713.245 Conditional payment bond.—
(1) Notwithstanding any provisions of ss. 713.23 and 713.24 to the contrary, if the contractor’s written contractual obligation to pay lienors is expressly conditioned upon and limited to the payments made by the owner to the contractor, the duty of the surety to pay lienors will be coextensive with the duty of the contractor to pay, if the following provisions are complied with:
(a) The bond is listed in the notice of commencement for the project as a conditional payment bond and is recorded together with the notice of commencement for the project prior to commencement of the project.
(b) The words “conditional payment bond” are contained in the title of the bond at the top of the front page.
(c) The bond contains on the front page, in at least 10-point type, the statement: THIS BOND ONLY COVERS CLAIMS OF SUBCONTRACTORS, SUB-SUBCONTRACTORS, SUPPLIERS, AND LABORERS TO THE EXTENT THE CONTRACTOR HAS BEEN PAID FOR THE LABOR, SERVICES, OR MATERIALS PROVIDED BY SUCH PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING A CLAIM OF LIEN ON THIS PROJECT.
(2) Except as specified in this section, all bonds issued under this section must conform to the requirements of s. 713.23(1)(a), (b), (f), and (4). No action shall be instituted or prosecuted against the contractor or the surety after 1 year from the date the lien is transferred to the bond.
(3) The owner’s property is not exempt from liens filed under this part. All lienors must comply with the provisions of this part to preserve and perfect those lien rights.
(4) Within 90 days after a claim of lien is recorded for labor, services, or materials for which the contractor has been paid, the owner or the contractor may record a notice of bond as specified in s. 713.23(2), together with a copy of the bond and a sworn statement in substantially the following form:
CERTIFICATE OF PAYMENT
TO THE CONTRACTOR
TO: Lienor (name and address from claim of lien)
Contractor (name and address)
Surety (name and address)
Under penalties of perjury, the undersigned certifies that the bond recorded with this certificate conforms with s. 713.245, F.S., that the bond is in full force and effect, and that the contractor has been paid $ for the labor, services, and materials described in the Claim of Lien filed by dated , (year) , and recorded , (year) , in Official Records Book at Page of the Public Records of County, Florida.
Dated this day of , (year) .
(Owner)
(Address)
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .
(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
(Contractor)
(Address)
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .
(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
Any notice of bond recorded more than 90 days after the recording of the claim of lien shall have no force or effect as to that lien unless the owner, the contractor and the surety all sign the notice of bond.
(5) The clerk shall serve a copy of the notice, the bond, and the certificate on the contractor, the surety, and the lienor; certify to the service on the face of the notice, the bond, and the certificate; record the notice, the bond, and the certificate; and collect a fee in accordance with s. 713.23(2).
(6) The contractor may join in a certificate of payment to the contractor at any time by recording a sworn statement substantially in the following form:
JOINDER IN CERTIFICATE OF PAYMENT
TO: Owner (name and address from certificate of payment)
Lienor (name and address from claim of lien)
Surety (name and address)
The undersigned joins in the Certificate of Payment to the Contractor recorded on , (year) , in Official Records Book at Page of the Public Records of County, Florida, and certifies that the facts stated in the Certificate of Payment to the Contractor are true and correct.
Dated this day of , (year) .
(Name)
(Address)
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .
(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
(7) The clerk shall serve the joinder in certificate of payment on the owner, the surety, and the lienor; certify to the service on the face of the joinder; record the joinder; and collect a fee in accordance with s. 713.23(2).
(8) If the contractor disputes the certificate of payment to the contractor, the contractor must record, not later than 15 days after the date the clerk certifies service of the certificate, a sworn statement in substantially the following form:
NOTICE OF CONTEST OF PAYMENT
TO: Owner (name and address from certificate of payment)
Lienor (name and address from claim of lien)
Surety (name and address)
Under penalties of perjury, the undersigned certifies that the contractor has not been paid or has only been paid $ for the labor, services, and materials described in the Certificate of Payment to the Contractor recorded in Official Records Book at Page of the Public Records of County, Florida.
Dated this day of , (year) .
(Name)
(Address)
STATE OF FLORIDA
COUNTY OF
Sworn to (or affirmed) and subscribed before me this day of , (year) , by (name of person making statement) .
(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
(9) The clerk shall serve a copy of the notice of contest of payment on the owner, the lienor, and the surety; certify service on the face of the notice; record the notice; and collect a fee in accordance with s. 713.23(2).
(10) If the contractor has signed the certificate of payment to the contractor or the joinder in the certificate or the contractor fails to record a notice of contest of payment within 15 days after the date the clerk certifies service of a certificate of payment to the contractor signed by the owner, the lien shall transfer to the bond to the extent of payment specified in the certificate of payment to the contractor. To the extent the lien exceeds the amount specified in the certificate of payment to the contractor, such amount shall remain as a lien on the owner’s property. The surety may assert all claims or defenses of the owner regarding the validity of the claim of lien or of the contractor regarding the amount due the lienor.
(11) If the notice of contest of payment specifies that the contractor has been paid a portion of the amount due the lienor, the lien shall transfer to the bond to the extent of the payment specified in the notice of contest of payment. To the extent the lien exceeds the amount specified in the notice of contest of payment, such amount shall remain as a lien on the owner’s property. The surety may assert all claims or defenses of the owner regarding the validity of the claim of lien or of the contractor regarding the amount due the lienor.
(12) If there are any material misstatements of fact made by the owner or the contractor in any certificate of payment to the contractor, or by the contractor in any notice of contest of payment, the person making the material misstatement is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The penalties apply individually and to the business entity if the false certificate is signed in a representative capacity.
(13) The certificate of payment to the contractor and the notice of contest of payment must be signed by the owner or the contractor individually if she or he is a natural person, by the general partner if the owner or the contractor is a limited partnership, by a partner if the owner or the contractor is a general partnership, by the president or a vice president if the owner or the contractor is a corporation, or by any authorized agent if the owner or the contractor is any other type of business entity.
(14) In an action to enforce a lien, the owner shall not be considered the prevailing party solely because the lien is transferred to a conditional payment bond after the action to enforce the lien is brought.
History.—s. 13, ch. 90-109; s. 9, ch. 92-286; s. 3, ch. 93-99; s. 58, ch. 95-211; s. 814, ch. 97-102; s. 16, ch. 98-246; s. 9, ch. 2001-211.
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