HB 1459

1
A bill to be entitled
2An act relating to liens on commercial real estate;
3creating part III of ch. 475, F.S., the "Commercial Real
4Estate Sales Commission Lien Act"; providing definitions;
5specifying conditions under which a broker is entitled to
6a lien upon the owner's net proceeds from the disposition
7of commercial real estate for any commission earned by the
8broker under a brokerage agreement; providing that the
9lien cannot be assigned, enforced, or waived by anyone
10other than the broker; requiring disclosure; providing for
11the contents of the commission notice and delivery to
12certain parties; providing a form for the commission
13notice; providing that a lien may not be enforced if the
14notice is not delivered to certain parties; providing that
15the commission notice may be recorded; providing for
16expiration and extension under certain conditions;
17providing for release of the commission notice under
18certain conditions; providing the duties of the closing
19agent; requiring the closing agent to reserve an owner's
20proceeds under certain conditions; providing for the
21release of proceeds under certain conditions; requiring
22deduction of certain costs from the proceeds; providing
23for interpleader or other legal proceedings sought by a
24closing agent to adjudicate certain rights; providing for
25the deposit of reserved proceeds in a court registry;
26providing for the discharge of the closing agent from
27further liability; providing for a civil action if a
28dispute arises concerning the proceeds; providing that the
29prevailing party may recover certain fees and costs
30incurred in a civil action; establishing the priority of a
31recorded commission notice; providing for the service of
32notice; providing that a buyer's broker is not entitled to
33a lien; providing certain conditions under which a buyer's
34broker may seek payment of a commission; creating part IV
35of ch. 475, F.S., the "Commercial Real Estate Leasing
36Commission Lien Act"; providing definitions; providing
37conditions under which a broker may place a lien upon an
38owner's interest in commercial real estate for any
39commission earned under a brokerage agreement with respect
40to a lease of commercial real estate; providing that the
41lien cannot be assigned, enforced, or waived by anyone
42other than the broker; requiring disclosure; providing for
43the contents of the lien notice; providing a form for the
44lien notice; providing that the lien notice may be
45recorded; providing that a lien may not be enforced if the
46broker fails to record the notice; providing for
47effectiveness of a recorded lien notice; providing for
48release of the lien notice under certain conditions;
49providing for expiration and extension under certain
50conditions; providing for foreclosure of a recorded lien
51under certain conditions; providing a form; providing for
52a civil action if a dispute arises concerning the
53proceeds; providing that the prevailing party may recover
54certain fees and costs incurred in a civil action;
55providing procedures to transfer a lien to a security;
56providing that the clerk of court may collect a service
57charge; providing for subordination of a broker's lien;
58amending s. 475.42, F.S.; providing that a broker may
59place a lien when allowed by law; providing an effective
60date.
61
62Be it Enacted by the Legislature of the State of Florida:
63
64     Section 1.  Part III of chapter 475, Florida Statutes,
65consisting of sections 475.700, 475.701, 475.703, 475.705,
66475.707, 475.709, 475.711, 475.713, 475.715, 475.717, and
67475.719, is created to read:
68     475.700  Popular name.--Sections 475.700-475.719 may be
69cited as the "Commercial Real Estate Sales Commission Lien Act."
70     475.701  Definitions.--As used in this part:
71     (1)  "Broker" has the same meaning as in s. 475.01.
72     (2)  "Brokerage agreement" means a written contract entered
73into on or after the effective date of this act between an owner
74of commercial real estate and a broker that obligates the owner
75to pay a commission to the broker for licensed services provided
76by the broker relating to the sale or disposition of the
77commercial real estate as specified in the contract.
78     (3)  "Closing" means the delivery, exchange, and release of
79documents and funds for the completion of a transaction for the
80disposition of commercial real estate.
81     (4)  "Closing agent" means the person who receives
82documents and funds for recording and disbursement in closing a
83transaction for the disposition of commercial real estate.
84     (5)  "Commercial real estate" means a fee simple interest
85or other possessory estate in real property, except an interest
86in real property that is:
87     (a)  Improved with one single-family residential unit or
88one multifamily structure containing one to four residential
89units;
90     (b)  Unimproved and the maximum permitted development is
91one to four residential units under any restrictive covenants,
92zoning regulations, or comprehensive plan applicable to that
93real property; or
94     (c)  Improved with single-family residential units such as
95condominiums, townhouses, timeshares, mobile homes, or houses in
96a subdivision that may be legally sold, leased, or otherwise
97conveyed on a unit-by-unit basis, regardless of whether these
98units may be a part of a larger building or parcel containing
99more than four residential units.
100     (6)  "Commission" means any fee or other compensation that
101an owner agrees to pay a broker for licensed services as
102specified in a brokerage agreement.
103     (7)  "Commission notice" means the written notice claiming
104a commission made by a broker under s. 475.705.
105     (8)  "Days" means calendar days, but if a period would end
106on a day other than a business day, then the last day of that
107period shall instead be the next business day.
108     (9)  "Disposition" means a voluntary conveyance or transfer
109of the title to or other ownership interest in any commercial
110real estate specified in a brokerage agreement. A disposition
111does not include a transfer pursuant to a foreclosure sale and
112does not include a lease.
113     (10)  "Disputed reserved proceeds" means the portion of the
114owner's net proceeds reserved by a closing agent under s.
115475.709 that the owner disputes the broker's right to receive
116such reserved proceeds under s. 475.709(5).
117     (11)  "Owner" means a person that is vested with fee simple
118title or a possessory estate in commercial real estate.
119     (12)  "Owner's net proceeds" means the gross sales proceeds
120that the owner is entitled to receive from the disposition of
121any commercial real estate specified in a brokerage agreement,
122less the following:
123     (a)  Any money that is required to pay any encumbrance,
124claim, or lien that has priority over the recorded commission
125notice as provided in s. 475.715 other than an encumbrance,
126claim, or lien that the buyer of the commercial real estate
127authorizes to remain after the disposition.
128     (b)  Any costs incurred by the owner to close the
129disposition, including, but not limited to, real estate transfer
130tax, title insurance premiums, ad valorem taxes and assessments,
131and escrow fees payable by the owner pursuant to an agreement
132with the buyer.
133     (13)  "Real property" means one or more parcels or tracts
134of land located in this state, including any appurtenances and
135improvements.
136     475.703  Broker's lien for sales commission.--
137     (1)  A broker has a lien upon the owner's net proceeds from
138the disposition of commercial real estate for any commission
139earned by the broker with respect to that disposition pursuant
140to a brokerage agreement. The lien upon the owner's net proceeds
141pursuant to this part for a broker's commission is a lien upon
142personal property, attaches to the owner's net proceeds only,
143and does not attach to any interest in real property.
144     (2)  For purposes of this part, a commission is earned on
145the earlier of the date that:
146     (a)  An event occurs under the brokerage agreement that
147defines when the commission is earned; or
148     (b)  The owner enters into a contract for the disposition
149of all or part of the commercial real estate specified in the
150brokerage agreement, provided that a commission would be payable
151to the broker pursuant to the brokerage agreement if the
152disposition occurs under that contract.
153     (3)  For the purposes of this part, a commission is payable
154at the time provided in the brokerage agreement. If payment of
155the commission is conditioned on the occurrence of an event and
156that event does not occur, a broker may not enforce a lien for
157that commission under this part.
158     (4)  A broker's lien for commission arising under this
159part:
160     (a)  Belongs to the broker named in the brokerage agreement
161and not to an employee or independent contractor of the broker.
162     (b)  Cannot be assigned voluntarily or by operation of law
163and may not be enforced by a person other than the broker.
164     (c)  Cannot be waived before the commission is earned.
165     (d)  Cannot be waived by any person other than the broker,
166regardless of whether that person may execute and bind the
167broker to a brokerage agreement.
168     (5)  A broker shall disclose to the owner at or before the
169time the owner executes the brokerage agreement that this part
170creates lien rights for a commission earned by the broker that
171are not waivable before the commission is earned by the broker.
172A broker may not enforce a lien under this part for a commission
173earned under a brokerage agreement for which the disclosure
174required by this subsection was not made. A disclosure in
175substantially the following form shall be sufficient: "The
176Florida Commercial Real Estate Sales Commission Lien Act
177provides that when a broker has earned a commission by
178performing licensed services under a brokerage agreement with
179you, the broker may claim a lien against your net sales proceeds
180for the broker's commission. The broker's lien rights under the
181act cannot be waived before the commission is earned."
182     475.705  Contents of commission notice; delivery to owner
183and closing agent.--
184     (1)  A commission notice made by a broker with respect to a
185commission claimed under this part shall be in writing, shall be
186signed and sworn to or affirmed by the broker under penalty of
187perjury before a notary public, and shall include the following:
188     (a)  The name of the owner of the commercial real estate
189who is obligated to pay the claimed commission.
190     (b)  The legal description of the commercial real estate.
191     (c)  The name, mailing address, telephone number, and
192license number of the broker.
193     (d)  The effective date of the brokerage agreement.
194     (e)  The amount of the commission claimed by the broker,
195which may be stated in a dollar amount or may be stated in the
196form of a formula determining the amount, such as a percentage
197of the sales price.
198     (f)  A statement under penalty of perjury that the broker
199has read the commission notice, knows its contents, believes the
200same to be true and correct, and makes the commission claim
201pursuant to the brokerage agreement described in the notice.
202     (g)  A statement that the commission notice or a copy
203thereof has been delivered to the owner and that the commission
204notice may be recorded in the public records of the county or
205counties where the commercial real estate is located.
206     (h)  A statement that this part provides that if the owner
207disputes the claimed commission the owner shall notify the
208closing agent of such dispute not later than 5 days after the
209closing, or the owner will be deemed to have confirmed the
210commission and this part will require the closing agent to pay
211the commission to the broker from the owner's net proceeds from
212the disposition of the commercial real estate.
213     (2)  A commission notice in substantially the following
214form shall be sufficient for purposes of subsection (1):
215
216
BROKER'S COMMISSION NOTICE UNDER
217
FLORIDA COMMERCIAL REAL ESTATE SALES COMMISSION LIEN ACT
218
219Notice is hereby given pursuant to the Florida Commercial Real
220Estate Sales Commission Lien Act, part III of chapter 475,
221Florida Statutes (the "act"), that the undersigned real estate
222broker is entitled to receive a sales commission in the amount
223set forth below from the owner named below pursuant to the terms
224of a written brokerage commission agreement regarding the
225commercial real estate described below, and the undersigned
226broker claims a lien under the act against the owner's net
227proceeds from the disposition of the commercial real estate. The
228act and this commission notice do not create a lien against the
229commercial real estate itself, but only against the owner's net
230proceeds.
231
2321.  Name of the owner who is obligated to pay the commission:
233_____________________________________________
2342.  Legal description of the commercial real estate:
235_____________________________________________
2363.  Name, mailing address, telephone number, and Florida broker
237license number of the undersigned broker:
238______________________________
239______________________________
240______________________________
2414.  Effective date of the written brokerage commission agreement
242between the owner and the broker under which the commission is
243or will be payable: ________, ____
2445.  Amount of commission claimed by the undersigned broker:
245$______________, or
246______________ percent of sales price, or
247[specify other formula for determination of commission amount]:
248_____________________________________________.
2496.  The undersigned broker, under penalty of perjury, hereby
250swears or affirms that the undersigned broker has read this
251commission notice, knows its contents and believes the same to
252be true and correct, and that the undersigned broker is making
253this commission claim pursuant to the written brokerage
254commission agreement described in this commission notice.
2557.  The undersigned broker confirms that this commission notice
256or a copy thereof has been delivered to the owner.
257
258                         Signed: ________(broker)___________
259
260Signed and sworn to or affirmed under penalty of perjury before
261me, a notary public, this _____ day of _______, ____, by
262___________
263
264                         Signed: ________(notary public)____
265WARNING TO OWNER: The act provides that if you dispute the
266commission claimed in this commission notice, you must notify
267the closing agent of the dispute no later than 5 days after the
268closing. If you fail to notify the closing agent before that
269date that you dispute the commission, you will be deemed to have
270confirmed the commission and the act will require the closing
271agent to pay the commission to the broker from your net proceeds
272from the disposition of the commercial real estate.
273
274This commission notice may be recorded in the public records of
275the county or counties where the commercial real estate is
276located.
277     (3)  Subject to subsection (4), if a broker wishes to
278enforce a lien for a commission under this part, the broker
279shall, within 30 days after a commission is earned by the broker
280pursuant to s. 475.703(2) and at least 1 day before the closing,
281deliver a copy of the commission notice to:
282     (a)  The owner of the commercial real estate specified in
283the brokerage agreement.
284     (b)  The closing agent designated to close the transaction
285for the disposition of the commercial real estate, if the broker
286then knows the identity of the closing agent. If the identity of
287the closing agent thereafter becomes known to the broker, then
288the broker shall deliver a copy of the commission notice to the
289closing agent within 3 days after the broker acquires such
290knowledge and at least 1 day before the closing.
291     (4)  Except as provided in this subsection, a broker who
292fails to deliver a copy of a commission notice as required under
293subsection (3) within the period specified therein may not
294enforce a lien for the commission under this part. If a broker
295fails to deliver a copy of the commission notice within said
296period solely because the owner entered into a contract for the
297disposition of the commercial real estate without the knowledge
298of the broker, the broker may enforce a lien for the commission
299under this part if:
300     (a)  The copy of the commission notice is delivered to the
301owner and the closing agent before the closing agent disburses
302the owner's net proceeds to the owner.
303     (b)  The broker executes and delivers to the closing agent
304a sworn affidavit stating that the copy of the commission notice
305was not delivered within the time period specified in subsection
306(3) solely because the owner entered into a contract for the
307disposition of the commercial real estate without the knowledge
308of the broker.
309
310Notwithstanding the provisions of this subsection, a broker who
311fails to deliver a copy of a commission notice to the owner and
312the closing agent before the disbursement of the owner's net
313proceeds may not enforce a lien for the commission under this
314part, and the delivery of a copy of a commission notice after
315such disbursement is ineffective under this part.
316     475.707  Recording commission notice; effectiveness.--
317     (1)  After a broker delivers the copies of a commission
318notice as provided in s. 475.705, the broker may record the
319commission notice in the public records maintained by the clerk
320of court in the county or counties in which the commercial real
321estate is located.
322     (a)  Subject to the limitation in paragraph (b), the
323broker's lien created by this part against the owner's net
324proceeds is perfected by such recording of the commission notice
325and takes priority pursuant to this part as of the date of the
326recording of the commission notice. The priority of the lien
327does not relate back to the date of the brokerage agreement.
328     (b)  The recording of the commission notice shall not
329constitute constructive notice to a closing agent unless the
330commission notice has been of record for at least 60 days.
331     (2)  A recorded commission notice is effective under this
332part only with respect to dispositions made by the owner named
333in the commission notice and after the recordation of a deed
334from the owner conveying the commercial real estate specified in
335the commission notice to a bona fide purchaser for value the
336commission notice is ineffective with respect to any subsequent
337dispositions of that commercial real estate.
338     (3)  A commission notice recorded under this part expires 1
339year after the date of recording, unless the brokerage agreement
340remains effective after the expiration date of the commission
341notice and the broker records an extension notice in the same
342public records within the last 60 days before such expiration
343date. An extension notice shall refer to the recording
344information of the original commission notice, shall state that
345the brokerage agreement remains effective, and shall include the
346information and be executed in the manner as required by s.
347475.705(1) for the original commission notice. A timely recorded
348extension notice shall extend the expiration date of the
349original recorded commission notice by 1 additional year.
350Successive extension notices may be recorded for so long as the
351brokerage agreement remains effective between the broker and the
352owner. Within 10 days after recording an extension notice the
353broker shall deliver a copy thereof to the owner.
354     (4)  The delivery or recording of a commission notice or
355the enforcement of a commission claim by a broker under this
356part does not relieve the owner from the owner's obligation to
357close a disposition transaction for any commercial real estate.
358     (5)  Whenever a commission notice is recorded and a
359condition or event occurs or fails to occur that would preclude
360the broker from receiving the claimed commission under the terms
361of the brokerage agreement, including the filing of a commission
362notice in a manner that does not comply with this part, the
363broker shall, within 7 days following demand by the owner,
364record a written release of the commission notice in the public
365records of the county where the commission notice was recorded.
366     (6)  If a broker records a commission notice pursuant to
367this section and the claimed commission is paid or the
368commission notice is otherwise discharged or satisfied pursuant
369to this part, the broker shall, within 7 days after the
370commission is paid or the commission notice is otherwise
371discharged or satisfied, record a written release of the
372commission notice in the public records of the county where the
373commission notice was recorded.
374     475.709  Duties of closing agent; reservation of owner's
375net proceeds.--
376     (1)(a)  The closing agent shall reserve from the owner's
377net proceeds an amount equal to the commission claimed by the
378broker in the commission notice if, before the closing agent
379disburses the owner's net proceeds from the closing of a
380disposition of commercial real estate:
381     1.  A commission notice pertaining to the commercial real
382estate is delivered to the closing agent in accordance with s.
383475.705;
384     2.  A commission notice pertaining to the commercial real
385estate has been recorded for at least 60 days pursuant to s.
386475.707 and has not expired or been released or canceled as
387provided in this part; or
388     3.  The closing agent has actual knowledge of a commission
389notice pertaining to the commercial real estate that has been
390recorded pursuant to s. 475.707 and has not expired or been
391released or canceled as provided in this part.
392     (b)  If the owner's net proceeds are insufficient to pay
393the full amount of the claimed commission, the closing agent
394shall reserve the entire amount of the owner's net proceeds. The
395closing agent shall release the reserved proceeds only in
396accordance with the provisions of this part.
397     (2)(a)  The closing agent designated to close a transaction
398for the disposition of commercial real estate may require the
399owner of the commercial real estate to deliver a sworn affidavit
400identifying the commercial real estate and disclosing to the
401closing agent:
402     1.  Whether the owner is a party to any brokerage agreement
403under which any broker or brokers may have a right to claim a
404commission from the disposition of the commercial real estate.
405     2.  The name, mailing address, and telephone number of any
406brokers who may have a right to claim a commission, if known to
407the owner.
408     3.  The amount of any and all commissions that may be
409claimed under any brokerage agreement disclosed in the owner's
410affidavit, to the best of the owner's knowledge and belief.
411     4.  Whether the owner confirms or disputes the amount of
412any commission claimed from the disposition of the commercial
413real estate as disclosed in the owner's affidavit.
414     (b)  If the closing agent receives an affidavit from the
415owner under this subsection disclosing that any commission may
416be claimed from the disposition of the commercial real estate,
417regardless of whether the owner confirms or disputes the
418commission, the closing agent shall reserve from the owner's net
419proceeds an amount equal to the total commission amount
420disclosed by the owner in the affidavit. Upon request by a
421broker who has a brokerage agreement with the owner covering the
422commercial real estate identified in the owner's affidavit, the
423closing agent shall deliver a copy of the affidavit to the
424broker. If the owner's net proceeds are insufficient to pay the
425full amount of the commission so disclosed, the closing agent
426shall reserve the entire amount of the owner's net proceeds. If
427the owner's affidavit discloses a commission amount that is
428different from the commission amount required to be reserved
429under subsection (1), the closing agent shall reserve the
430greater of the two commission amounts. The closing agent shall
431release the reserved proceeds only in accordance with the
432provisions of this part.
433     (3)  If the provisions of subsection (1) do not require the
434closing agent to reserve against the owner's net proceeds on
435account of a commission notice pertaining to the commercial real
436estate, and if the closing agent receives an owner's affidavit
437pursuant to subsection (2) stating that the owner is not a party
438to any brokerage agreement under which any commission may be
439claimed from the disposition of the commercial real estate, the
440closing agent has no duty under this part to reserve any money
441or property for a commission from the owner's net proceeds from
442the disposition of the commercial real estate.
443     (4)  If the closing agent determines that the owner's net
444proceeds from a disposition of commercial real estate are
445insufficient to pay the full amount of the commission claimed in
446a commission notice or disclosed in an owner's affidavit, the
447closing agent shall, within 3 days after making that
448determination but no later than the closing of the disposition,
449notify the owner and the broker of the determination. The
450closing agent's determination that the owner's net proceeds are
451insufficient under this part, however, does not relieve the
452owner from the owner's contractual obligations under the
453brokerage agreement to pay the full commission owing to the
454broker.
455     (5)  If the owner confirms that a commission is payable to
456the broker, at the closing of the disposition of the commercial
457real estate the closing agent shall release to the broker the
458confirmed amount of the commission from the reserved proceeds. A
459settlement statement executed by the owner and showing the
460payment of a commission to the broker is confirmation by the
461owner of the commission amount shown on the settlement
462statement. If the owner disputes the broker's right to receive
463all or any portion of the claimed commission, the closing agent
464shall release to the broker from the reserved proceeds only the
465undisputed portion of the commission, if any. Until the rights
466of the owner and the broker with respect to the disputed
467reserved proceeds are determined pursuant to s. 475.711 or s.
468475.713 or the owner and the broker otherwise agree in writing,
469the closing agent shall not release the disputed reserved
470proceeds to any person other than to deposit the same in the
471registry of the court having jurisdiction of the dispute.
472     (6)  The commission claimed in the commission notice shall
473be deemed confirmed by the owner and the closing agent shall
474release the reserved proceeds to the broker, if the closing
475agent is required pursuant to subsection (1) to reserve any or
476all of the owner's net proceeds, and if:
477     (a)  Five days have passed after the closing.
478     (b)  The owner has neither confirmed nor disputed the
479claimed commission to the closing agent.
480     (c)  The closing agent receives reasonably satisfactory
481evidence that the broker delivered a copy of the commission
482notice to the owner in accordance with s. 475.705.
483     (7)  If the owner's net proceeds consist in whole or in
484part of a purchase-money note, and if the money portion of the
485owner's net proceeds is insufficient to pay the full amount of
486the commission claimed, the broker's lien under this part for
487the portion of the commission not paid from the money proceeds
488shall attach to the purchase-money note and any security
489therefor, and the closing agent shall reserve and release the
490purchase-money note in accordance with this part in the same
491manner as the money portion of the reserved proceeds. If the
492owner and the broker are unable to agree within 5 days after the
493closing regarding the closing agent's release of the purchase-
494money note, the closing agent shall interplead the purchase-
495money note along with any money reserved proceeds in accordance
496with s. 475.711.
497     (8)  If the disposition of the commercial real estate is
498part of a like-kind exchange by the owner which is deferred from
499federal income tax under section 1031 of the Internal Revenue
500Code of 1986, as amended, and if all of the owner's net proceeds
501in excess of undisputed commissions shall be delivered to a
502third party in order to qualify the disposition for such tax
503deferral treatment, the owner may substitute other cash, a
504surety bond, an unconditional letter of credit, or other liquid
505security acceptable to the broker in lieu of any disputed
506reserved proceeds held by the closing agent under this section
507or deposited in the court registry in accordance with s.
508475.711.
509     (9)  Upon request of the closing agent or the owner, any
510broker who has recorded a commission notice under s. 475.707
511shall submit a satisfaction or release of the commission notice
512in recordable form to the closing agent to be held in escrow
513pending the closing and the closing agent's release to the
514broker of the portion of the owner's net proceeds reserved by
515the closing agent under this section. The closing agent is
516authorized to deduct from the reserved proceeds payable to the
517broker the cost of recording the satisfaction or release of the
518commission notice.
519     (10)  Neither the closing agent's requirement for an
520owner's affidavit pursuant to subsection (2), nor the closing
521agent's reservation of any portion of an owner's net proceeds
522pursuant to subsections (1) or (2), shall relieve the owner of
523the owner's obligation to close the transaction for the
524disposition of the commercial real estate, including, without
525limitation, any obligation of the owner to the buyer under the
526purchase and sale contract to discharge mortgages, liens, or
527encumbrances against the commercial real estate that were
528recorded after the commission notice and therefore are not
529subtracted from gross sales proceeds when computing the owner's
530net proceeds under s. 475.719.
531     (11)  A closing agent is not liable to the owner, the
532broker, or any other person in any civil action for any action
533taken by the closing agent to comply with the provisions of this
534part.
535     (12)  No provision of this part shall require a closing
536agent to serve involuntarily more than 5 days after a closing as
537an escrow agent or stakeholder for any monies or other property
538that are disputed by the owner and the broker under the
539provisions of this part.
540     475.711  Interpleader or other proceedings; deposit of
541reserved proceeds in court registry; discharge of closing agent
542from further liability.--
543     (1)  The closing agent shall, by interpleader action or
544other legal proceeding, seek adjudication of the rights of the
545parties with respect to disputed reserved proceeds by the county
546court or circuit court, whichever may have jurisdiction of
547controversies in the amount of the disputed reserved proceeds,
548in a county where all or a portion of the commercial real estate
549is located if, after the closing of a transaction for the
550disposition of the commercial real estate:
551     (a)  The closing agent has reserved all or a portion of the
552owner's net proceeds pursuant to s. 475.709 and the owner
553disputes the release to the broker of all or any portion of the
554reserved proceeds.
555     (b)  The owner and the broker have not agreed in writing,
556within 5 days after the closing, regarding the closing agent's
557release of the disputed reserved proceeds.
558     (c)  Neither the owner nor the broker have commenced a
559civil action to determine the rights of the parties with respect
560to the disputed reserved proceeds.
561     (2)  Unless otherwise agreed to by the owner and the broker
562in writing, the closing agent shall deposit the net amount of
563disputed reserved proceeds in the registry of the court having
564jurisdiction of any legal action or proceeding to determine the
565rights of the parties in the disputed reserved proceeds, whether
566commenced by the closing agent under subsection (1) or commenced
567by the owner or the broker under s. 475.713 or otherwise. The
568closing agent shall determine the net amount of disputed
569reserved proceeds deposited in the court registry by deducting
570from the disputed reserved proceeds:
571     (a)  Any costs incurred by the closing agent to commence
572such action or proceeding, or to appear in any such action or
573proceeding commenced by the owner or the broker, including
574reasonable attorney's fees.
575     (b)  The costs of recording the affidavit described in
576subsection (3) if any commission notice has been recorded.
577     (c)  The service charges of the clerk of court under s.
57828.24 for receiving the net amount of such disputed reserved
579proceeds into the registry of the court.
580     (3)  If a commission notice has been recorded in the public
581records of the county or counties where the commercial real
582estate is located, upon depositing the net disputed reserved
583proceeds with the clerk of court pursuant to subsection (2), the
584closing agent shall execute and record an affidavit referring to
585the recorded commission notice and stating that the net disputed
586reserved proceeds have been so deposited in accordance with this
587part. The recording of the affidavit shall operate to release
588the recorded commission notice.
589     (4)  If a closing agent deposits the net disputed reserved
590proceeds with the clerk of court pursuant to subsection (2), the
591closing agent is discharged from any further liability or
592responsibility concerning the disputed reserved proceeds.
593     475.713  Civil action concerning commission; order to show
594cause; hearing; release of proceeds; award of costs and
595attorney's fees.--
596     (1)  If a commission notice claiming a commission is
597delivered to an owner pursuant to s. 475.705 and the owner
598disputes the claimed commission, the owner or the broker may
599file a civil action concerning the commission claim in the
600county court or circuit court, whichever has jurisdiction of
601controversies in the amount of the claimed commission, of the
602county where the commercial real estate or a portion of the
603commercial real estate is located.
604     (2)  In a civil action by the owner, at the time the
605summons is issued or at any time before the complaint is
606answered by the broker, the owner may apply to the court for an
607order directing the broker to appear before the court at a time
608not earlier than 7 days or later than 15 days after the date of
609service of the motion and order on the broker to show cause why
610the commission claim should not be dismissed. The motion must
611state the grounds upon which relief is sought and must be
612supported by the affidavit of the owner setting forth a concise
613statement of the facts upon which the motion is based. The order
614to show cause shall clearly state that if the broker fails to
615appear at the time and place specified in the order, the
616broker's claim of lien against the owner's net proceeds under
617this part shall be released, with prejudice, and the broker
618shall be ordered to pay the costs incurred by the owner and the
619closing agent, including reasonable attorney's fees.
620     (3)  The court shall issue an order releasing the broker's
621claim of lien against the owner's net proceeds from such
622disposition, discharging any commission notice that may be have
623been recorded, ordering the release to the owner of the disputed
624reserved proceeds, and awarding costs and reasonable attorney's
625fees to the owner to be paid by the broker if, following a
626hearing, the court determines that the owner is not a party to a
627brokerage agreement that will result in the owner being
628obligated to pay the broker the claimed commission or any
629portion thereof with respect to the disposition of the
630commercial real estate identified in the commission notice. If
631the court determines that the owner is a party to a brokerage
632agreement that will result in the owner being obligated to pay
633the broker the claimed commission or any portion thereof with
634respect to the disposition of the commercial real estate
635identified in the commission notice, the court shall issue an
636order so stating, ordering the release to the broker of the
637disputed reserved proceeds or such portion thereof to which the
638court determines that the broker is entitled, and awarding costs
639and reasonable attorney's fees to the broker to be paid by the
640owner. Such orders are final judgments.
641     (4)  A certified copy of any order issued by the court
642pursuant to subsection (3) discharging a recorded commission
643notice shall be recorded at the expense of the broker in the
644public records where the commission notice was recorded, and
645such order shall operate as a cancellation of the recorded
646commission notice.
647     (5)(a)  In a civil action commenced by the owner or the
648broker under this section or in an interpleader action or other
649proceeding commenced by the closing agent under s. 475.711, the
650owner or the broker that is not the prevailing party shall be
651required to pay:
652     1.  The costs and reasonable attorney's fees incurred in
653the action by the prevailing party.
654     2.  The costs and reasonable attorney's fees incurred in
655the action by the closing agent.
656     3.  The amount of any costs, recording charges, and service
657charges of the clerk of court that were deducted from the
658disputed reserved proceeds under s. 475.711(2) in determining
659the net amount thereof deposited into the registry of the court.
660     (b)  If the court determines that neither the owner nor the
661broker is the prevailing party, the amounts set forth in
662subparagraphs 1.and 2. of this subsection shall be divided
663equally between and paid by the owner and the broker.
664     (6)  Proceedings conducted pursuant to this section shall
665not affect rights and remedies otherwise available to the owner
666or the broker under other applicable law.
667     475.715  Priority of recorded commission notice.--All
668statutory liens, consensual liens, mortgages, deeds of trust,
669assignments of rents, and other encumbrances, including all
670advances or charges made or accruing thereunder, whether
671voluntary or obligatory, and all modifications, extensions,
672renewals, and replacements thereof, recorded prior to the
673recording of a commission notice pursuant to the provisions of
674s. 475.707, have priority over the commission notice, and the
675amount required to discharge such prior recorded liens shall be
676subtracted from gross sales proceeds in computing the owner's
677net proceeds unless the buyer permits the same to remain a lien
678against the title to the commercial real estate. A prior
679recorded lien includes, without limitation, a valid construction
680lien claim that is recorded after the recording of the broker's
681commission notice but which relates back to a notice of
682commencement recorded under s. 713.13 prior to the recording
683date of the broker's commission notice.
684     475.717  Service of notice.--Notices to be delivered to a
685party pursuant to this part other than service of process as
686required in civil actions shall be by service of process, by
687registered or certified mail with return receipt requested, or
688by personal or electronic delivery and obtaining evidence of
689delivery in the form of a receipt or other paper or electronic
690acknowledgment by the party to whom the notice is delivered.
691Delivery is effective at the time of personal service, personal
692or electronic delivery, or 3 days following deposit in the mail
693as required by this section. Notice to a broker or owner may be
694given to the address of the broker or owner that is contained in
695the brokerage agreement or such other address as is contained in
696a written notice from the broker or owner to the party giving
697the notice. If no address is provided in the brokerage
698agreement, the notice to the broker may be given to the broker's
699address contained in the commission notice. Notice to a closing
700agent shall be addressed to the individual responsible for the
701closing if the person sending the notice knows that individual's
702name.
703     475.719  Buyer's broker.--As used in this section, the term
704"buyer's broker" means a broker that is entitled to receive
705payment from the buyer of commercial real estate of any fee or
706other compensation for licensed services, as specified in a
707written contract made between the buyer and the broker on or
708after the effective date of this act relating to the buyer's
709purchase of the commercial real estate.
710     (1)  A written contract between a buyer and a buyer's
711broker for the payment by the buyer of any fee or other
712compensation to the buyer's broker for licensed services
713relating to the sale or disposition of commercial real estate to
714the buyer is not a brokerage agreement with the owner under this
715part, and the buyer's broker is not entitled under this part to
716record any commission notice, to claim any lien against
717commercial real estate, or to claim any lien against the owner's
718net proceeds from the sale or disposition of commercial real
719estate.
720     (2)  If an owner enters into a written contract with a
721buyer for the sale or disposition of any commercial real estate
722that will entitle the buyer's broker to receive a fee or other
723compensation from the buyer under the terms of the buyer's
724broker's written contract with the buyer, the buyer's broker may
725give notice of the buyer's broker's right to receive such
726payment to the closing agent, the owner, the buyer, or any other
727party to the sale or disposition or the financing thereof,
728provided that such notice may be given without violating any
729confidentiality provisions contained in either such written
730contract.
731     (3)  No such notice given by the buyer's broker pursuant to
732subsection (2) shall constitute a tortious interference with the
733sale or disposition or financing of the commercial real estate,
734except this section shall not affect the rights and remedies
735otherwise available to the owner, the buyer, or the buyer's
736broker under other applicable law.
737     Section 2.  Part IV of chapter 475, Florida Statutes,
738consisting of sections 475.800, 475.801, 475.803, 475.805,
739475.807, 475.809, 475.811, and 475.813, is created to read:
740     475.800  Short title.--Sections 475.800-475.813 may be
741cited as the "Commercial Real Estate Leasing Commission Lien
742Act."
743     475.801  Definitions.--As used in this part:
744     (1)  "Automatic renewal commission" means a renewal
745commission for which the brokerage agreement does not expressly
746require the broker to perform any additional services in order
747to receive the renewal commission.
748     (2)  "Broker" has the same meaning as in s. 475.01.
749     (3)  "Brokerage agreement" means a written contract,
750entered into on or after the effective date of this act, between
751an owner of commercial real estate and a broker that obligates
752the owner to pay a commission to the broker for licensed
753services provided by the broker relating to the leasing of the
754commercial real estate as specified in the contract.
755     (4)  "Commercial real estate" means a fee simple interest
756or other possessory estate in real property, except an interest
757in real property that is:
758     (a)  Improved with one single-family residential unit or
759one multifamily structure containing one to four residential
760units;
761     (b)  Unimproved and the maximum permitted development is
762one to four residential units under any restrictive covenants,
763zoning regulations, or comprehensive plan applicable to that
764real property; or
765     (c)  Improved with single-family residential units such as
766condominiums, townhouses, timeshares, mobile homes, or houses in
767a subdivision that may be legally sold, leased, or otherwise
768conveyed on a unit-by-unit basis, regardless of whether these
769units may be a part of a larger building or parcel containing
770more than four residential units.
771     (5)  "Commission" means any fee or other compensation that
772an owner agrees to pay a broker for licensed services as
773specified in a brokerage agreement.
774     (6)  "Days" means calendar days, but if a period would end
775on a day other than a business day, the last day of that period
776shall instead be the next business day.
777     (7)  "Lease" means a written agreement creating a
778relationship of landlord and tenant with respect to commercial
779real estate, such that the tenant acquires from the landlord the
780right to possess the commercial real estate for a specified
781period of time.
782     (8)  "Lien notice" means the written notice of lien made by
783a broker claiming a commission under s. 745.805.
784     (9)  "Owner" means a person that is vested with fee simple
785title or a possessory estate, including a leasehold, in
786commercial real estate that is the subject of a lease. For
787purposes of this part, the owner obligated to pay a commission
788under a brokerage agreement may be a landlord or a tenant.
789     (10)  "Real property" means one or more parcels or tracts
790of land located in this state, including any appurtenances and
791improvements.
792     (11)  "Renewal commission" means an additional commission
793that may become payable to a broker under a brokerage agreement
794if a lease subject to that brokerage agreement is later renewed
795or is later modified to expand the leased premises or extend the
796lease term.
797     475.803  Broker's lien for leasing commission.--
798     (1)  A broker has a lien upon the owner's interest in
799commercial real estate for any commission earned by the broker
800pursuant to a brokerage agreement with respect to a lease of the
801commercial real estate. If the owner obligated to pay the
802commission is the landlord, the broker's lien attaches to the
803landlord's interest in the commercial real estate identified in
804the brokerage agreement but not to the tenant's leasehold
805estate. If the owner obligated to pay the commission is the
806tenant, the broker's lien attaches to the tenant's leasehold
807estate but not to the landlord's interest in the commercial real
808estate.
809     (2)  For purposes of this part, a commission other than a
810renewal commission is earned on the earlier of the date that:
811     (a)  An event occurs that, under the brokerage agreement,
812defines when the commission is earned; or
813     (b)  The owner enters into a lease of all or part of the
814commercial real estate specified in the brokerage agreement,
815provided that a commission would be payable to the broker
816pursuant to the brokerage agreement for that lease.
817     (3)  For the purposes of this part, a renewal commission
818with respect to a lease renewal or lease modification is deemed
819earned when the broker performs all additional services relating
820to the lease renewal or lease modification that are expressly
821required by the brokerage agreement. If the brokerage agreement
822does not expressly require the broker to perform any additional
823services in order to receive the renewal commission, the renewal
824commission is an automatic renewal commission and is deemed
825earned when the broker first earned a commission for that lease.
826     (4)  For purposes of this part, a commission is payable at
827the time provided in the brokerage agreement. If payment of the
828commission is conditioned on the occurrence of an event and that
829event does not occur, a broker may not enforce a lien for that
830commission under this part.
831     (5)  A broker's lien for commission arising under this
832part:
833     (a)  Belongs to the broker named in the brokerage agreement
834and not to an employee or independent contractor of the broker.
835     (b)  Cannot be assigned voluntarily or by operation of law
836and may not be enforced by a person other than the broker.
837     (c)  Cannot be waived before the commission is earned.
838     (d)  Cannot be waived by any person other than the broker,
839regardless of whether that person may execute and bind the
840broker to a brokerage agreement.
841     (6)  A broker shall disclose to the owner at or before the
842time the owner executes the brokerage agreement that this part
843creates lien rights for a commission earned by the broker that
844are not waivable before the commission is earned by the broker.
845A broker may not enforce a lien under this part for a commission
846earned under a brokerage agreement for which the disclosure
847required by this subsection was not made. A disclosure in
848substantially the following form shall be sufficient: "The
849Florida Commercial Real Estate Leasing Commission Lien Act
850provides that when a broker has earned a commission by
851performing licensed services under a brokerage agreement with
852you, the broker may claim a lien against your interest in the
853property for the broker's commission. The broker's lien rights
854under the act cannot be waived before the commission is earned."
855     475.805  Contents of lien notice.--
856     (1)  A lien notice made by a broker with respect to a
857commission claimed under this part shall be in writing, shall be
858signed and sworn to or affirmed by the broker under penalty of
859perjury before a notary public, and shall include the following:
860     (a)  The name of the owner of the commercial real estate
861who is obligated to pay the claimed commission.
862     (b)  A statement whether the owner obligated to pay the
863commission is the landlord or the tenant under the lease for
864which the commission is claimed.
865     (c)  The name of the person owning the fee simple interest
866in the commercial real estate, if other than the owner obligated
867to pay the commission.
868     (d)  The legal description of the commercial real estate.
869     (e)  The name, mailing address, telephone number, and
870license number of the broker.
871     (f)  The effective date of the brokerage agreement.
872     (g)  The amount of the commission claimed by the broker,
873which may be stated in a dollar amount or may be stated in the
874form of a formula determining the amount, such as a percentage
875of the rents payable under the lease.
876     (h)  A description of the lease sufficient to identify the
877lease for which the commission is claimed, including, if then
878known to the broker, the names of the landlord and tenant under
879the lease, the date of the lease, and the identification of the
880leased premises.
881     (i)  A statement of whether the broker is claiming an
882automatic renewal commission and the amount of such automatic
883renewal commission or the formula for computing the same.
884     (j)  A statement under penalty of perjury that the broker
885has read the lien notice, knows its contents, believes the same
886to be true and correct, and makes the commission claim pursuant
887to the brokerage agreement described in the lien notice.
888     (2)  A lien notice in substantially the following form
889shall be sufficient for purposes of subsection (1):
890
891
BROKER'S COMMISSION LIEN NOTICE UNDER
892
FLORIDA COMMERCIAL REAL ESTATE LEASING COMMISSION LIEN ACT
893
894Notice is hereby given, pursuant to the Florida Commercial Real
895Estate Leasing Commission Lien Act, part IV of chapter 475,
896Florida Statutes (the "act"), that the undersigned real estate
897broker is entitled to receive a leasing commission from the
898owner named below pursuant to the terms of a written brokerage
899commission agreement regarding a lease of the commercial real
900estate described below, and the undersigned broker claims a lien
901under the act against the owner's interest in the commercial
902real estate in the amount set forth below.
9031.  Name of the owner who is obligated to pay the commission:
904_____________________________________________
9052.  (Check one:) The owner obligated to pay the commission is:
906     [  ] the landlord under the lease.
907     [  ] the tenant under the lease.
9083.  Name of the person owing the fee simple interest in the
909commercial real estate, if other than the owner who is obligated
910to pay the commission:
911_____________________________________________
9124.  Legal description of the commercial real estate:
913_____________________________________________
9145.  Name, mailing address, telephone number, and Florida broker
915license number of the undersigned broker:
916______________________________
917______________________________
918______________________________
9196.  Effective date of the written brokerage commission agreement
920between the owner and the broker under which the commission is
921or will be payable: _______, ____
9227.  Amount of commission claimed by the undersigned broker:
923     $______________, or
924     ______________ percent of rents payable under lease, or
925     [specify other formula for determination of commission
926amount]: _____________________________________________.
9278.  The lease for which the commission is claimed is described
928as follows [provide all information known to the broker]:
929     Name of landlord: _________________________
930     Name of tenant: ___________________________
931     Date of lease: ______________, _________
932     Leased premises: __________________________
9339.  Automatic renewal commissions (check yes or no): Is the
934undersigned broker claiming a commission that may become payable
935if the lease is later renewed or modified to expand the leased
936premises or to extend the lease term, but the written brokerage
937commission agreement does not expressly require the broker to
938perform any additional services in order to receive this later
939commission?
940     [  ] Yes
941     [  ] No
942If yes, specify the amount of such later commission or the
943formula for computing the later commission:
944_____________________________________________________________
94510.  The expiration date of this lien notice is 2 years after
946the date of recording, unless the answer to paragraph 9 is yes,
947in which case the expiration date of this lien notice for the
948commission described in paragraph 9 is 10 years after the date
949of recording.
95011.  The undersigned broker, under penalty of perjury, hereby
951swears or affirms that the undersigned broker has read this lien
952notice, knows its contents and believes the same to be true and
953correct, and that the undersigned broker is making this
954commission claim pursuant to the written brokerage commission
955agreement described in this lien notice.
956
957                         Signed: ________(broker)___________
958
959Signed and sworn to or affirmed under penalty of perjury before
960me, a notary public, this _____ day of _______, ____, by
961___________
962
963                         Signed: ________(notary public)____
964
965     475.807  Recording lien notice; effectiveness.--
966     (1)(a)  After a commission is earned under this part, the
967broker may record a lien notice in the public records maintained
968by the clerk of court in the county or counties in which the
969commercial real estate is located. The lien notice shall be
970recorded no later than the earlier of:
971     1.  Ninety days after the tenant takes possession of the
972leased premises or, in the case of a renewal commission that
973requires the broker to perform additional services as provided
974in s. 475.803(3), 90 days after the broker performs the
975additional services required for the renewal commission; or
976     2.  The date on which the owner who is obligated to pay the
977commission records in the public records a deed or assignment
978transferring the owner's interest in the commercial real estate
979to a bona fide purchaser for value.
980     (b)  A broker who fails to record a lien notice within the
981time period prescribed by this section may not enforce a lien
982for the claimed commission under this part, and a lien notice
983that is recorded outside of the time period prescribed by this
984section is void.
985     (2)  Within 7 days after recording the lien notice, the
986broker shall deliver a copy of the lien notice to the owner
987obligated to pay the claimed commission.
988     (3)  The broker's lien created by this part against the
989commercial real estate is perfected by such recording of the
990lien notice and takes priority under this part as of the date of
991the recording of the lien notice. The priority of the lien
992notice does not relate back to the date of the brokerage
993agreement.
994     (4)  If the commission is to be paid in installments and
995any of those installments are due after the lease is executed,
996the lien notice is valid only to the extent that moneys remain
997unpaid by the owner to the broker.
998     (5)  A recorded lien notice is effective under this part
999only with respect to leases made by the owner named in the lien
1000notice and the lien notice is ineffective with respect to any
1001leases that are made by:
1002     (a)  A bona fide purchaser for value of the commercial real
1003estate;
1004     (b)  A purchaser at any mortgage foreclosure sale of the
1005commercial real estate; or
1006     (c)  Any successor owner acquiring the commercial real
1007estate from a purchaser described in paragraphs (a) or (b).
1008     (6)  Whenever a lien notice is recorded and a condition or
1009event occurs or fails to occur that would preclude the broker
1010from receiving the claimed commission under the terms of the
1011brokerage agreement, including the filing of a lien notice in a
1012manner that does not comply with this part, the broker shall,
1013within 7 days following demand by the owner, record a written
1014release of the lien notice in the public records of the county
1015where the lien notice was recorded.
1016     (7)  If a broker records a lien notice pursuant to this
1017section and the claimed commission is paid or the lien notice is
1018otherwise discharged or satisfied pursuant to this part, the
1019broker shall, within 7 days after the commission is paid or the
1020lien notice is otherwise discharged or satisfied, record a
1021written release of the lien notice in the public records of the
1022county where the lien notice was recorded.
1023     (8)(a)  Except as provided in paragraph (b), a lien notice
1024recorded by a broker under this part for a claimed commission
1025expires 2 years after the date of recording, unless within that
1026time the broker commences an action to foreclose the lien under
1027s. 475.809 and records a notice of lis pendens in the public
1028records of the county where the lien notice was recorded.
1029     (b)  To the extent that a lien notice recorded by a broker
1030under this part claims an automatic renewal commission that is
1031earned but not then payable, the lien notice expires 10 years
1032after the date of recording, unless within that time the broker
1033commences an action to foreclose the lien under s. 475.809 and
1034records a notice of lis pendens in the public records of the
1035county where the lien notice was recorded. If the brokerage
1036agreement remains effective, the broker may extend the
1037expiration date of a lien notice for an automatic renewal
1038commission by recording an extension notice in the same public
1039records within the last 6 months before such expiration date. An
1040extension notice shall refer to the recording information of the
1041original lien notice, shall state that the brokerage agreement
1042remains effective, and shall include the same information and be
1043executed in the same manner as required by s. 475.805(1) for the
1044original lien notice. A timely recorded extension notice shall
1045extend the expiration date of the original recorded lien notice
1046by 10 additional years. Successive extension notices may be
1047recorded for so long as the brokerage agreement remains
1048effective between the broker and the owner. Within 10 days after
1049recording an extension notice, the broker shall deliver a copy
1050thereof to the owner.
1051     (c)  The owner or the owner's agent or attorney may elect
1052to shorten the time within which the broker shall commence an
1053action to foreclose a lien under s. 475.809, or to enforce a
1054claim against a transfer bond or other security under s.
1055475.811, by recording in the clerk's office a notice of contest
1056in substantially the following form:
1057
1058NOTICE OF CONTEST OF BROKER'S LIEN
1059
1060To:      (Name and address of broker)   _
1061You are notified that the undersigned contests the lien notice
1062filed by you on _________,  (year) , and recorded in Official
1063Records Book _____, Page _____, of the public records of
1064______________ County, Florida, and that the time within which
1065you may file suit to enforce your lien is limited to 60 days
1066from the date of service of this notice.  This _____ day of
1067_______,   (year)  .
1068
1069                              Signed:  (Owner or Attorney)  
1070
1071The lien of any broker upon whom such a notice of contest is
1072served and who fails to institute a suit to enforce the lien
1073within 60 days after service of such notice of contest shall be
1074extinguished automatically. The clerk shall mail a copy of the
1075notice of contest to the broker at the address shown in the lien
1076notice or most recent amendment thereto and shall certify to
1077such service on the face of the notice of contest and record the
1078notice of contest. Service of the notice of contest by the clerk
1079shall be deemed complete upon mailing.
1080     475.809  Foreclosure of lien; civil action by owner; award
1081of costs and attorney's fees.--
1082     (1)  A broker may enforce a lien for a commission that is
1083earned and payable under this part by a foreclosure suit in the
1084same manner as if the lien notice were a mortgage recorded
1085against the commercial real estate of the owner obligated to pay
1086the claimed commission. The foreclosure shall be commenced in
1087the county court or circuit court, whichever may have
1088jurisdiction of controversies in the amount of the claimed
1089commission, of the county where the lien notice was recorded.
1090The foreclosure action shall be commenced before the lien notice
1091expires or is extinguished under s. 475.807(8), otherwise the
1092lien notice shall become null and void and have no further force
1093or effect.
1094     (2)  If a lien notice is recorded pursuant to s. 475.807
1095and the owner disputes the claimed commission, the owner may
1096file a civil action seeking to discharge the lien in the county
1097court or circuit court, whichever may have jurisdiction of
1098controversies in the amount of the claimed commission, of the
1099county where the lien notice was recorded.
1100     (3)  In any action to foreclose a lien or to discharge a
1101lien pursuant to this section, the prevailing party shall be
1102awarded costs and reasonable attorney's fees.
1103     475.811  Transfer of lien to security.--
1104     (1)(a)  Any lien claimed by a broker by recording a lien
1105notice under this part may be transferred by any person having
1106an interest in the commercial real estate upon which the lien is
1107imposed from such commercial real estate to other security by
1108either:
1109     1.  Depositing in the clerk's office a sum of money; or
1110     2.  Filing in the clerk's office a bond executed as surety
1111by a surety insurer licensed to do business in this state,
1112either to be in an amount equal to the amount claimed in the
1113lien notice, plus interest thereon at the legal rate for 3
1114years, plus $1,000 or 25 percent of the amount demanded in the
1115lien notice, whichever is greater, to apply on any attorney's
1116fees and court costs that may be taxed in any proceeding to
1117enforce said lien.
1118     (b)  Such deposit or bond shall be conditioned to pay any
1119judgment or decree that may be rendered for the satisfaction of
1120the lien for which such lien notice was recorded. Upon making
1121such deposit or filing such bond, the clerk shall make and
1122record a certificate showing the transfer of the lien from the
1123commercial real estate to the security and shall mail a copy
1124thereof by registered or certified mail to the broker named in
1125the lien notice at the address stated therein. Upon filing the
1126certificate of transfer the commercial real estate shall
1127thereupon be released from the lien claimed and such lien shall
1128be transferred to said security. Subject to any order of the
1129court increasing the amount required for the lien transfer
1130deposit or bond, no other judgment or decree to pay money may be
1131entered by the court against the owner on account of the
1132commission claimed in the lien notice. The clerk shall be
1133entitled to a service charge for making and serving the
1134certificate, in the amount of up to $15. If the transaction
1135involves the transfer of multiple liens, an additional charge of
1136up to $7.50 for each additional lien shall be charged. For
1137recording the certificate and approving the bond, the clerk
1138shall receive her or his usual statutory service charges as
1139prescribed in s. 28.24. Any number of liens may be transferred
1140to one such security.
1141     (2)  Any excess of the security over the aggregate amount
1142of any judgments or decrees rendered plus costs actually taxed
1143shall be repaid to the party filing the security or her or his
1144successor in interest. Any deposit of money shall be considered
1145as paid into court and shall be subject to the provisions of law
1146relative to payments of money into court and the disposition of
1147same.
1148     (3)  In any action pending under s. 475.809 to foreclose or
1149discharge a lien any party having an interest in such security
1150or the commercial real estate from which the lien was
1151transferred may at any time and any number of times file a
1152motion for an order to require additional security, reduction of
1153security, change or substitution of sureties, payment of
1154discharge thereof, or any other matter affecting said security.
1155If the court finds that the amount of the deposit or bond in
1156excess of the amount claimed in the lien notice is insufficient
1157to pay the broker's attorney's fees and court costs incurred in
1158the action to enforce the lien, the court shall increase the
1159amount of the cash deposit or lien transfer bond.
1160     (4)  If a proceeding to enforce a transferred lien is not
1161commenced within the time specified in s. 475.809 or if it
1162appears that the transferred lien has been satisfied of record,
1163the clerk shall return said security upon request of the person
1164depositing or filing the same, or the insurer.
1165     475.813  Subordination of lien.--
1166     (1)  Nothing contained in this part precludes a broker from
1167agreeing to subordinate a lien claimed by the broker under this
1168part in favor of the holder of any mortgage or other lien
1169against the owner's interest in the commercial real estate that
1170is subject to the broker's lien.
1171     (2)  With or without the consent of the broker, the owner
1172may subordinate a lien claimed by the broker for an automatic
1173renewal commission in favor of the holder of a subsequent
1174mortgage encumbering the owner's interest in the commercial real
1175estate. The subordination instrument described in this
1176subsection shall be made in writing and shall be recorded by the
1177owner in the public records of the same county where the
1178broker's lien notice was recorded.
1179     (3)  A broker's lien notice recorded against commercial
1180real estate under this part is subordinate to any mortgage that
1181has at any time secured any purchase money indebtedness,
1182provided that the mortgage is made by the owner of the
1183commercial real estate in favor of a person unrelated to the
1184owner. This subordination provision affects only the relative
1185priority of the broker's lien notice and the mortgage with
1186respect to each other, and this provision does not affect their
1187relative priority with respect to any other mortgage, lien,
1188encumbrance, or other matter affecting the title to the
1189commercial real estate.
1190     Section 3.  Paragraph (j) of subsection (1) of section
1191475.42, Florida Statutes, is amended to read:
1192     475.42  Violations and penalties.--
1193     (1)  VIOLATIONS.--
1194     (j)  A broker or sales associate may not place, or cause to
1195be placed, upon the public records of any county, any contract,
1196assignment, deed, will, mortgage, affidavit, or other writing
1197which purports to affect the title of, or encumber, any real
1198property if the same is known to her or him to be false, void,
1199or not authorized to be placed of record, or not executed in the
1200form entitling it to be recorded, or the execution or recording
1201whereof has not been authorized by the owner of the property,
1202maliciously or for the purpose of collecting a commission, or to
1203coerce the payment of money to the broker or sales associate or
1204other person, or for any unlawful purpose. However, nothing in
1205this paragraph shall be construed to prohibit a broker or a
1206sales associate from recording a judgment rendered by a court of
1207this state or to prohibit a broker from placing a lien on a
1208property where expressly permitted by contractual agreement or
1209otherwise allowed by law.
1210     Section 4.  This act shall take effect October 1, 2005.


CODING: Words stricken are deletions; words underlined are additions.