good faith dispute as to
the amount due does not constitute a willful exaggeration
that operates to defeat an otherwise valid lien.
(c) An owner against whose interest in real property a fraudulent
lien is filed, or any contractor, subcontractor, or sub-subcontractor
who suffers damages as a result of the filing of the fraudulent
lien, shall have a right of action for damages occasioned
thereby. The action may be instituted independently of any
other action, or in connection with a summons to show cause
under s. 713.21, or as a counterclaim or cross-claim to any
action to enforce or to determine the validity of the lien.
The lienor who files a fraudulent lien shall be liable to
the owner or the defrauded party in damages, which shall include
court costs, clerk’s fees, a reasonable attorney’s
fee for services in securing the discharge of the lien, the
amount of any premium for a bond given to obtain the discharge
of the lien, interest on any money deposited for the purpose
of discharging the lien, and punitive damages in an amount
not exceeding the difference between the amount claimed by
the lienor to be due or to become due and the amount actually
due or to become due.
(3) Any person who willfully files a fraudulent lien, as defined
in this section, commits a felony of the third degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084.
713.32
Insurance Proceeds Liable for Demands
The proceeds of any insurance that by the terms of
the policy contract are payable to the owner of improved real
property or a lienor and actually received or to be received
by him because of the damage, destruction, or removal by fire
or other casualty of an improvement on which lienors have
furnished labor or services or materials shall, after the
owner or lienor, as the case may be, has been reimbursed therefrom
for any premiums paid by him, be liable to liens or demands
for payment provided by this part to the same extent and in
the same manner, order of priority, and conditions as the
real property or payments under a direct contract would have
been, if the improvement not been so damaged, destroyed, or
removed. The insurer may pay the proceeds of the policy of
insurance to the insured named in the policy and thereupon
any liability of the insurer under this part shall cease.
The named insured who receives any proceeds of the policy
shall be deemed a trustee of the proceeds, and the proceeds
shall be deemed trust funds for the purposes designated by
this section for a period of 1 year from the date of receipt
of the proceeds. This section shall not apply to that part
of the proceeds of any policy of insurance payable to a person,
including a mortgagee, who holds a lien perfected before the
recording of the notice of commencement or recommencement.
713.33 Disbursing Agent and Others
May Rely on Owner’s Notices
When the proceeds of a construction or improvement
loan or any portion thereof are being disbursed by a person
other than the owner, any affidavit, notice or other instrument
which is permitted or required under this part to be furnished
to the owner may be relied upon by such other person in making
such disbursements to the same extent as the owner is entitled
to rely upon the same.
713.345 Moneys Received for Real Property
Improvements; Penalty for Misapplication
(1) (a) A person, firm, or corporation, or an agent,
officer, or employee thereof, who receives any payment on
account of improving real property must apply such portion
of any payment to the payment of all amounts then due and
owing for services and labor which were performed on, or materials
which were furnished for, such improvement prior to receipt
of the payment. This paragraph does not prevent any person
from withholding any payment, or any part of a payment, in
accordance with the terms of a contract for services, labor,
or materials, or pursuant to a bona fide dispute regarding
the amount due, if any, for such services, labor, or materials.
(b) Any person who knowingly and intentionally fails to comply
with paragraph (a) is guilty of misapplication of construction
funds, punishable as follows: 1. If the amount of payments
misapplied have an aggregate value of $100,000 or more, the
violator is guilty of a felony of the first degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084. 2. If
the amount of payments misapplied have an aggregate value
of $20,000 or more but less than $100,000, the violator is
guilty of a felony of the second degree, punishable as provided
in s. 775.082, s. 775.083, or s. 775.084. 3. If the amount
of payments misapplied have an aggregate value of less than
$20,000, the violator is guilty of a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) The provisions of this section do not apply to mortgage
bankers or their agents, servants, or employees for their
acts in the usual course of the business of lending or disbursing
mortgage funds.
713.346 Payment on Construction Contracts
(1) Any person who receives a payment for constructing
or altering permanent improvements to real property shall
pay, in accordance with the contract terms, the undisputed
contract obligations for labor, services, or materials provided
on account of such improvements.
(2) The failure to pay any undisputed obligations for such
labor, services, or materials within 30 days after the date
the labor, services, or materials were furnished and payment
for such labor, services, or materials became due, or within
30 days after the date payment for such labor, services, or
materials is received, whichever last occurs, shall entitle
any person providing such labor, services, or materials to
the procedures specified in subsection (3) and the remedies
provided in subsection (4).
(3) Any person providing labor, services, or materials for
improvements to real property may file a verified complaint
alleging:
(a) The existence of a contract, as defined in s. 713.01,
to improve real property.
(b) A description of the labor, services, or materials provided
and alleging that the labor, services, or materials were provided
in accordance with the contract.
(c) The amount of the contract price.
(d) The amount, if any, paid pursuant to the contract.
(e) The amount that remains unpaid pursuant to the contract,
and the amount thereof that is undisputed.
(f) That the undisputed amount has remained due and payable
pursuant to the contract for more than 30 days after the date
the labor or services were accepted or the materials were
received.
(g) That the person against whom the complaint was filed has
received payment on account of the labor, services, or materials
described in the complaint more than 30 days prior to the
date the complaint was filed.
(4) After service of the complaint, the court shall conduct
an evidentiary hearing on the complaint, upon not less than
15 days’ written notice. The person providing labor,
services, or materials is entitled to the following remedies
to the extent of the undisputed amount due for labor or services
performed or materials supplied, and upon proof of each allegation
in the complaint:
(a) An accounting of the use of any such payment from the
person who received such payment.
(b) A temporary injunction against the person who received
the payment, subject to the bond requirements specified in
the Florida Rules of Civil Procedure.
(c) Prejudgment attachment against the person who received
the payment, in accordance with each of the requirements of
chapter 76.
(d) Such other legal or equitable remedies as may be appropriate
in accordance with the requirements of the law.
(5) The remedies specified in subsection (4) must be granted
without regard to any other remedy at law and without regard
to whether or not irreparable damage has occurred or will
occur.
(6) The remedies specified in subsection (4) do not apply:
(a) To the extent of a bona fide dispute regarding any portion
of the contract price.
(b) In the event the plaintiff has committed a material breach
of the contract which would relieve the defendant from the
obligations under the contract.
(7) The prevailing party in any proceeding under this section
is entitled to recover costs, including a reasonable attorney’s
fee, at trial and on appeal.
713.3471 Lender Responsibilities With Construction Loans
(1) (a) Within 5 business days after a lender makes
a final determination, prior to the distribution of all funds
available under a construction loan, that the lender will
cease further advances pursuant to the loan, the lender shall
serve written notice of that decision on the contractor and
on any other lienor who has given the lender notice. The lender
shall not be liable to the contractor based upon the decision
of the lender to cease further advances if the lender gives
the contractor notice of such decision in accordance with
this subsection and the decision is otherwise permitted under
the loan documents.
(b) The failure to give notice to the contractor under paragraph
(a) renders the lender liable to the contractor to the extent
of the actual value of the materials and direct labor costs
furnished by the contractor plus 15 percent for overhead,
profit, and all other costs from the date on which notice
of the lender’s decision should have been served on
the contractor and the date on which notice of the lender’s
decision is served on the contractor. The lender and the contractor
may agree in writing to any other reasonable method for determining
the value of the labor, services, and materials furnished
by the contractor.
(c) The liability of the lender shall in no event be greater
than the amount of undisbursed funds at the time the notice
should have been given unless the failure to give notice was
done for the purpose of defrauding the contractor. The lender
is not liable to the contractor for consequential or punitive
damages for failure to give timely notice under this subsection.
The contractor shall have a separate cause of action against
the lender for damages sustained as the result of the lender’s
failure to give timely notice under this subsection. Such
separate cause of action may not be used to hinder or delay
any foreclosure action filed by the lender, may not be the
basis of any claim for an equitable lien or for equitable
subordination of the mortgage lien, and may not be asserted
as an offset or a defense in the foreclosure case.
(d) For purposes of serving notice on the contractor under
this subsection, the lender may rely on the name and address
of the contractor listed in the notice of commencement or,
if no notice of commencement is recorded, on the name and
address of the contractor listed in the uniform building permit
application. For purposes of serving notice on any other lienor
under this subsection, the lender may rely upon the name and
address of the lienor listed in the notice to owner.
(e) The contractor or any other lienor may not waive the right
to receive notice under this paragraph.
(2) (a) If the lender and the borrower have designated a portion
of the construction loan proceeds, the borrower may not authorize
the lender to disburse the funds so designated for any other
purpose until the owner serves the contractor and any other
lienor who has given the owner a notice to owner with written
notice of that decision, including the amount of such loan
proceeds to be disbursed. For the purposes of this subsection,
the term “designated construction loan proceeds”
means that portion of the loan allocated to actual construction
costs of the facility and shall not include allocated loan
proceeds for tenant improvements where the contractor has
no contractual obligation or work order to proceed with such
improvements. The lender shall not be liable to the contractor
based upon the reallocation of the loan proceeds or the disbursement
of the loan proceeds if the notice is timely given in accordance
with this subsection and the decision is otherwise permitted
under the loan documents.
(b) If the lender is permitted under the loan documents to
make disbursements from the loan contrary to the original
loan budget without the borrower’s prior consent, the
lender is responsible for serving the notice to the contractor
or other lienor required under this subsection.
(c) This subsection does not apply to a residential project
of four units or less.
(d) This subsection does not apply to construction loans of
less than $1 million unless the lender has committed to make
more than one loan, the total of which loans are greater than
$1 million, for the purpose of evading this subsection.
(e) The owner or the lender is not required to give notice
to the contractor or any other lienor under this subsection
unless the total amount of all disbursements described in
paragraph (a) exceed 5 percent of the original amount of the
designated construction loan proceeds or $100,000, whichever
is less.
(f) Disbursement of loan proceeds contrary to this subsection
renders the lender liable to the contractor to the extent
of any such disbursements or to the extent of the actual value
of the materials and direct labor costs plus 15 percent for
overhead, profit, and all other costs, whichever is less.
The lender is not liable to the contractor for consequential
or punitive damages for disbursing loan proceeds in violation
of this subsection. The contractor shall have a separate cause
of action against the lender for damages sustained as the
result of the disbursement of loan proceeds in violation of
this subsection. Such separate cause of action may not be
used to hinder or delay any foreclosure action filed by the
lender, may not be the basis of any claim for equitable subordination
of the mortgage lien, and may not be asserted as an offset
or a defense in the foreclosure case.
(g) For purposes of serving notice on the contractor under
this subsection, the lender may rely upon the name and address
of the contractor listed in the notice of commencement or,
if no notice of commencement is recorded, the name and address
of the contractor listed in the uniform building permit application.
For purposes of serving notice on any other lienor under this
subsection, the lender may rely upon the name and address
of the lienor listed in the notice to owner.
(h) For purposes of this subsection, the lender may rely upon
a written statement, signed under oath by the contractor or
any other lienor, that confirms that the contractor or the
lienor has received the written notice required by this subsection.
(i) A contractor and any other lienor may not waive his right
to receive notice under this subsection.
713.35 Making or Furnishing False Statement
Any person, firm, or corporation who knowingly and
intentionally makes or furnishes to another person, firm,
or corporation, a written statement in the form of an affidavit,
whether or not under oath, containing false information about
the payment status of subcontractors, sub-subcontractors,
or suppliers in connection with the improvement of real property
in this state, knowing that the one to whom it was furnished
might rely on it, and the one to whom it was furnished will
part with draw payments or final payment relying on the truth
of such statement as an inducement to do so is guilty of a
felony of the third degree, punishable as provided in s. 775.082
or s. 775.083.
713.36 Effective Date
Chapter 63-135 shall take effect at 12:01 a.m., October
1, 1963. The rights of all persons with respect to an improvement
that has a time of visible commencement prior to October 1,
1963, shall be determined and enforced as provided in former
ss. 84.01-84.35, as they existed prior to October 1, 1963.
As to all other rights, former ss. 84.01-84.35 are repealed
concurrently with the effective time of this part.
713.37
Rule of Construction
This part shall not be subject to a rule of liberal
construction in favor of any person to whom it applies. |
