Florida Proposed Statute - Many Changes to Florida's Lien and Bond Statutes for Public and Private Projects

A proposed statute filed last week would make many changes to parts of Chapters 255, 337, and 713, Florida Statutes. While some of the proposed changes merely codify how contractors have traditionally done things, some of the proposed changes create new, technical requirements to for construction liens, bonds, notices of commencement, and notices of termination.

Liens and Bonds - SB 622

Under the proposed statute, changes are made to Chapters 255, 337, and 713, Florida Statutes. These proposed changes are listed below.

Chapter 255 (Public Projects)

255.05 would be modified as follows:

  • Clarifies that a copy of notice of nonpayment must be served on general contractor and surety

  • Updates notarization of notice of nonpayment to allow online notarization

  • Clarifies that a subcontractor cannot be required to sign a waiver other than the statutory form unless agreed to in a contract

  • Provisions or releases contained in lien waivers, other than the lien waiver provision, are unenforceable, unless the subcontractor agreed upfront to use those releases.

  • Service of a notice of nonpayment must be made as required under 713.18

Chapter 337 (Public Maintenance Contracts)

337.18 would be modified as follows:

  • 713.325 would apply to all contracts under 337.18

  • Service of all documents under 337.18 must comply with the requirements of 713.18

Chapter 713 (Florida’s Construction Lien Law)

713.01 would be modified as follows:

  • Clerks’ office definition extended to include any other office serving as a county recorded

  • Contractor definition expanded to include “a licensed general contractor or building contractor, as those terms are defined in 489.105(3)(a) and (b), respectively, who provides construction management services, which include responsibility for scheduling and coordination in both preconstruction and construction phases and for the successful, timely, and economical completion of the construction project, or who provides program management services, which include responsibility for schedule control, cost control, and coordination in providing or procuring planning ,design ,and construction.

  • Real property definition expanded to include a private leasehold interest that is improved and the improvements thereon, on land that is owned by the state or any county, municipality, school board, or governmental agency, commission, or political subdivision.

 713.09 would be modified as follows:

  • Can use one lien to cover amounts due under multiple direct contracts as long as the owner under the direct contracts is the same for all parcels where a lien is being recorded

 713.10 would be modified as follows:

  • Liens cannot attach to the interest of a lessor if the lessee is a mobile home owner, leasing a lot in a mobile home park from the lessor

713.13 would be modified as follows:

  • Requires name and address of lessee on notice of commencement if the lessee contracts for improvements like an owner, as defined in 713.01

  • Payments made before the recording of the notice of commencement would be considered improper

  • Notice of Commencement can be signed by online notarization

713.132 would be modified as follows:

  • Notice of termination must include the official reference number and recording date of NOC

  • Owners must now promise to serve a copy of the notice of termination on each lienor who timely serves an NTO after the notice of termination has been recorded

  • Notice of termination can be recorded anytime after all lienors have been paid under 713.06(4).

  • Notice of termination must be served before recording on each direct lienor and on each lienor who served a notice to owner. Lienors who being work before termination and timely serve a notice to owner, owner must serve copy of termination before it can be effective.

 713.18 would be modified as follows:

  • Expands to apply to all documents under 713

  • Expands to cover 255.05 and 337.18

  • Can be delivered by hand, by common carrier, or certified mail to the person to be served, or by posting if those methods fail

  • Removes 713.23 from the portion of the statute the presumes service if certain conditions are met

  • Documents must be sent to the address shown in the notice of commencement, or in the absence of a properly indexed notice of commencement, the last known address of the person to be served, unless otherwise stated in this statute

713.20 would be modified as follows:

  • Cannot ask for lien waivers in exchange for progress or final payment that are not  in the statutory form unless agreed to by the parties in advance

  • Non lien waiver provisions in waiver are not enforceable unless agreed to in advance

713.21 would be modified as follows:

  • Liens can be released by recording a notarized release including the references numbers and date of the lien

713.23 would be modified as follows:

  • Clarifies that a copy of notice of nonpayment must be served on general contractor and surety

  • Updates notarization of notice of nonpayment to allow online notarization

  • Clarifies that a subcontractor cannot be required to sign a waiver other than the statutory form unless agreed to in a contract

  • Provisions or releases contained in lien waivers, other than the lien waiver provision, are unenforceable, unless the subcontractor agreed upfront to use those releases.

713.29 would be modified as follows:

  • Can get award of attorneys fees for liens transferred to surety

This is a proposed statute, and we will keep you posted on any changes to its status.