1 | The Transportation Committee recommends the following: |
2 |
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3 | Council/Committee Substitute |
4 | Remove the entire bill and insert: |
5 | A bill to be entitled |
6 | An act relating to nonjudicial sale of vessels; amending |
7 | s. 328.17, F.S.; revising notice requirements of a marina |
8 | having a possessory lien on a vessel for unpaid costs, |
9 | charges, or fees prior to nonjudicial sale of the vessel; |
10 | reducing the time allowed to pay the fees, charges, and |
11 | costs giving rise to the lien prior to sale of the vessel; |
12 | revising requirements with respect to perfection of and |
13 | priority over prior or other liens; providing an effective |
14 | date. |
15 |
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16 | Be It Enacted by the Legislature of the State of Florida: |
17 |
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18 | Section 1. Subsections (4), (5), (7), (10), (11), and (12) |
19 | of section 328.17, Florida Statutes, are amended to read: |
20 | 328.17 Nonjudicial sale of vessels.-- |
21 | (4) A marina, as defined in s. 327.02(19), shall have: |
22 | (a) A possessory lien upon any vessel for storage fees, |
23 | dockage fees, repairs, improvements, or other work-related |
24 | storage charges, and for expenses necessary for preservation of |
25 | the vessel or expenses reasonably incurred in the sale or other |
26 | disposition of the vessel. The possessory lien shall attach as |
27 | of the date the vessel is brought to the marina, or as of the |
28 | date the vessel first occupies rental space at the marina |
29 | facility. However, in the event of default, the marina must give |
30 | notice to persons who hold perfected security interests against |
31 | the vessel under the Uniform Commercial Code in which the owner |
32 | is named as the debtor. |
33 | (b) A possessory lien upon any vessel in a wrecked, |
34 | junked, or substantially dismantled condition, which has been |
35 | left docked, grounded, beached, or otherwise abandoned at a |
36 | marina without consent of the marina owner, for expenses |
37 | reasonably incurred in the removal and disposal of the vessel. |
38 | The possessory lien shall attach as of the date the vessel is |
39 | discovered at the marina facility. If the funds recovered from |
40 | the sale of such a vessel, or from the scrap or salvage value of |
41 | such a vessel, are insufficient to cover the expenses reasonably |
42 | incurred by the marina in removing and disposing of the vessel, |
43 | all costs in excess of recovery shall be recoverable against the |
44 | owner of the vessel. |
45 | (5) A marina's possessory lien may be satisfied as |
46 | follows: |
47 | (a)1. The marina shall provide written notice to the |
48 | vessel's owner, delivered in person or by certified mail to the |
49 | owner's last known address. The notice shall also be and |
50 | conspicuously posted at the marina and on the vessel. |
51 | 2. In addition to notice provided to the vessel owner |
52 | under subparagraph 1., the marina shall provide written notice |
53 | to each person or entity that: |
54 | a. Holds a security interest on the vessel as shown in the |
55 | records of the Department of Highway Safety and Motor Vehicles |
56 | with respect to state-titled vessels. |
57 | b. Holds a preferred ship mortgage or has filed a claim of |
58 | lien with the United States Coast Guard Vessel Documentation |
59 | Center. |
60 | c. Holds a security interest against the vessel under the |
61 | Uniform Commercial Code. |
62 | d. Has perfected a lien against the subject vessel by |
63 | filing a judgment lien certificate pursuant to s. 55.201-55.209. |
64 | 3. When a vessel displays a foreign country identification |
65 | or displays registration numbers from a state other than |
66 | Florida, the marina shall conduct a reasonable lien search of |
67 | the vessel registration records in the jurisdiction of registry |
68 | to determine if there is a lienholder who is entitled to notice |
69 | pursuant to subparagraph 2. Failure to discover a foreign |
70 | national or non-Florida United States lienholder after a good |
71 | faith effort to conduct such a lien search shall not prevent the |
72 | sale or removal of a vessel from the marina to satisfy the |
73 | marina's possessory lien or a purchaser, in good faith, from |
74 | taking title of the vessel, pursuant to subsections (7) and |
75 | (11). |
76 | 4. The requirements of subparagraph 2. shall be satisfied |
77 | if the marina: |
78 | a. Obtains a copy of the title for the vessel and trailer, |
79 | if applicable, from the Department of Highway Safety and Motor |
80 | Vehicles or other agency where the vessel is registered; |
81 | b. Obtains an abstract from the United States Coast Guard |
82 | for a vessel that is documented as defined in 46 U.S.C. s. |
83 | 301.01; |
84 | c. Performs a current Uniform Commercial Code lien search; |
85 | d. Performs a current Florida judgment lien certificate |
86 | search; and |
87 | e. Complies with subparagraph 3. with regard to vessels |
88 | registered in a foreign country or in a state other than |
89 | Florida. |
90 | 5. The written notice to the vessel owner and lienholders |
91 | required by this paragraph shall be made at least 60 days prior |
92 | to any sale of the vessel under this section recorded lienholder |
93 | of such vessel registered with this state as shown by the |
94 | records of the Department of Highway Safety and Motor Vehicles, |
95 | at least 30 days prior to the proposed sale. |
96 | (b) The notice shall include: |
97 | 1. An itemized statement of the marina's claim, showing |
98 | the sum due at the time of the notice and the date upon which |
99 | the sum became due. |
100 | 2. A description of the vessel. |
101 | 3. A demand for payment. |
102 | 4. A conspicuous statement that, unless the claim is paid |
103 | within the time stated in the notice, the vessel will be |
104 | advertised for sale or other disposition and will be sold or |
105 | otherwise disposed of at a specified time and place. |
106 | 5. The name, street address, and telephone number of the |
107 | marina that the owner may contact to respond to the notice. |
108 | (7) If the fees, and costs, and late payment interest that |
109 | give rise to such a lien are due and unpaid 60 120 days after |
110 | the vessel owner and lienholder are is given written notice, the |
111 | marina may sell the vessel, including its machinery, rigging, |
112 | and accessories as provided for in subsection (8) or the marina |
113 | may, at its option, remove the vessel from the marina or from |
114 | the waters of the state at the owner's expense pursuant to |
115 | paragraph (4)(b). |
116 | (10) Before any sale or other disposition of the vessel |
117 | pursuant to this section, the owner or the lienholder may pay |
118 | the amount necessary to satisfy the lien and the reasonable |
119 | expenses and late payment interest incurred under this section |
120 | and thereby redeem and take possession of the vessel. Upon |
121 | receipt of such payment, the marina shall return the property to |
122 | the owner or lienholder making such payment and thereafter shall |
123 | have no liability to any person with respect to such vessel. |
124 | (11) Unless otherwise provided by law, a purchaser in good |
125 | faith of a vessel sold to satisfy a lien provided for in this |
126 | section takes the property free of any claims other than a prior |
127 | lien perfected under state or federal law the Uniform Commercial |
128 | Code, despite noncompliance by the marina with the requirements |
129 | of this section. |
130 | (12) In the event of a sale under this section, the marina |
131 | may satisfy its lien from the proceeds of the sale, provided the |
132 | marina's lien has priority over all other liens on the vessel |
133 | other than a prior lien perfected under the Uniform Commercial |
134 | Code. The lien rights of secured lienholders are automatically |
135 | also attach transferred to the remaining proceeds of the sale. |
136 | The balance, if any, shall be held by the marina for delivery on |
137 | demand to the owner. A notice of any balance shall be delivered |
138 | by the marina to the owner in person or by certified mail to the |
139 | last known address of the owner. If the owner does not claim the |
140 | balance of the proceeds within 1 year after the date of sale, |
141 | the proceeds shall be deemed abandoned, and the marina shall |
142 | have no further obligation with regard to the payment of the |
143 | balance. In the event that the marina's lien does not have |
144 | priority over all other liens, the sale proceeds shall be held |
145 | for the benefit of the holders of those liens having priority. A |
146 | notice of the amount of the sale proceeds shall be delivered by |
147 | the marina to the owner or secured lienholder in person or by |
148 | certified mail to the owner's or the secured lienholder's last |
149 | known address. If the owner or the secured lienholder does not |
150 | claim the sale proceeds within 1 year after the date of sale, |
151 | the proceeds shall be deemed abandoned, and the owner or the |
152 | secured lienholder shall have no further obligation with regard |
153 | to the payment of the proceeds. |
154 | Section 2. This act shall take effect July 1, 2005. |