SECTION 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) 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 with the attached bond is not recorded before commencement of construction, the lienor not in privity with the contractor may, in the alternative, elect to serve the notice to the contractor up to 45 days after the date the lienor is served with a copy of the bond. A notice to owner pursuant to s. 713.06 that has been timely served on the contractor satisfies the requirements of this paragraph. However, the limitation period for commencement of an action on the payment bond as established in paragraph (e) may not be expanded. The notice may be in substantially the following form and may be combined with a notice to owner given under s. 713.06 and, if so, may be entitled “NOTICE TO OWNER/NOTICE TO CONTRACTOR”:

  NOTICE TO CONTRACTOR

  To (name and address of contractor)

  The undersigned hereby informs you that he or she 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 (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)

  (date)

  (lienor’s address)

  (d) In addition, a lienor who has not received payment for furnishing his or her labor, services, or materials must, as a condition precedent to recovery under the bond, serve a written notice of nonpayment to the contractor and the surety. The notice must be under oath and served during the progress of the work or thereafter, but may not be served later than 90 days after the final furnishing of labor, services, or materials by the lienor, or, with respect to rental equipment, later than 90 days after the date the rental equipment was on the job site and available for use. A notice of nonpayment that includes sums for retainage must specify the portion of the amount claimed for retainage. The required notice satisfies this condition precedent with respect to the payment described in the notice of nonpayment, including unpaid finance charges due under the lienor’s contract, and with respect to any other payments which become due to the lienor after the date of the notice of nonpayment. The time period for serving a notice of nonpayment shall be measured from the last day of furnishing labor, services, or materials by the lienor and may not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion. 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. If the payment bond is not recorded before commencement of construction, the time period for the lienor to serve a notice of nonpayment may at the option of the lienor be calculated from the date specified in this section or the date the lienor is served a copy of the bond. However, the limitation period for commencement of an action on the payment bond as established in paragraph (e) may not be expanded. The negligent inclusion or omission of any information in the notice of nonpayment that has not prejudiced the contractor or surety does not constitute a default that operates to defeat an otherwise valid bond claim. A lienor who serves a fraudulent notice of nonpayment forfeits his or her rights under the bond. A notice of nonpayment is fraudulent if the lienor has willfully exaggerated the amount unpaid, willfully included a claim for work not performed or materials not furnished for the subject improvement, or prepared the notice with such willful and gross negligence as to amount to a willful exaggeration. However, a minor mistake or error in a notice of nonpayment, or a good faith dispute as to the amount unpaid, does not constitute a willful exaggeration that operates to defeat an otherwise valid claim against the bond. The service of a fraudulent notice of nonpayment is a complete defense to the lienor’s claim against the bond. The notice under this paragraph must include the following information, current as of the date of the notice, and must be in substantially the following form:

  NOTICE OF NONPAYMENT

  To (name of contractor and address)

  (name of surety and address)

  The undersigned lienor notifies you that:

  1. The lienor has furnished (describe labor, services, or materials) for the improvement of the real property identified as (property description) . The corresponding amount unpaid to date is $ , of which $ is unpaid retainage.

  2. The lienor has been paid to date the amount of $ for previously furnishing (describe labor, services, or materials) for this improvement.

  3. The lienor expects to furnish (describe labor, services, or materials) for this improvement in the future (if known), and the corresponding amount expected to become due is $ (if known).

  I declare that I have read the foregoing Notice of Nonpayment and that the facts stated in it are true to the best of my knowledge and belief.

  DATED on , .

  (signature and address of lienor)

  STATE OF FLORIDA

  COUNTY OF

  The foregoing instrument was sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of signatory) .

  (Signature of Notary Public - State of Florida)

  (Print, Type, or Stamp Commissioned Name of Notary Public)

  Personally Known OR Produced Identification

  Type of Identification Produced

  (e) An action for the labor or materials or supplies may not be instituted or prosecuted against the contractor or surety unless both notices have been given, if required by this section. An action may not 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. The time period for bringing an action against the contractor or surety on the bond shall be measured from the last day of furnishing labor, services, or materials by the lienor. The time period may not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion. A contractor or the contractor’s attorney may elect to shorten the time within which an action to enforce any claim against a payment bond provided under this section or s. 713.245 must be commenced at any time after a notice of nonpayment, if required, has been served for the claim by recording in the clerk’s office a notice in substantially the following form:

  NOTICE OF CONTEST OF CLAIM
  AGAINST PAYMENT BOND

  To: (Name and address of lienor)

  You are notified that the undersigned contests your notice of nonpayment, dated , , and served on the undersigned on , , and that the time within which you may file suit to enforce your claim is limited to 60 days from the date of service of this notice.

  DATED on , .

  Signed: (Contractor or Attorney)

  The claim of any lienor upon whom the notice is served and who fails to institute a suit to enforce his or her claim against the payment bond within 60 days after service of the notice shall be extinguished automatically. The contractor or the contractor’s attorney shall serve a copy of the notice of contest to the lienor at the address shown in the notice of nonpayment or most recent amendment thereto and shall certify to such service on the face of the notice and record the notice.

  (f) A lienor has a direct right of action on the bond against the surety. Any provision in a payment bond issued on or after October 1, 2012, which further restricts the classes of persons who are protected by the payment bond, which restricts the venue of any proceeding relating to such payment bond, which limits or expands the effective duration of the payment bond, or which adds conditions precedent to the enforcement of a claim against a payment bond beyond those provided in this part is unenforceable. 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 or her 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, with the bond attached, 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 , , 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 person recording the notice of bond shall serve a copy of the notice with a copy of the bond 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.

  (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 , , 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 , .

  (Principal) (SEAL)

  (Surety’s name)

  By

  As Attorney in Fact

  (4) The provisions of s. 713.24(3) apply to bonds under this section except when those provisions conflict with this section.
  (5) A waiver and release of lien pursuant to s. 713.20 given by a lienor shall constitute a waiver and release in a like amount of the lienor’s right to make a claim against a payment bond under this section.

History.-s. 1, ch. 63-135; s. 14, ch. 65-456; s. 35, ch. 67-254; s. 10, ch. 77-353; s. 8, ch. 80-97; s. 5, ch. 87-74; s. 6, ch. 88-397; s. 12, ch. 90-109; s. 812, ch. 97-102; s. 6, ch. 98-135; s. 32, ch. 99-6; s. 8, ch. 99-386; s. 8, ch. 2001-211; s. 10, ch. 2005-227; s. 11, ch. 2012-211; s. 4, ch. 2019-94.

Note

Note.-Former s. 84.231.

History.-s. 1, ch. 63-135; s. 14, ch. 65-456; s. 35, ch. 67-254; s. 10, ch. 77-353; s. 8, ch. 80-97; s. 5, ch. 87-74; s. 6, ch. 88-397; s. 12, ch. 90-109; s. 812, ch. 97-102; s. 6, ch. 98-135; s. 32, ch. 99-6; s. 8, ch. 99-386; s. 8, ch. 2001-211; s. 10, ch. 2005-227; s. 11, ch. 2012-211; s. 4, ch. 2019-94.

Note

Note.-Former s. 84.231.