Notice of Nonpayment in Florida: The 90-Day Rule on Bonded Projects

By Dominic L. Scheer, Esq., Florida Bar No. 1022250 · Reviewed by Dominic L. Scheer, Esq. · Last updated October 8, 2026

Subcontractors and suppliers know the Notice to Owner. Fewer know that on a bonded project the Notice to Owner is only half the job, and that the document that actually gets them paid is the notice of nonpayment. Miss it, and the bond that was supposed to protect you owes you nothing. This article walks through section 713.23, Florida Statutes, with the deadlines, the contents, and the mistakes we see most.

First, is your project bonded?

Under section 713.02(6), an owner and contractor may agree that the contractor will furnish a payment bond under section 713.23. When they do, the owner is exempt from the rest of the lien law as to that contract (except for the contractor's own lien), and the bond "shall secure all liens subsequently accruing." In plain terms: you do not lien the property, you claim against the bond, and the bond is only as good as your notices.

You find out by reading the Notice of Commencement. Section 713.13 requires it to list the surety and the amount of the bond, and section 713.23(1)(a) requires a copy of the bond to be attached to the Notice of Commencement when it is recorded. If you cannot find it, demand a copy: the owner, the contractor, or the surety must give a true copy to any lienor who asks, at the cost of reproduction, and a party who refuses without justifiable cause is liable for the damages the refusal causes. Ask in writing and keep the request.

Step one: the notice to contractor, within 45 days

A lienor who does not have a contract with the general contractor (a sub-subcontractor or a supplier to a subcontractor, for example) must give the contractor written notice that it is looking to the bond for protection. Under section 713.23(1)(c), the notice is due before beginning, or within 45 days after beginning, to furnish labor, materials, or supplies. If the Notice of Commencement with the bond attached was not recorded before you started, the clock instead runs 45 days from the day you are served a copy of the bond. Laborers are exempt.

Two practical points. First, a Notice to Owner under section 713.06 that was timely served on the contractor satisfies this requirement, which is why a well-run subcontractor serves its NTO on everyone listed in the Notice of Commencement, every time. Second, this notice does not extend the one-year deadline to sue, described below.

Step two: the notice of nonpayment, within 90 days of final furnishing

This is the one that gets missed. Section 713.23(1)(d) makes it a condition precedent to any recovery under the bond: an unpaid lienor must serve a written notice of nonpayment on the contractor and a copy on the surety. The notice may be served during the work or after it, but no later than 90 days after the lienor's final furnishing of labor, services, or materials. For rental equipment, the 90 days run from the last date the equipment was on the site and available for use.

"Final furnishing" is a defined term under section 713.01. It is the last date you furnished labor, services, or materials to the job. It is not the certificate of occupancy, not substantial completion, and not the date you went back to fix a punch-list item. If you measure the 90 days from anything other than your own last day of real work, you are measuring wrong.

The notice must be under oath and must be in substantially the form the statute sets out. It states, to the contractor and the surety, with their names and addresses: a description of the labor, services, or materials you furnished; the amount unpaid to date and, separately, how much of that is retainage; the amount already paid and what it was for; and the labor or materials you still expect to furnish and the expected amount, if known. It is signed, with your address, before a notary.

Retainage gets its own rule. If the only thing you have not received is retainage of 10 percent or less of the value of what you furnished, the statute says that is not a nonpayment that requires the notice. Everything else does.

Honest mistakes versus fraud

Section 713.23(1)(d) treats the two differently. A lienor who serves a fraudulent notice of nonpayment, one that willfully exaggerates the amount or includes work not performed, forfeits its rights under the bond. But a minor mistake or a good-faith dispute about the amount owed is not willful exaggeration, and a negligent inclusion or omission that does not prejudice the contractor or surety does not defeat an otherwise valid claim. The lesson is to state the amount carefully and keep the backup, not to lowball yourself out of fear.

Step three: suit within one year

Under section 713.23(1)(e), an action against the contractor or the surety on the bond must be filed within one year after the lienor's last day of furnishing labor, services, or materials, and both notices must have been given first. The contractor can shorten that window by recording a Notice of Contest of Claim Against Payment Bond and serving it on you; after that you have 60 days to sue or the claim is extinguished automatically. Watch the mail.

Conditional payment bonds are different

Some projects carry a conditional payment bond under section 713.245. The title must say "conditional payment bond," and the contractor's obligation to pay you is conditioned on, and limited to, what the owner actually pays the contractor. On these projects your lien rights against the property are not replaced by the bond. Instead, after you record a claim of lien, the owner or contractor may record a notice of bond with a sworn certificate of payment within 90 days, which transfers your lien to the bond only to the extent the contractor has been paid for your work. If you see the word "conditional" on the bond, treat the job as a lien job and a bond job at the same time, and get advice before the 90 days run.

The mistakes we see most

• Serving the Notice to Owner and stopping. On a bonded job the NTO only covers step one.
• Counting 90 days from the wrong date. Final furnishing is your last day of work, not the project's.
• Serving the contractor but not the surety, or serving the surety at the wrong address. Use the addresses in the bond and the Notice of Commencement, and serve under section 713.18 so you can prove it.
• Skipping the notary. The notice must be sworn.
• Waiting for the contractor to "work it out." The deadline does not pause for promises.
• Missing a notice of contest that cut the one-year window to 60 days.

A simple calendar

On the day you start, serve your Notice to Owner on the owner, the contractor, and everyone listed in the Notice of Commencement, and pull a copy of the bond. On your last day of real work, calendar 90 days for the notice of nonpayment and one year for suit. Our construction lien deadline calculator computes the 90-day claim of lien date from your final furnishing date, and because the notice of nonpayment runs from the same day, that date is your bond deadline as well. If you are inside the last few weeks, call. A notice of nonpayment is a short document, and we prepare and serve them on a flat fee.

Related reading: the 45-day Notice to Owner rule, our construction lien practice, and the lien terms in our legal glossary.

Frequently Asked Questions

What is a notice of nonpayment in Florida?

The sworn written notice an unpaid subcontractor, sub-subcontractor, or supplier on a bonded project must serve on the contractor, with a copy to the surety, under section 713.23(1)(d), Florida Statutes. It is a condition precedent to recovering under the payment bond and must be served no later than 90 days after the lienor's final furnishing of labor, services, or materials.

Is the 90 days measured from the certificate of occupancy?

No. It runs from the lienor's own final furnishing, the last day that lienor furnished labor, services, or materials, as defined in section 713.01. The certificate of occupancy, substantial completion, and punch-list corrections do not move the date.

Do I still need a Notice to Owner on a bonded project?

If you have no contract with the general contractor, you must give the contractor notice within 45 days of starting that you are looking to the bond, under section 713.23(1)(c). A Notice to Owner under section 713.06 that was timely served on the contractor satisfies that requirement, so serving the NTO on everyone in the Notice of Commencement remains the right habit.

What if I only have retainage outstanding?

Under section 713.23(1)(d), failing to receive retainage of 10 percent or less of the value of what you furnished is not a nonpayment that requires the notice. Any other unpaid amount does.

How long do I have to sue on the bond?

One year after your last day of furnishing labor, services, or materials, under section 713.23(1)(e), and only after both notices were given. If the contractor records and serves a Notice of Contest of Claim Against Payment Bond, the window closes 60 days after service.