Florida Notice of Nonpayment: 90-Day Deadline and Service Rules

On a bonded Florida construction project, a Notice of Nonpayment is the sworn document an unpaid subcontractor, supplier, or laborer must serve on both the general contractor and the surety within 90 days after last furnishing labor, services, or materials. Miss that 90-day window under Florida Statutes Section 713.23, or skip the requirement that the notice be sworn before a notary, and the right to collect from the payment bond is gone.¹

What the Notice Protects

A payment bond is insurance the general contractor buys before work starts, guaranteeing that subcontractors and suppliers get paid even if the contractor defaults. Under Section 713.23, the bond must be at least the amount of the original contract price and must be issued by a surety authorized to do business in Florida. When the bond is properly recorded with the notice of commencement, it replaces the property owner’s exposure: instead of filing a lien against the real estate, unpaid parties look to the bond.¹

Serving the Notice of Nonpayment is a condition precedent to recovering under that bond. No notice, no claim. The statute is unambiguous on this point.

Who Has to Serve It, and the Earlier 45-Day Notice

Any lienor who furnished labor, services, or materials to the bonded job and has not been paid can serve a Notice of Nonpayment. That includes subcontractors, sub-subcontractors, material suppliers, and equipment rental companies. Laborers are also eligible.¹

If you don’t have a direct contract with the general contractor, though, the 90-day notice isn’t the first deadline you face. You also have to serve a preliminary notice telling the contractor you intend to look to the bond. That preliminary notice has to go out either before you begin furnishing labor or materials, or within 45 days after you begin. If no notice of commencement was recorded, or the recorded notice didn’t reference the bond, and no one told you about the bond in writing, the 45-day clock starts when you first learn the bond exists. Laborers are exempt from this preliminary notice.¹

Both notices are mandatory for anyone not in privity with the contractor. Florida law forbids any lawsuit against the contractor or surety on the bond unless both have been served. Skip either, and the bond claim is lost.¹

The 90-Day Deadline

The Notice of Nonpayment must be served no later than 90 days after the last day you furnished labor, services, or materials to the project. For rental equipment, the clock starts from the last date the equipment was on site and available for use. You can serve the notice during the course of the work or after it’s finished, so long as you’re inside that 90-day window.¹

One carve-out. If the only amount outstanding is retainage of 10 percent or less of the total value of your work or materials, you’re not required to serve the notice. Retainage holdbacks are standard in construction and aren’t treated the same as outright nonpayment.¹

Pinning down the exact last-furnishing date matters more than most people think. If you delivered materials on three separate dates, only the last one drives the deadline. Keep delivery receipts, signed work logs, and time-stamped photos. When the dispute finally hits a courtroom, memory won’t be enough.

What the Notice Must Say and the Oath Requirement

The notice has to be under oath, meaning sworn to or affirmed before a notary public. That’s not optional. Section 713.23 sets out a specific form the notice must substantially follow, and that form includes a notary block where the signer attests the contents are true.¹

The statutory form requires the following information, current as of the date of the notice:

The contractor and surety names and addresses. The notice is addressed to both.
A description of the labor, services, or materials you furnished for the improvement.
A description of the real property where the work was performed, in enough detail to identify it.
The total unpaid amount, with unpaid retainage broken out separately.
The amount already paid to date for work previously furnished.
If known, a description of any labor or materials you expect to furnish going forward, along with the expected amount due.

Because the statute uses a “substantially the following form” standard, word-for-word matching isn’t required, but every required information point has to be there. A negligent mistake or omission that doesn’t actually prejudice the contractor or surety won’t defeat an otherwise valid claim. Even so, following the statutory form exactly is safer than testing how much slack a court will give.

Fraudulent Notices Wipe Out the Claim

Good-faith disputes about the amount owed won’t sink your claim. A fraudulent notice will. A lienor who serves a fraudulent Notice of Nonpayment forfeits all rights under the bond. The statute treats a notice as fraudulent when the lienor willfully exaggerated the unpaid amount, knowingly included claims for work not actually performed or materials not delivered, or prepared the notice with gross negligence that amounts to willful exaggeration.²

Serving a fraudulent notice is a complete defense for the contractor and surety. Even if you’re genuinely owed money, inflating the figure or padding the notice with unrelated claims can wipe out the entire bond claim. State only what you can document.

How to Serve It

The notice has to reach both the contractor and the surety. Florida Statutes Section 713.18 governs how documents under Chapter 713 can be delivered and sets out three acceptable methods:

Hand delivery, either directly to the person, to a partner, to a corporate officer or director, to a member or manager of an LLC, or to an authorized employee or agent.
Mail or carrier service, by registered mail, Global Express Guaranteed, certified mail, or common carrier delivery, with postage or shipping prepaid and evidence of delivery. Electronic delivery records are acceptable.
Posting on site, allowed only if hand delivery and mail service can’t be accomplished.

Certified mail with return receipt requested is a common choice, but it isn’t the only one. FedEx or UPS work too, as long as you keep proof of delivery. Whatever method you pick, hold onto copies of the notice, the proof of mailing or shipment, and any tracking confirmations. Those records are your evidence if the contractor or surety later claims the notice never arrived.

After You Serve: The Lawsuit Clock and the Contest Trap

Serving the Notice of Nonpayment preserves your claim. It doesn’t collect on it. To actually get paid, you have to file a lawsuit against the contractor or surety. The default deadline is one year from the last day you furnished labor or materials to the project.¹

That one-year window can be cut short. After receiving your Notice of Nonpayment, the contractor or the contractor’s attorney may record a Notice of Contest of Claim Against Payment Bond. Once that contest is served on you, the deadline to file suit shrinks to 60 days. Miss it, and the claim is automatically extinguished. This is one of the most dangerous traps in Florida construction law, because a claimant who isn’t watching the mail can lose everything without realizing the clock had restarted.¹

This Is Not the Mechanics Lien Process

A Notice of Nonpayment under Section 713.23 belongs to the bond claim track only. It does nothing to preserve a mechanics lien. The lien process under Chapter 713 Part I has its own notices: parties not in privity with the owner have to serve a Notice to Owner under Section 713.06 before or within 45 days of first furnishing, and any lien claimant then has to record a Claim of Lien within 90 days of last furnishing.⁴

On projects where a qualifying payment bond was recorded with the notice of commencement, the bond typically replaces lien rights against the property, and the bond claim track becomes the path forward. On projects without a qualifying bond, the lien track applies instead. Figuring out which track you’re on before deadlines start running is the first thing to do.

Federal Projects Follow the Miller Act

If the job is a federal construction project rather than a state or private one, Section 713.23 doesn’t apply. The federal Miller Act does. It requires payment bonds on federal contracts over $100,000 and sets its own rules.

Subcontractors and suppliers who contracted directly with the general contractor don’t have to give any written notice before suing on the Miller Act bond. Second-tier parties without a direct contract with the general contractor must serve written notice on the contractor within 90 days after last furnishing labor or materials, stating the amount claimed and identifying who they worked for or supplied.⁵

A Miller Act lawsuit has to be filed within one year after the last day of furnishing, in the U.S. District Court for the district where the project sits, brought in the name of the United States for the use of the person suing. The federal government has no liability for the suit’s costs or expenses.⁵

Key Deadlines at a Glance

45 days from first furnishing: preliminary notice to contractor for parties not in direct privity (bond claims), or Notice to Owner for lien claims.
90 days from last furnishing: sworn Notice of Nonpayment served on contractor and surety.
90 days from last furnishing: record a Claim of Lien (separate lien track, not bond claims).
1 year from last furnishing: default deadline to sue on the payment bond.
60 days after a Notice of Contest: shortened deadline to sue if the contractor contests the bond claim.

Every one of these is a hard deadline. Courts don’t grant extensions for good intentions or for ongoing settlement talks. Calendar each date the moment you know your first and last furnishing dates, and treat them as fixed no matter how promising the negotiations look.

1
The Florida Legislature. Florida Statutes Section 713.23 – Payment Bond
2
Florida Senate. Florida Statutes Section 713.23 – Payment Bond
3
The Florida Legislature. Florida Statutes Section 713.18 – Manner of Serving Documents
4
Justia Law. Florida Statutes 713.06 – Liens of Persons Not in Privity
5
Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material