The 2012 Florida Legislature made some significant changes to the State public bonding statute, Fla. Stat. 255.05 and the Florida Construction Lien Law. House Bill 897 passed and became Chapter 2012-211, Laws of Florida effective October 1, 2012:
The following is a summary of the changes:
1) Makes clear that actions on statutory bonds are to be made within one year, except as to what the statutory bonds state with respect to actions for retainage.
Florida Statute 95.11
(2) WITHIN FIVE YEARS.- (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e).
(5) WITHIN ONE YEAR.- (e) Except for actions governed by s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), an action to enforce any claim against a payment bond on which the principal is a contractor, subcontractor, or sub-subcontractor …
2) New requirements for first page of F.S. 255.05 bond:
Bond number (assigned by surety)
In addition to what was previously required the following will be required on the first page of the bond as of October 1, 2012:
name, principal business address, and phone number of the contractor, the surety, and owner of the property
Contract number assigned by public entity
A description of the project sufficient to identify it, such as a legal description or the street address of the property being improved, and a general description of the improvement.
3) For contracts entered into as of October 1, 2012, with a public entity the following is a new consequence of not furnishing a certified copy of the bond to the owner:
Before commencing the work or before recommencing the work after a default or abandonment, the contractor shall provide to the public entity a certified copy of the recorded bond. Notwithstanding the terms of the contract or any other law governing prompt payment for construction services, the public entity may not make a payment to the contractor until the contractor has complied with this paragraph.
4) After October 1, 2012 a F.S. 255.05 bond cannot
a) restrict class of claimants from those listed under F.S. 713.01 as lienors
b) restrict venue for bond claim
c) restrict or expand duration of the bond
d) add conditions precedent to the enforcement of a claim against the bond
beyond those provided in the statute
5) With regard to the notice of contest of bond claim under F.S. 255.05
a) The contractor or contractor’s attorneys must serve – not the court clerk
b) Service is no longer complete on mailing – must have evidence of delivery
6) For contracts made on or after October 1, 2012, the public owner’s right to withhold payment is limited. With a written consent from the surety regarding the project or payment in question, the public authority may not condition its payment to the contractor on the production of a release, waiver, or like documentation from a claimant demonstrating that the claimant does not have an outstanding claim against the contractor, the surety, the payment bond, or the public authority for payments. The surety has the right to revoke a consent of surety in writing.
7) Public bid openings: When opening sealed bids or the portion of any sealed bids that include the prices submitted that are received pursuant to a competitive solicitation for construction or repairs on a public building or public work, open the sealed bids at a public meeting conducted in compliance with s. 286.011.
Announce at that meeting the name of each bidder and 312 the price submitted.
Make available upon request the name of each bidder and the price submitted.
8) Liens on leasehold property. If a lease prohibits liens against the landlord’s interest for some (not all) parcels, the landlord may record a notice of lien prohibition. A lienor has the right to request a verified copy of the lease in writing with a specific form and warning that failure to timely furnish lease will make landlord’s interest subject to lien:
WARNING –YOUR FAILURE TO SERVE THE REQUESTED VERIFIED COPY WITHIN 30 DAYS OR THE SERVICE OF A FALSE COPY MAY RESULT IN YOUR PROPERTY BEING SUBJECT TO THE CLAIM OF LIEN OF THE PERSON REQUESTING THE VERIFIED COPY.
9) Notice of commencement (NOC). The effective period of the NOC changed back to one year from recording unless otherwise stated. (Before this change the effective period was through completion and final payment.) In the NOC form the verification (Under penalty of perjury …) was removed. The form still has the notary acknowledgement.
10) Attaching the payment bond to the NOC. In the bond is not attached, the lienor has the choice of counting days for notices from either the date of first work, or from the date that a copy of the bond was served on the lienor. (Don’t forget to attach a copy of the bond to the NOC). If the bond is not attached to the NOC there should be an amended NOC or lienors have a longer time to send bond notices.
11) Notice of termination of the NOC. The owner must serve copy on all lienors serving notice AND all lienors having a direct contract with the owner.
12) Requests for sworn statement of account under both F.S. 713.16(2) and 713.23 must include a description of the property and the names of the owner, the contractor, and the lienor’s customer, as set forth in the lienor’s notice to owner.
13) Lienor’s request for sworn statement from the owner under F.S. 713.16(5):
Any lienor who is perfecting a claim of lien has recorded a claim of lien may serve with the claim of lien or thereafter a make written demand on the owner for a written statement under oath.
Any written request served on the owner must include a description of the property and the names of the contractor and the lienor’s customer, as set forth in the lienor’s notice to owner.
14) Service of documents under the lien law (F.S. 713.18):
a) By common carrier delivery service or sending the same by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and prepaid, or by overnight or second-day delivery with evidence of delivery, which may be in an electronic format.
.b) If the address shown in the notice of commencement or any amendment to the notice of commencement, or, in the absence of a notice of commencement, in the building permit application, is incomplete for purposes of mailing or delivery, the person serving the item may complete the address and properly format it according to United States Postal Service addressing standards using information obtained from the property appraiser or another public record without affecting the validity of service under this section.
15) Notice of contest of lien:
a) The Clerk is to certify the date of service on the notice of contest of lien.
b) Service is no longer complete upon mailing.
16) Notice to owner and preliminary notice to contractor under 713.23 bond:
a) Now officially recognizes a combination form Notice to owner and preliminary notice to contractor
b) New official form for preliminary notice to contactor:
NOTICE TO CONTRACTOR
To …(name and address of contractor)…
The undersigned hereby informs you that he or she has furnished 810 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 …(lienor’s customer)….
This notice is to inform you that the undersigned intends to look to the contractor’s bond to secure payment for the furnishing of materials or services for the improvement of the real property.
..(name of lienor)…
…(signature of lienor or lienor’s representative)…
17) Notice of contest of claim against 713.23 payment bond:
a) Contractor or Contractor’s mediation/arbitration is to serve the copy on the claimant
b) Service is no longer complete upon mailing.
18) Prohibition against certain restrictions under 713.23 bond: The bond cannot:
a) Restrict classes of claimants from what the statute allows
b) Restrict venue
c) Limit or expand the duration of the bond from the statutory period
19) Notice of bond to transfer lien to payment bond – Copy of bond must be attached