Effective October 1, 2019, Florida law changed with respect to giving Notices of Nonpayment (NONP) on any project where there is a payment bond. The two statutes involved are Section 255.05 and Section 713.23. Both have now changed as follows:
1. The statutes now set forth the exact language that must be used for an NONP. So, all forms used for the NONP to be changed immediately to reflect the exact language and information required for the NONP.
2. Notices of nonpayment cannot now be “willfully exaggerated.” By this, it’s meant that you cannot make a claim on a bond that inflates the amount that is unpaid, include work that has not been performed or materials that were not furnished, or otherwise prepare the notice with a lack of care such that you overstate the claim. This is viewed now as a fraudulent claim of nonpayment and invalidates all rights to recover under the bond.
3. Notices of nonpayment now have to be notarized.
4. The NONP must state the exact amount that is unpaid to date and breakout how much exactly of the amount claimed is unpaid retainage. It also requires you to state exactly how much you have been paid to date and how much you anticipate providing in the future.
If you have questions, contact Tony Lehman, our Florida Board Certified Lawyer in Construction Law.