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 cer |
