Florida Attorney Archives - Wetherington Hamilton, P.A.

Recent Changes to Florida’s Construction Lien Statute and Public Bonded Projects – Changes to Florida Statute section 255.05

By: Theodore J. Hamilton, Esq.

The Florida law for a subcontractor, equipment lessor or materialman to perfect a claim on a public construction bond recently changed. Law of Florida 2019-94: see link here: http://laws.flrules.org/2019/94 Florida Statute section 255.05 governs the process to be followed to claim on a bond on a public construction project with a public entity in the State of Florida. This section does not apply to Federally Bonded projects. The changes focus primarily in two areas:

The new law requires the Notice of Non-Payment to be signed under oath before a notary;
The new law adds a penalty of non-enforce-ability if it is determined the notice of non-payment is willfully exaggerated in its amount; and
The new law confirms that the time frame for serving the notice of non-payment for rental equipment is 90 days after the last date the rental equipment was on the job site and available for use.

The Notice of Non-Payment must now be under oath.

The new Florida Statutes 255.05 provides a form of a Notice of Non-Payment. This form must now provide for a notary to confirm that the person signing the Notice did so under oath. The new form must be “substantially” followed and must include the oath. Without the required elements the claimant risks making the notice invalid.

The new law adds a penalty of non-enforcement if the notice of non-payment is willfully exaggerated in its amount.

The Notice of Non-Payment must be accurate. To be fraudulent the Notice would either be (1) willfully exaggerated as to the amounts due; (2) willfully include a claim for work not performed or materials not furnished; or (3) prepared the notice of nonpayment with willful and gross negligence, which results in a willful exaggeration. Ultimately, the notice needs to be accurate. This new provision will give owners a defense should the Notice contain willful errors.

The new law confirms the time frames for an equipment rental supplier to serve the notice of non-payment.

For equipment rental suppliers, the new statutory changes make it 100% clear that the notice of non-payment must be served no later than 90 days after the last date the rental equipment was on the job site and available for use. Thus, if the equipment is on the site, but broken down, the 90 days would run from the date it was last usable. These changes, clarify some ambiguities created by conflicting decisions in the Florida Courts as to the last day available to serve the Notice in such a situation.

Conclusion:

This is just a brief summary and not a complete review of each situation. It highlights one of the changes in the last year to the Construction Lien provisions in Florida. For further information contact our office.

Have you heard why sharks won’t attack lawyers? Professional courtesy! (insert laugh here). We have all heard jokes about lawyers referencing their behavior as aggressive, unprofessional, offensive, shady, etc. This may come as a surprise to some, but as attorneys, we are bound by Rules of Professional Conduct. In order to become a member of the Florida Bar, in addition to passing the bar exam and an extensive background check, each new attorney takes an Oath of Admission. In 2011, as a result of concerns over increased lack of civility among those who are members of the legal profession in our state, the Florida Supreme Court added the following language to the Oath of Admission**:

“…To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;…”

I was surprised to learn that this language was being included in the Oath of Admission of such a noble profession. I remember the day I learned that I had passed the Florida Bar as being one of the best days of my life; I was being admitted to a respected and noble profession! To me, common sense would dictate acting with fairness, integrity and civility. I try to live my personal and professional life this way, and enjoying professional relationships with other attorneys is one of the many reasons I enjoy the practice of law. Just this afternoon I had the pleasure of speaking with opposing counsel on a case that is set for trial next month. The conversation was pleasant and professional as it should have been, and we are attempting to resolve the case without the need for trial. This type of professional dialogue with other professionals is one of the many reasons that I enjoy the practice of law.

I have dealt with many personality types during my tenure as an attorney. Fortunately, most attorneys with whom I have dealt practice law with fairness, integrity and civility. Of course, there are those who do not, which is unfortunate. But this noble profession, like all others, has its good eggs and not so good ones. The attorneys at Wetherington Hamilton, P.A. practice law with the utmost professionalism, including fairness, integrity and civility…nothing less!

**Supreme Court of Florida, No. SC11-1702, In Re: Oath of Admission to the Florida Bar, September 12, 2011

Joan W. Wadler has been a member of the Florida Bar since 1991. Her practice concentrates on Collections and Commercial Litigation, Real Estate Litigation and Associations Law. She can be reached at (813) 676-9082 or JoanW@whhlaw.com

Recent Changes to Florida’s Construction Lien Statute and Public Bonded Projects – Changes to Florida Statute Section 255.05

The Importance of Professional Courtesy in the Practice of Law

Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.

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Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.