Previously in this series, the Notice to Contractor condition precedent was discussed in the context of actions in connection with payment bonds. In addition to the Notice to Contractor, Section 713.23(1)(d) of Florida’s Construction Lien Law requires a lienor, as a condition precedent to recovery under a payment bond, to serve a written “Notice of Nonpayment” to the contractor and the surety not later than 90 days after the final furnishing of labor, services, or materials by the lienor. A written 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 written Notice of Nonpayment shall be measured from the last day of furnishing labor, services, or materials by the lienor and shall 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 is not considered a nonpayment requiring the service of the notice of nonpayment. 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. The notice may be in substantially the following form:

 NOTICE OF NONPAYMENT

(name of contractor and address) 

(name of surety and address) 

The undersigned notifies you that he or she has furnished   (describe labor, services, or materials)   for the improvement of the real property identified as   (property description)  . The amount now due and unpaid is $____ .

If a lienor fails to deliver a notice of nonpayment to the contractor and surety in accordance with the provisions of Fla. Stat. § 713.23(1)(d), no suit may be brought on the bond. See Standard Heating Service, Inc. v. Guymann Const., Inc., 459 So. 2d 1103 (Fla. 2d DCA 1984). As such, unless a lienor timely provides both a Notice to Contractor and Notice of Nonpayment, no action can be maintained against a contractor or surety. Fla. Stat. § 713.23(1)(e). Assuming compliance with the notice requirements, Fla. Stat. 713.23(1)(e) limits the time period for bringing an action on a bond to one year after the provision of labor, material, or supplies by the lienor.

__________________________________________________________________________________________________

W Mason is an associate with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W focuses his practice on commercial litigation throughout Florida, with an emphasis on construction litigation. You can reach W at (561) 804-4432 or wmason@foxrothschild.com. Below are some recent posts W has written on Florida Construction Lien Law: