More Requirements; More Notices.

The Florida Legislature continues to enact laws geared to protect consumers in a construction setting.  With the latest notice requirements, alerting homeowners to their rights under Florida Homeowners' Construction Recovery Fund, contractors, materialmen and design professionals are now faced with incorporating three such warnings in their contract documents.

Pursuant to Florida Statute 489.1425, any agreement or contract for repair, restoration, improvement, or construction to residential real property must contain a written statement explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund, except where the value of all labor and materials does not exceed $2,500.  The written statement must be substantially in the following form:

FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND

PAYMENT MAY BE AVAILABLE FROM THE FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A LICENSED CONTRACTOR.  FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS:

FLORIDA HOMEOWNERS' CONSTRUCTION RECOVERY FUND
1940 N. MONROE STREET, SUITE 60
TALLAHASSEE, FL 32399-1030
850.487.1395 (DBPR)
DIRECT LINE 850.921.6593

As well, any direct contract between an owner and a contractor, related to improvements to real property consisting of single or multiple family dwellings up to and including four units, must contain the following provision printed in no less than 18-point, capitalized, boldfaced type, this pursuant to Florida Statute 713.015:

ACCORDING TO FLORIDA'S CONSTRUCTION LIEN LAW (SECTIONS 713.001-713.37, FLORIDA STATUTES), THOSE WHO WORK ON YOUR PROPERTY OR PROVIDE MATERIALS AND ARE NOT PAID IN FULL HAVE A RIGHT TO ENFORCE THEIR CLAIM FOR PAYMENT AGAINST YOUR PROPERTY.  THIS CLAIM IS KNOWN AS A CONSTRUCTION LIEN.  IF YOUR CONTRACTOR OR A SUBCONTRACTOR FAILS TO PAY SUBCONTRACTORS, SUB-SUBCONTRACTORS, OR MATERIAL SUPPLIERS OR NEGLECTS TO MAKE OTHER LEGALLY REQUIRED PAYMENTS, THE PEOPLE WHO ARE OWED MONEY MAY LOOK TO YOUR PROPERTY FOR PAYMENT, EVEN IF YOU HAVE PAID YOUR CONTRACTOR IN FULL.  IF YOU FAIL TO PAY YOUR CONTRACTOR, YOUR CONTRACTOR MAY ALSO HAVE A LIEN ON YOUR PROPERTY.  THIS MEANS IF A LIEN IS FILED YOUR PROPERTY COULD BE SOLD AGAINST YOUR WILL TO PAY FOR LABOR, MATERIALS, OR OTHER SERVICES THAT YOUR CONTRACTOR OR A SUBCONTRACTOR MAY HAVE FAILED TO PAY.  FLORIDA'S CONSTRUCTION LIEN LAW IS COMPLEX AND IT IS RECOMMENDED THAT WHENEVER A SPECIFIC PROBLEM ARISES, YOU CONSULT AN ATTORNEY.

Finally, pursuant to Fla. Stat. 558.005, upon entering into a contract for the sale, design, construction, or remodeling of a dwelling, the subcontractor, supplier, or design professional shall provide notice to the owner of the dwelling of the contractor's, subcontractor', supplier's, or design professional's right to offer to cure construction defects or pay to settle alleged construction defects before a claimant may commence an action against the contractor, subcontractor, supplier, or design professional.  Such notice must be conspicuous and may be included as part of the contract.  The notice must be in substantially the following form:

CHAPTER 558, FLORIDA STATUTES CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME.  SIXTY DAYS BEFORE YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS CONTRACT A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER  MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS.  YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE.  THERE ARE STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS.

In addition to Florida state law, contractors, materialmen, and design professionals engaged in projects in Miami-Dade County, (except those participating in federal, state, city, or other public agency contracts), must comply with the disclosure requirements of the Miami-Dade Municipal Code.

Pursuant to Section 10-33 of the Miami-Dade Municipal Code, the contractor must include the following notice, printed in 10-point bold-faced type:

WARNING TO OWNER: UNDER FLORIDA LAW, YOUR FAILURE TO MAKE SURE THAT THE FOLLOWING PERSONS ARE PAID MAY RESULT IN A LIEN AGAINST YOUR PROPERTY AND YOUR PAYING TWICE, TO AVOID A LIEN AND PAYING TWICE, YOU MUST OBTAIN A WRITTEN RELEASE FROM THE PERSONS LISTED BELOW EVERY TIME YOU PAY YOUR CONTRACTOR:

Following the above notice, the contractor must list all known subcontractors and materialmen to be used in the project, any person that contractor knows has served a Notice to Owner, and any other persons known to contractor who would be entitled to a construction lien on the property.  The contractor need not list any subcontractors or materialmen whose services or materials do not exceed $250.00.  The contractor must list the subcontractors' and materialmen's known addresses and telephone numbers as well.

The contractor is under the obligation to update the above information within thirty(30) days of any changes.

Moreover, pursuant to Section 10-33.1 of the Miami-Dade Municipal Code, contractors, materialmen, and design professionals working on residential projects in excess of $5000.00 contract value, and which projects involve obtaining permits, must include the following notice, printed in 12-point type:

YOU ARE ADVISED THAT THE COUNTY CONSTRUCTION TRADES QUALIFYING BOARD AND THE BUILDING AND ZONING DEPARTMENT OF MIAMI-DADE COUNTY, AND THE STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION MAY HAVE INFORMATION ON FILE CONCERNING THE FINANCIAL RESPONSIBILITY AND ANY COMPLAINTS AND INVESTIGATIONS PERTAINING TO THE WORK OF THIS CONTRACTOR.  THE PUBLIC RECORDS OF THE COUNTY ARE AVAILABLE FOR INSPECTION AND COPYING.

YOU ARE ALSO ADVISED THAT THIS CONTRACTOR HAS PUBLIC LIABILITY INSURANCE AND WORKERS' COMPENSATION INSURANCE THROUGH [NAME OF INSURERS] UNDER POLICY NUMBERS [NUMBERS], WITH EXPIRATION DATES OF [DATES] AND LIMITS OF LIABILITY IN THE AMOUNTS OF [NUMBERS].

YOU ARE ADVISED THAT IN ORDER TO PROTECT YOURSELF, YOU MAY REQUEST THAT THIS CONTRACT ALLOWS FOR PAYMENTS OT THE CONTRACTOR TO BE CONDITIONED UPON THE CONTRACTOR OBTAINING AND PASSING MANDATORY INSPECTIONS.

YOU ARE ADVISED THAT YOU MAY PAY THE COST OF PURCHASING A CONTRACTOR'S PAYMENT BOND OR OTHER SECURITY, TO COVER PAYMENTS TO SUBCONTRACTORS AND MATERIAL SUPPLIERS, IN THE EVENT THIS CONTRACTOR FAILS TO DO SO.  A COPY OF THOSE DOCUMENTS WHICH PROTECT YOU WILL BE FURNISHED UPON REQUEST, IF YOU SO WISH TO PURCHASE SUCH PROTECTION.

YOU ARE ADVISED THAT IN ORDER TO PROTECT YOURSELF, YOU MAY REQUEST THAT THIS CONTRACT CONTAIN A WORK COMPLETION DATE.  IN THE ABSENCE OF A COMPLETION DATE, YOU MAY REQUEST THAT INTERIM MILESTONES OR TIME PERIODS BE ESTABLISHED FOR COMPLETION OF PORTIONS OF THE WORK.

WITH LIMITED EXCEPTIONS PROVIDED BY LAW, THE WORK YOU ARE CONTRACTING FOR MUST BE PERFORMED BY A STATE OF FLORIDA CERTIFIED CONTRACTOR OR A MIAMI COUNTY CERTIFIED CONTRACTOR WHO IS ALSO REGISTERED WITH THE STATE.

YOU ARE FURTHER ADVISED THAT IF, AFTER OBTAINING A PERMIT FOR THE WORK, YOUR CONTRACTOR TERMINATES THIS PROJECT WITHOUT JUST CAUSE OR FAILS TO PERFORM WORK WITHOUT JUST CAUSE FOR 30 CONSECUTIVE DAYS, THE PROJECT MAY BE CONSIDERED ABANDONED.  ABANDONMENT CONSTITUTES A PENALTY FOR WHICH A CONTRACTOR MAY BE DISCIPLINED BY THE STATE OR BY THE COUNTY.

 

© 2008, The Barthet Firm