Transcript Project Status

2012 STATUTORY
CHANGES IN FLORIDA’S
CONSTRUCTION LAWS
July 2012
Presented by:
Thomas P. Wert, Esq.
© Roetzel & Andress, LPA 2012
Roetzel Introduction

With offices in four states and Washington, D.C., Roetzel
offers comprehensive legal services to a broad spectrum
of clients on a regional, national and international basis.

Orlando services include Construction, Business
Litigation, Real Estate Development, Banking & Finance,
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Business Services.
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Our attorneys represent a wide range of clients, from
multinational corporations to government entities,
individuals and closely held businesses. The firm serves
as general counsel to numerous clients and many of
those relationships have existed for much of our history.
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For the 5th consecutive year, Roetzel was selected by inhouse counsel at Fortune 500 companies as a 2012 "GoTo Law Firm®" for Commercial Litigation.
Public Construction Bonds
and Private Payment Bonds
 Changes have been made to the form required
for payment and performance bonds on public
projects and the enforceability of certain bond
provisions
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Public Construction Bonds
 After October 1, 2012, the required payment
and performance bond must state the bond
number assigned by the surety on its front
page
 Before commencing work, the contractor must
provide the public entity with a certified copy
of the recorded bond.
 Public entity now may not make a payment to
the contractor until the contractor has provided
the required certified copy of the recorded
bond.
Public and Private
Payment Bonds
 § 255.05(1)(a), Florida Statutes previously
made certain bond provisions unenforceable.
 After 10/01/12, provisions limiting or
expanding the duration of the bond or adding
conditions to the enforcement of a claim
against the bond are also unenforceable.
 Similar change to private payment bonds
(§ 713.23)
Public and Private
Payment Bonds
 § 255.05 - contractor may shorten the oneyear duration of a payment bond claim to 60
days by recording a Notice of Contest of Claim
Against Payment Bond
 Clerk previously required to serve a copy of the
notice upon the bond claimant by mail
 60-day period did not begin to run until the
clerk mailed the notice
Public and Private
Payment Bonds
 Contractor or the contractor’s attorney now
required to serve the notice, rather than the
clerk
 Similar provisions added to § 713.23
concerning private payment bonds
Public Construction Bonds
 § 255.05, now has new subsection 11
 After 10/01/12, public entity cannot condition
payments on delivery of a releases or waivers
from bond claimants, if the contractor
furnishes and records bond and provides a
written consent from the surety.
 § 255.05 (11) also allows surety to revoke a
prior consent, or direct the public authority to
withhold a specified amount from a payment,
by serving written notice upon the public
authority
Private Payment Bonds
 Section 713.23 previously provided if NOC is
not recorded or a reference to the bond not
given in NOC and the lienor is not notified in
writing that a bond exists, the lienor has 45
days from notification of the bond’s existence
to serve a NTC
 § 713.23 now provides that if NOC is not
recorded with the bond before commencement
of construction, a lienor not in privity with the
contractor can elect to serve NTC up to 45
days after the lienor is served with a copy of
the bond.
Private Payment Bonds
 § 723.23 now provides that a timely served
notice to owner, which is served on the
contractor, has the same effect as a notice to
contractor
 But NTO cannot extend the 1-year statutory
limitation period for filing an action on the
bond
 Allows for the combination of NTO with a NTC,
which may be entitled “NOTICE TO OWNER/
NOTICE TO CONTRACTOR.”
Private Payment Bonds
 If bond is not recorded before construction, §
713.23 (d) now allows a claimant, at its option,
to calculate the 90-day time period for serving
a notice of nonpayment from either:
 (1) the date of final furnishing of labor, service
or materials or
 (2) the date the lienor is served with a copy of
the bond
 But, 1 year limitations period for bringing claim
cannot be extended
Public Bids
 New statute - § 255.0518
Public Bids
 Requires government departments or agencies
to open sealed competitive bids
◦
at a public meeting
◦
announce the name of each bidder
◦
announce the price of each bid
◦
make each bidder’s name/price
available upon request.
Public Bids
 § 255.0518 - effective immediately
 Must be complied with notwithstanding §
119.071, F.S.
Construction Liens for
Tenant Work
 Section 713.10 has been
amended to clarify the extent
of liens on the interest of
landlord when a tenant makes
improvements
 Abrogates Everglades Electric
Supply, Inc. v. Paraiso Granite
Construction Liens for
Tenant Work
 Section 713.10 now provides that a blanket
notice recorded in the public records
“effectively prohibits liens for improvements
made by a lessee even if other leases for the
premises on the parcel do not expressly
prohibit liens or if provisions of each lease
restricting the application of liens are not
identical.”
Notice of Commencement
 Required Notice of Commencement form:
◦ Expiration Date:
… 9. Expiration date of Notice of
Commencement (The expiration date will be one
year from the date of recording unless a different
date is specified)….
◦ Sworn statement removed:
“[U]nder penalty of perjury, I declare that I have
read the foregoing Notice of Commencement and
that the facts stated therein are true to the best
of my knowledge and belief.”
Demand for Copy of Contract
and Sworn Statement of
Account
 § 713.16 (2) -written demand by the owner
must now include “a description of the
property and the names of the owner, the
contractor, and the lienor’s customer, as set
forth in the notice to owner”
 Same information also now required in any
written demand for a sworn statement of
account served by a contractor
Demand for Copy of Contract
and Sworn Statement of
Account
 § 713.16(5) – previously allowed a lienor to
serve a written demand on the owner for a
written statement of various contract amounts
upon recordation of the claim of lien
 Now, it allows lienor to serve the written
demand on the owner while lienor is perfecting
a claim of lien
 Written demand must now include description
of property and names of contractor and
lienor’s customer
Manner of Serving Notices
 Notices, claims of lien and other papers served
under Chapter 713 may now be served by
common carrier delivery service or by Global
Express Guaranteed mail paid by the sender
 If the address in NOC or building permit app. is
incomplete, § 713.18 allows service of notice
by completing the address using information
obtained from property appraiser or public
record
Grandfathering - Certification
of Registered Contractor
 § 489.118 reenacted for all applications submitted
by November 1, 2015
Grandfathering - Certification
of Registered Contractor
 Licensing board required to issue certificate to
registered contractor who can show:
− holds a valid registered local license in a specified
category
− passed a written exam substantially similar to the
exam required to be certified contractor
− at least 5 years of experience as a contractor in that
contracting category
− not had contractor's license revoked
− complies with the insurance and financial
responsibility requirements
 Applicants wishing to obtain a certificate pursuant
to this section must make application by November
1, 2005.
Notice of Termination
 § 713.132 – Owners seeking to terminate the
period of effectiveness of a NOC could
previously do so by recording a Notice of
Termination stating that the owner served a
copy upon each lienor who had “given notice”
and serving the NOT upon those lienors
 Now, the NOT must contain a statement that
owner has served copy of notice on each lienor
with direct contract with owner or each lienor
who has served a notice to owner and it is not
effective to terminate NOC unless those parties
have been served with the NOT
Speaker Contact Information
Thomas P. Wert, Esq.
Roetzel & Andress, LPA
420 South Orange Avenue
CNL II, 7th Floor
Orlando, FL 32801
Phone: 407-835-8548
[email protected]
www.ralaw.com
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