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Did you know?...
A
Notice of Commencement is required for the construction,
improvements to or for the alteration or repair of improvements to
real property. Florida
Statutes, 713.01 provides the following definition.
713.01
(10) "Improve" means build, erect, place, make, alter,
remove, repair, or demolish any improvement over, upon, connected
with, or beneath the surface of real property, or excavate any
land or furnish materials for any of these purposes, or perform
any labor or services upon the improvements, including the
furnishing of carpet or rugs or appliances that are permanently
affixed to the real property; or perform any labor or services or
furnish any materials in grading, seeding, sodding, or planting
for landscaping purposes, including the furnishing of trees,
shrubs, bushes, or plants that are planted on the real property,
or in equipping any improvement with fixtures or permanent
apparatus.
713.01
(11) "Improvement"
means any building, structure, construction, demolition,
excavation, landscaping, or any part thereof existing, built,
erected, placed, made, or done on land or other real property for
its permanent benefit.
As
of January 1, 1991, the State of Florida made numerous changes to
the requirements for property owners when making improvements to
their property. The
numerous requirements are mandatory according to Florida
Law, and are not County requirements, therefore, the County
must be in compliance at all times.
The
State mandates that no inspections shall be approved without the
Notice of Commencement being posted. This requirement applies to
all permitted work regardless of building valuation or funding
source.
The
Notice of Commencement shall be recorded in the office of the
Clerk of the Circuit Court in which the real property is located. A certified copy of the Notice
of Commencement must be posted on the property.
The property owner must sign the Notice of Commencement and
no one else may be permitted to sign in his stead.
The
Clerk's Office is not permitted, by law, to assist the public in
completing the Notice of Commencement forms, nor does the Clerk's
Office supply these forms. The
forms may be obtained through an office supply store, or may be
provided by your attorney, lending institution or obtained from
the Charlotte County Building Department.
Upon
completion of the Notice of Commencement, the Clerk's Office does
provide notary service for the owner to sign in the presence of a
notary. The property
owner's name must be notarized, prior to recording the document.
The
Notice of Commencement must conform with the requirements of F.S.
713.13 which are as follows:
(A)
An owner or his authorized agent before actually commencing
to improve any real property, or recommencing completion of
any improvement after default or abandonment, whether or not a project has a payment bond complying with s. 713.23, shall
record a Notice of Commencement in the Clerk's Office and
forthwith post a certified copy thereof containing the
following information:
(1) A description sufficient
for identification of the real Property to be improved. The
description should include the legal description of the property
and also should include the street address of the property if
available or, if there
is
no street address available, such additional information as will
describe the physical location of the real property to be
improved.
(2) A general description of the improvement.
(3) The name and address of the owner, his interest in the site
of the improvement, and the name and address of the fee simple
titleholder, if other than such owner.
(4) The name and address of the contractor.
(5) The name and address of the surety on the payment bond
under s. 713.23, if any, and the amount of such bond.
(6) The name and address of any person making a loan for the
construction of the improvements.
(7) The name and address within the state of a person other
than himself who may be designated by the owner as the person upon
whom notices or other documents may be served under this part; and
service upon the person so designated constitutes service upon the
owner.
(b)
The owner, at his option, may designate a person in
addition to himself to receive a copy of the lienor's notice as
provided in s. 713.06(2)(b), and if he does so, the name and
address of such person must be included in the Notice of
Commencement.
(c)
If the contract between the owner and a contractor named in
the Notice of Commencement expresses a period of time for
completion for the construction of the improvement greater than
one (1) year, the Notice of Commencement must state that it is
effective for a period of one (1) year plus any additional period
of time. Any payments
made by the owner after the expiration of the Notice of
Commencement are considered improper payments.
(d)
A Notice of Commencement must be in substantially the
following form:
Commencement Form
(e)
A copy of any bond must be attached at the time of recordation of
the Notice of Commencement. The
failure to attach a copy of the bond to Notice of Commencement
when the Notice is recorded negates the exemption provided in
s. 713.02(6). However,
if such a bond exists but is not recorded, the bond may be used as
a transfer bond pursuant to s. 713.24.
(f)
The giving of a Notice of Commencement is effective upon the
filing of the Notice in the Clerk's Office.
(g)
The owner must sign the Notice of Commencement and no one else may
be permitted to sign in his stead.
(2)
If the improvement described in the Notice of Commencement is not
actually commenced within 90 days after the recording thereof,
such Notice is void and of no further effect.
(3)
The recording of a Notice of Commencement does not constitute a
lien, cloud, or encumbrance on real property, but gives
constructive notice that claims of lien under this part may be
recorded and may take priority as provided in s. 713.07. The
posting of a copy does not constitute a lien, cloud or encumbrance
on real property, nor actual or constructive notice of any of
them.
(4)
This section does not apply to an owner who is constructing
improvements described in s. 713.04.
(5)
Unless otherwise provided in the Notice of Commencement of a new
or amended Notice of Commencement, a Notice of Commencement, is
not effectual in law or equity against a conveyance, transfer, or
mortgage of or lien on the real
property described in the notice, or against creditors or
subsequent purchasers for a valuable consideration, after one (1)
year after the date of recording the Notice of Commencement.
(6)
A lender must, prior to the disbursement of any
Construction funds to the contractor, record the Notice of
Commencement in the Clerk's Office as required by this
section; however, the lender is not required to post a certified copy of the Notice at the construction site.
The posting of the Notice at the construction site
remains the owner's obligation.
The failure of a lender to record the Notice of
Commencement as required by this subsection renders the lender
liable to the owner for all damages sustained by the owner as a
result of the failure.
Whenever a lender is required to record a Notice of
Commencement, the lender shall designate the lender, in addition
to others, to receive copies of notice to owner.
This subsection does not give any person other than the
owner a claim or right of action against a lender for failure to
record a Notice of Commencement.
You
may chose to consult an attorney before recording the Notice of
Commencement, to safeguard your rights.
The
State of Florida also created a new law which allows the property
owner to terminate the period of effectiveness on a Notice of
Commencement.
F.S.
713.132 provides all the requirements in order to terminate your
Notice of Commencement.
713.132
Notice of Termination
(1)
An owner may terminate the period of effectiveness of a Notice of
Commencement by executing, swearing to, and recording a Notice of
Termination that contains:
(a) The same information as the Notice of Commencement;
(b)
The recording office document book and page reference numbers
and date of the Notice of Commencement;
(c)
A statement of the date as of which the Notice of Commencement
is terminated, which date may not be earlier than 30 days after
the Notice of Termination is recorded;
(d)
A statement specifying that the notice applies to all the real
property subject to the Notice of Commencement or specifying the
portion of such real property to which it applies; and
(e)
A statement that all lienor have been paid in full.
(2)
An owner has the right to rely on a contractor's affidavit given
under s. 713.06(3)(d), except with respect to lienor who have
already given notice, in connection with the execution, swearing
to, and recording of a Notice of Termination.
However, the Notice of Termination must be accompanied by
the contractor's affidavit.
(3)
An owner may not record a Notice of Termination except after
completion of construction and all lienor have been paid in full
or pro rata in accordance with s. 713.06 (4).
If an owner or a contractor, by fraud or collusion,
knowingly makes any fraudulent statement of affidavit in a Notice
of Termination or any accompanying affidavit, the owner and the
contractor, or either of them, as the case may be, is liable to
any lienor who suffers damages as a result of the filing of the
fraudulent Notice of Termination; and any such lienor has a right
of action for damages occasioned thereby.
(4)
A Notice of Termination is effective to terminate the Notice of
Commencement at the later of 30 days after recording of the Notice
of Termination as the date on which the Notice of Commencement if
terminated.
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Charlotte County,
FL
