| 1 | A bill to be entitled |
| 2 | An act relating to liens on commercial real estate; |
| 3 | creating part III of ch. 475, F.S., the "Commercial Real |
| 4 | Estate Sales Commission Lien Act"; providing definitions; |
| 5 | specifying conditions under which a broker is entitled to |
| 6 | a lien upon the owner's net proceeds from the disposition |
| 7 | of commercial real estate for any commission earned by the |
| 8 | broker under a brokerage agreement; providing that the |
| 9 | lien cannot be assigned, enforced, or waived by anyone |
| 10 | other than the broker; requiring disclosure; providing for |
| 11 | the contents of the commission notice and delivery to |
| 12 | certain parties; providing a form for the commission |
| 13 | notice; providing that a lien may not be enforced if the |
| 14 | notice is not delivered to certain parties; providing that |
| 15 | the commission notice may be recorded; providing for |
| 16 | expiration and extension under certain conditions; |
| 17 | providing for release of the commission notice under |
| 18 | certain conditions; providing the duties of the closing |
| 19 | agent; requiring the closing agent to reserve an owner's |
| 20 | proceeds under certain conditions; providing for the |
| 21 | release of proceeds under certain conditions; requiring |
| 22 | deduction of certain costs from the proceeds; providing |
| 23 | for interpleader or other legal proceedings sought by a |
| 24 | closing agent to adjudicate certain rights; providing for |
| 25 | the deposit of reserved proceeds in a court registry; |
| 26 | providing for the discharge of the closing agent from |
| 27 | further liability; providing for a civil action if a |
| 28 | dispute arises concerning the proceeds; providing that the |
| 29 | prevailing party may recover certain fees and costs |
| 30 | incurred in a civil action; establishing the priority of a |
| 31 | recorded commission notice; providing for the service of |
| 32 | notice; providing that a buyer's broker is not entitled to |
| 33 | a lien; providing certain conditions under which a buyer's |
| 34 | broker may seek payment of a commission; creating part IV |
| 35 | of ch. 475, F.S., the "Commercial Real Estate Leasing |
| 36 | Commission Lien Act"; providing definitions; providing |
| 37 | conditions under which a broker may place a lien upon an |
| 38 | owner's interest in commercial real estate for any |
| 39 | commission earned under a brokerage agreement with respect |
| 40 | to a lease of commercial real estate; providing that the |
| 41 | lien cannot be assigned, enforced, or waived by anyone |
| 42 | other than the broker; requiring disclosure; providing for |
| 43 | the contents of the lien notice; providing a form for the |
| 44 | lien notice; providing that the lien notice may be |
| 45 | recorded; providing that a lien may not be enforced if the |
| 46 | broker fails to record the notice; providing for |
| 47 | effectiveness of a recorded lien notice; providing for |
| 48 | release of the lien notice under certain conditions; |
| 49 | providing for expiration and extension under certain |
| 50 | conditions; providing for foreclosure of a recorded lien |
| 51 | under certain conditions; providing a form; providing for |
| 52 | a civil action if a dispute arises concerning the |
| 53 | proceeds; providing that the prevailing party may recover |
| 54 | certain fees and costs incurred in a civil action; |
| 55 | providing procedures to transfer a lien to a security; |
| 56 | providing that the clerk of court may collect a service |
| 57 | charge; providing for subordination of a broker's lien; |
| 58 | amending s. 475.42, F.S.; providing that a broker may |
| 59 | place a lien when allowed by law; providing an effective |
| 60 | date. |
| 61 |
|
| 62 | Be it Enacted by the Legislature of the State of Florida: |
| 63 |
|
| 64 | Section 1. Part III of chapter 475, Florida Statutes, |
| 65 | consisting of sections 475.700, 475.701, 475.703, 475.705, |
| 66 | 475.707, 475.709, 475.711, 475.713, 475.715, 475.717, and |
| 67 | 475.719, is created to read: |
| 68 | 475.700 Popular name.--Sections 475.700-475.719 may be |
| 69 | cited 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 |
| 73 | into on or after the effective date of this act between an owner |
| 74 | of commercial real estate and a broker that obligates the owner |
| 75 | to pay a commission to the broker for licensed services provided |
| 76 | by the broker relating to the sale or disposition of the |
| 77 | commercial real estate as specified in the contract. |
| 78 | (3) "Closing" means the delivery, exchange, and release of |
| 79 | documents and funds for the completion of a transaction for the |
| 80 | disposition of commercial real estate. |
| 81 | (4) "Closing agent" means the person who receives |
| 82 | documents and funds for recording and disbursement in closing a |
| 83 | transaction for the disposition of commercial real estate. |
| 84 | (5) "Commercial real estate" means a fee simple interest |
| 85 | or other possessory estate in real property, except an interest |
| 86 | in real property that is: |
| 87 | (a) Improved with one single-family residential unit or |
| 88 | one multifamily structure containing one to four residential |
| 89 | units; |
| 90 | (b) Unimproved and the maximum permitted development is |
| 91 | one to four residential units under any restrictive covenants, |
| 92 | zoning regulations, or comprehensive plan applicable to that |
| 93 | real property; or |
| 94 | (c) Improved with single-family residential units such as |
| 95 | condominiums, townhouses, timeshares, mobile homes, or houses in |
| 96 | a subdivision that may be legally sold, leased, or otherwise |
| 97 | conveyed on a unit-by-unit basis, regardless of whether these |
| 98 | units may be a part of a larger building or parcel containing |
| 99 | more than four residential units. |
| 100 | (6) "Commission" means any fee or other compensation that |
| 101 | an owner agrees to pay a broker for licensed services as |
| 102 | specified in a brokerage agreement. |
| 103 | (7) "Commission notice" means the written notice claiming |
| 104 | a commission made by a broker under s. 475.705. |
| 105 | (8) "Days" means calendar days, but if a period would end |
| 106 | on a day other than a business day, then the last day of that |
| 107 | period shall instead be the next business day. |
| 108 | (9) "Disposition" means a voluntary conveyance or transfer |
| 109 | of the title to or other ownership interest in any commercial |
| 110 | real estate specified in a brokerage agreement. A disposition |
| 111 | does not include a transfer pursuant to a foreclosure sale and |
| 112 | does not include a lease. |
| 113 | (10) "Disputed reserved proceeds" means the portion of the |
| 114 | owner's net proceeds reserved by a closing agent under s. |
| 115 | 475.709 that the owner disputes the broker's right to receive |
| 116 | such reserved proceeds under s. 475.709(5). |
| 117 | (11) "Owner" means a person that is vested with fee simple |
| 118 | title or a possessory estate in commercial real estate. |
| 119 | (12) "Owner's net proceeds" means the gross sales proceeds |
| 120 | that the owner is entitled to receive from the disposition of |
| 121 | any commercial real estate specified in a brokerage agreement, |
| 122 | less the following: |
| 123 | (a) Any money that is required to pay any encumbrance, |
| 124 | claim, or lien that has priority over the recorded commission |
| 125 | notice as provided in s. 475.715 other than an encumbrance, |
| 126 | claim, or lien that the buyer of the commercial real estate |
| 127 | authorizes to remain after the disposition. |
| 128 | (b) Any costs incurred by the owner to close the |
| 129 | disposition, including, but not limited to, real estate transfer |
| 130 | tax, title insurance premiums, ad valorem taxes and assessments, |
| 131 | and escrow fees payable by the owner pursuant to an agreement |
| 132 | with the buyer. |
| 133 | (13) "Real property" means one or more parcels or tracts |
| 134 | of land located in this state, including any appurtenances and |
| 135 | improvements. |
| 136 | 475.703 Broker's lien for sales commission.-- |
| 137 | (1) A broker has a lien upon the owner's net proceeds from |
| 138 | the disposition of commercial real estate for any commission |
| 139 | earned by the broker with respect to that disposition pursuant |
| 140 | to a brokerage agreement. The lien upon the owner's net proceeds |
| 141 | pursuant to this part for a broker's commission is a lien upon |
| 142 | personal property, attaches to the owner's net proceeds only, |
| 143 | and does not attach to any interest in real property. |
| 144 | (2) For purposes of this part, a commission is earned on |
| 145 | the earlier of the date that: |
| 146 | (a) An event occurs under the brokerage agreement that |
| 147 | defines when the commission is earned; or |
| 148 | (b) The owner enters into a contract for the disposition |
| 149 | of all or part of the commercial real estate specified in the |
| 150 | brokerage agreement, provided that a commission would be payable |
| 151 | to the broker pursuant to the brokerage agreement if the |
| 152 | disposition occurs under that contract. |
| 153 | (3) For the purposes of this part, a commission is payable |
| 154 | at the time provided in the brokerage agreement. If payment of |
| 155 | the commission is conditioned on the occurrence of an event and |
| 156 | that event does not occur, a broker may not enforce a lien for |
| 157 | that commission under this part. |
| 158 | (4) A broker's lien for commission arising under this |
| 159 | part: |
| 160 | (a) Belongs to the broker named in the brokerage agreement |
| 161 | and not to an employee or independent contractor of the broker. |
| 162 | (b) Cannot be assigned voluntarily or by operation of law |
| 163 | and 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, |
| 166 | regardless of whether that person may execute and bind the |
| 167 | broker to a brokerage agreement. |
| 168 | (5) A broker shall disclose to the owner at or before the |
| 169 | time the owner executes the brokerage agreement that this part |
| 170 | creates lien rights for a commission earned by the broker that |
| 171 | are not waivable before the commission is earned by the broker. |
| 172 | A broker may not enforce a lien under this part for a commission |
| 173 | earned under a brokerage agreement for which the disclosure |
| 174 | required by this subsection was not made. A disclosure in |
| 175 | substantially the following form shall be sufficient: "The |
| 176 | Florida Commercial Real Estate Sales Commission Lien Act |
| 177 | provides that when a broker has earned a commission by |
| 178 | performing licensed services under a brokerage agreement with |
| 179 | you, the broker may claim a lien against your net sales proceeds |
| 180 | for the broker's commission. The broker's lien rights under the |
| 181 | act cannot be waived before the commission is earned." |
| 182 | 475.705 Contents of commission notice; delivery to owner |
| 183 | and closing agent.-- |
| 184 | (1) A commission notice made by a broker with respect to a |
| 185 | commission claimed under this part shall be in writing, shall be |
| 186 | signed and sworn to or affirmed by the broker under penalty of |
| 187 | perjury before a notary public, and shall include the following: |
| 188 | (a) The name of the owner of the commercial real estate |
| 189 | who 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 |
| 192 | license number of the broker. |
| 193 | (d) The effective date of the brokerage agreement. |
| 194 | (e) The amount of the commission claimed by the broker, |
| 195 | which may be stated in a dollar amount or may be stated in the |
| 196 | form of a formula determining the amount, such as a percentage |
| 197 | of the sales price. |
| 198 | (f) A statement under penalty of perjury that the broker |
| 199 | has read the commission notice, knows its contents, believes the |
| 200 | same to be true and correct, and makes the commission claim |
| 201 | pursuant to the brokerage agreement described in the notice. |
| 202 | (g) A statement that the commission notice or a copy |
| 203 | thereof has been delivered to the owner and that the commission |
| 204 | notice may be recorded in the public records of the county or |
| 205 | counties where the commercial real estate is located. |
| 206 | (h) A statement that this part provides that if the owner |
| 207 | disputes the claimed commission the owner shall notify the |
| 208 | closing agent of such dispute not later than 5 days after the |
| 209 | closing, or the owner will be deemed to have confirmed the |
| 210 | commission and this part will require the closing agent to pay |
| 211 | the commission to the broker from the owner's net proceeds from |
| 212 | the disposition of the commercial real estate. |
| 213 | (2) A commission notice in substantially the following |
| 214 | form 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 |
|
| 219 | Notice is hereby given pursuant to the Florida Commercial Real |
| 220 | Estate Sales Commission Lien Act, part III of chapter 475, |
| 221 | Florida Statutes (the "act"), that the undersigned real estate |
| 222 | broker is entitled to receive a sales commission in the amount |
| 223 | set forth below from the owner named below pursuant to the terms |
| 224 | of a written brokerage commission agreement regarding the |
| 225 | commercial real estate described below, and the undersigned |
| 226 | broker claims a lien under the act against the owner's net |
| 227 | proceeds from the disposition of the commercial real estate. The |
| 228 | act and this commission notice do not create a lien against the |
| 229 | commercial real estate itself, but only against the owner's net |
| 230 | proceeds. |
| 231 |
|
| 232 | 1. Name of the owner who is obligated to pay the commission: |
| 233 | _____________________________________________ |
| 234 | 2. Legal description of the commercial real estate: |
| 235 | _____________________________________________ |
| 236 | 3. Name, mailing address, telephone number, and Florida broker |
| 237 | license number of the undersigned broker: |
| 238 | ______________________________ |
| 239 | ______________________________ |
| 240 | ______________________________ |
| 241 | 4. Effective date of the written brokerage commission agreement |
| 242 | between the owner and the broker under which the commission is |
| 243 | or will be payable: ________, ____ |
| 244 | 5. 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 | _____________________________________________. |
| 249 | 6. The undersigned broker, under penalty of perjury, hereby |
| 250 | swears or affirms that the undersigned broker has read this |
| 251 | commission notice, knows its contents and believes the same to |
| 252 | be true and correct, and that the undersigned broker is making |
| 253 | this commission claim pursuant to the written brokerage |
| 254 | commission agreement described in this commission notice. |
| 255 | 7. The undersigned broker confirms that this commission notice |
| 256 | or a copy thereof has been delivered to the owner. |
| 257 |
|
| 258 | Signed: ________(broker)___________ |
| 259 |
|
| 260 | Signed and sworn to or affirmed under penalty of perjury before |
| 261 | me, a notary public, this _____ day of _______, ____, by |
| 262 | ___________ |
| 263 |
|
| 264 | Signed: ________(notary public)____ |
| 265 | WARNING TO OWNER: The act provides that if you dispute the |
| 266 | commission claimed in this commission notice, you must notify |
| 267 | the closing agent of the dispute no later than 5 days after the |
| 268 | closing. If you fail to notify the closing agent before that |
| 269 | date that you dispute the commission, you will be deemed to have |
| 270 | confirmed the commission and the act will require the closing |
| 271 | agent to pay the commission to the broker from your net proceeds |
| 272 | from the disposition of the commercial real estate. |
| 273 |
|
| 274 | This commission notice may be recorded in the public records of |
| 275 | the county or counties where the commercial real estate is |
| 276 | located. |
| 277 | (3) Subject to subsection (4), if a broker wishes to |
| 278 | enforce a lien for a commission under this part, the broker |
| 279 | shall, within 30 days after a commission is earned by the broker |
| 280 | pursuant to s. 475.703(2) and at least 1 day before the closing, |
| 281 | deliver a copy of the commission notice to: |
| 282 | (a) The owner of the commercial real estate specified in |
| 283 | the brokerage agreement. |
| 284 | (b) The closing agent designated to close the transaction |
| 285 | for the disposition of the commercial real estate, if the broker |
| 286 | then knows the identity of the closing agent. If the identity of |
| 287 | the closing agent thereafter becomes known to the broker, then |
| 288 | the broker shall deliver a copy of the commission notice to the |
| 289 | closing agent within 3 days after the broker acquires such |
| 290 | knowledge and at least 1 day before the closing. |
| 291 | (4) Except as provided in this subsection, a broker who |
| 292 | fails to deliver a copy of a commission notice as required under |
| 293 | subsection (3) within the period specified therein may not |
| 294 | enforce a lien for the commission under this part. If a broker |
| 295 | fails to deliver a copy of the commission notice within said |
| 296 | period solely because the owner entered into a contract for the |
| 297 | disposition of the commercial real estate without the knowledge |
| 298 | of the broker, the broker may enforce a lien for the commission |
| 299 | under this part if: |
| 300 | (a) The copy of the commission notice is delivered to the |
| 301 | owner and the closing agent before the closing agent disburses |
| 302 | the owner's net proceeds to the owner. |
| 303 | (b) The broker executes and delivers to the closing agent |
| 304 | a sworn affidavit stating that the copy of the commission notice |
| 305 | was not delivered within the time period specified in subsection |
| 306 | (3) solely because the owner entered into a contract for the |
| 307 | disposition of the commercial real estate without the knowledge |
| 308 | of the broker. |
| 309 |
|
| 310 | Notwithstanding the provisions of this subsection, a broker who |
| 311 | fails to deliver a copy of a commission notice to the owner and |
| 312 | the closing agent before the disbursement of the owner's net |
| 313 | proceeds may not enforce a lien for the commission under this |
| 314 | part, and the delivery of a copy of a commission notice after |
| 315 | such disbursement is ineffective under this part. |
| 316 | 475.707 Recording commission notice; effectiveness.-- |
| 317 | (1) After a broker delivers the copies of a commission |
| 318 | notice as provided in s. 475.705, the broker may record the |
| 319 | commission notice in the public records maintained by the clerk |
| 320 | of court in the county or counties in which the commercial real |
| 321 | estate is located. |
| 322 | (a) Subject to the limitation in paragraph (b), the |
| 323 | broker's lien created by this part against the owner's net |
| 324 | proceeds is perfected by such recording of the commission notice |
| 325 | and takes priority pursuant to this part as of the date of the |
| 326 | recording of the commission notice. The priority of the lien |
| 327 | does not relate back to the date of the brokerage agreement. |
| 328 | (b) The recording of the commission notice shall not |
| 329 | constitute constructive notice to a closing agent unless the |
| 330 | commission notice has been of record for at least 60 days. |
| 331 | (2) A recorded commission notice is effective under this |
| 332 | part only with respect to dispositions made by the owner named |
| 333 | in the commission notice and after the recordation of a deed |
| 334 | from the owner conveying the commercial real estate specified in |
| 335 | the commission notice to a bona fide purchaser for value the |
| 336 | commission notice is ineffective with respect to any subsequent |
| 337 | dispositions of that commercial real estate. |
| 338 | (3) A commission notice recorded under this part expires 1 |
| 339 | year after the date of recording, unless the brokerage agreement |
| 340 | remains effective after the expiration date of the commission |
| 341 | notice and the broker records an extension notice in the same |
| 342 | public records within the last 60 days before such expiration |
| 343 | date. An extension notice shall refer to the recording |
| 344 | information of the original commission notice, shall state that |
| 345 | the brokerage agreement remains effective, and shall include the |
| 346 | information and be executed in the manner as required by s. |
| 347 | 475.705(1) for the original commission notice. A timely recorded |
| 348 | extension notice shall extend the expiration date of the |
| 349 | original recorded commission notice by 1 additional year. |
| 350 | Successive extension notices may be recorded for so long as the |
| 351 | brokerage agreement remains effective between the broker and the |
| 352 | owner. Within 10 days after recording an extension notice the |
| 353 | broker shall deliver a copy thereof to the owner. |
| 354 | (4) The delivery or recording of a commission notice or |
| 355 | the enforcement of a commission claim by a broker under this |
| 356 | part does not relieve the owner from the owner's obligation to |
| 357 | close a disposition transaction for any commercial real estate. |
| 358 | (5) Whenever a commission notice is recorded and a |
| 359 | condition or event occurs or fails to occur that would preclude |
| 360 | the broker from receiving the claimed commission under the terms |
| 361 | of the brokerage agreement, including the filing of a commission |
| 362 | notice in a manner that does not comply with this part, the |
| 363 | broker shall, within 7 days following demand by the owner, |
| 364 | record a written release of the commission notice in the public |
| 365 | records of the county where the commission notice was recorded. |
| 366 | (6) If a broker records a commission notice pursuant to |
| 367 | this section and the claimed commission is paid or the |
| 368 | commission notice is otherwise discharged or satisfied pursuant |
| 369 | to this part, the broker shall, within 7 days after the |
| 370 | commission is paid or the commission notice is otherwise |
| 371 | discharged or satisfied, record a written release of the |
| 372 | commission notice in the public records of the county where the |
| 373 | commission notice was recorded. |
| 374 | 475.709 Duties of closing agent; reservation of owner's |
| 375 | net proceeds.-- |
| 376 | (1)(a) The closing agent shall reserve from the owner's |
| 377 | net proceeds an amount equal to the commission claimed by the |
| 378 | broker in the commission notice if, before the closing agent |
| 379 | disburses the owner's net proceeds from the closing of a |
| 380 | disposition of commercial real estate: |
| 381 | 1. A commission notice pertaining to the commercial real |
| 382 | estate is delivered to the closing agent in accordance with s. |
| 383 | 475.705; |
| 384 | 2. A commission notice pertaining to the commercial real |
| 385 | estate has been recorded for at least 60 days pursuant to s. |
| 386 | 475.707 and has not expired or been released or canceled as |
| 387 | provided in this part; or |
| 388 | 3. The closing agent has actual knowledge of a commission |
| 389 | notice pertaining to the commercial real estate that has been |
| 390 | recorded pursuant to s. 475.707 and has not expired or been |
| 391 | released or canceled as provided in this part. |
| 392 | (b) If the owner's net proceeds are insufficient to pay |
| 393 | the full amount of the claimed commission, the closing agent |
| 394 | shall reserve the entire amount of the owner's net proceeds. The |
| 395 | closing agent shall release the reserved proceeds only in |
| 396 | accordance with the provisions of this part. |
| 397 | (2)(a) The closing agent designated to close a transaction |
| 398 | for the disposition of commercial real estate may require the |
| 399 | owner of the commercial real estate to deliver a sworn affidavit |
| 400 | identifying the commercial real estate and disclosing to the |
| 401 | closing agent: |
| 402 | 1. Whether the owner is a party to any brokerage agreement |
| 403 | under which any broker or brokers may have a right to claim a |
| 404 | commission from the disposition of the commercial real estate. |
| 405 | 2. The name, mailing address, and telephone number of any |
| 406 | brokers who may have a right to claim a commission, if known to |
| 407 | the owner. |
| 408 | 3. The amount of any and all commissions that may be |
| 409 | claimed under any brokerage agreement disclosed in the owner's |
| 410 | affidavit, to the best of the owner's knowledge and belief. |
| 411 | 4. Whether the owner confirms or disputes the amount of |
| 412 | any commission claimed from the disposition of the commercial |
| 413 | real estate as disclosed in the owner's affidavit. |
| 414 | (b) If the closing agent receives an affidavit from the |
| 415 | owner under this subsection disclosing that any commission may |
| 416 | be claimed from the disposition of the commercial real estate, |
| 417 | regardless of whether the owner confirms or disputes the |
| 418 | commission, the closing agent shall reserve from the owner's net |
| 419 | proceeds an amount equal to the total commission amount |
| 420 | disclosed by the owner in the affidavit. Upon request by a |
| 421 | broker who has a brokerage agreement with the owner covering the |
| 422 | commercial real estate identified in the owner's affidavit, the |
| 423 | closing agent shall deliver a copy of the affidavit to the |
| 424 | broker. If the owner's net proceeds are insufficient to pay the |
| 425 | full amount of the commission so disclosed, the closing agent |
| 426 | shall reserve the entire amount of the owner's net proceeds. If |
| 427 | the owner's affidavit discloses a commission amount that is |
| 428 | different from the commission amount required to be reserved |
| 429 | under subsection (1), the closing agent shall reserve the |
| 430 | greater of the two commission amounts. The closing agent shall |
| 431 | release the reserved proceeds only in accordance with the |
| 432 | provisions of this part. |
| 433 | (3) If the provisions of subsection (1) do not require the |
| 434 | closing agent to reserve against the owner's net proceeds on |
| 435 | account of a commission notice pertaining to the commercial real |
| 436 | estate, and if the closing agent receives an owner's affidavit |
| 437 | pursuant to subsection (2) stating that the owner is not a party |
| 438 | to any brokerage agreement under which any commission may be |
| 439 | claimed from the disposition of the commercial real estate, the |
| 440 | closing agent has no duty under this part to reserve any money |
| 441 | or property for a commission from the owner's net proceeds from |
| 442 | the disposition of the commercial real estate. |
| 443 | (4) If the closing agent determines that the owner's net |
| 444 | proceeds from a disposition of commercial real estate are |
| 445 | insufficient to pay the full amount of the commission claimed in |
| 446 | a commission notice or disclosed in an owner's affidavit, the |
| 447 | closing agent shall, within 3 days after making that |
| 448 | determination but no later than the closing of the disposition, |
| 449 | notify the owner and the broker of the determination. The |
| 450 | closing agent's determination that the owner's net proceeds are |
| 451 | insufficient under this part, however, does not relieve the |
| 452 | owner from the owner's contractual obligations under the |
| 453 | brokerage agreement to pay the full commission owing to the |
| 454 | broker. |
| 455 | (5) If the owner confirms that a commission is payable to |
| 456 | the broker, at the closing of the disposition of the commercial |
| 457 | real estate the closing agent shall release to the broker the |
| 458 | confirmed amount of the commission from the reserved proceeds. A |
| 459 | settlement statement executed by the owner and showing the |
| 460 | payment of a commission to the broker is confirmation by the |
| 461 | owner of the commission amount shown on the settlement |
| 462 | statement. If the owner disputes the broker's right to receive |
| 463 | all or any portion of the claimed commission, the closing agent |
| 464 | shall release to the broker from the reserved proceeds only the |
| 465 | undisputed portion of the commission, if any. Until the rights |
| 466 | of the owner and the broker with respect to the disputed |
| 467 | reserved proceeds are determined pursuant to s. 475.711 or s. |
| 468 | 475.713 or the owner and the broker otherwise agree in writing, |
| 469 | the closing agent shall not release the disputed reserved |
| 470 | proceeds to any person other than to deposit the same in the |
| 471 | registry of the court having jurisdiction of the dispute. |
| 472 | (6) The commission claimed in the commission notice shall |
| 473 | be deemed confirmed by the owner and the closing agent shall |
| 474 | release the reserved proceeds to the broker, if the closing |
| 475 | agent is required pursuant to subsection (1) to reserve any or |
| 476 | all 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 |
| 479 | claimed commission to the closing agent. |
| 480 | (c) The closing agent receives reasonably satisfactory |
| 481 | evidence that the broker delivered a copy of the commission |
| 482 | notice to the owner in accordance with s. 475.705. |
| 483 | (7) If the owner's net proceeds consist in whole or in |
| 484 | part of a purchase-money note, and if the money portion of the |
| 485 | owner's net proceeds is insufficient to pay the full amount of |
| 486 | the commission claimed, the broker's lien under this part for |
| 487 | the portion of the commission not paid from the money proceeds |
| 488 | shall attach to the purchase-money note and any security |
| 489 | therefor, and the closing agent shall reserve and release the |
| 490 | purchase-money note in accordance with this part in the same |
| 491 | manner as the money portion of the reserved proceeds. If the |
| 492 | owner and the broker are unable to agree within 5 days after the |
| 493 | closing regarding the closing agent's release of the purchase- |
| 494 | money note, the closing agent shall interplead the purchase- |
| 495 | money note along with any money reserved proceeds in accordance |
| 496 | with s. 475.711. |
| 497 | (8) If the disposition of the commercial real estate is |
| 498 | part of a like-kind exchange by the owner which is deferred from |
| 499 | federal income tax under section 1031 of the Internal Revenue |
| 500 | Code of 1986, as amended, and if all of the owner's net proceeds |
| 501 | in excess of undisputed commissions shall be delivered to a |
| 502 | third party in order to qualify the disposition for such tax |
| 503 | deferral treatment, the owner may substitute other cash, a |
| 504 | surety bond, an unconditional letter of credit, or other liquid |
| 505 | security acceptable to the broker in lieu of any disputed |
| 506 | reserved proceeds held by the closing agent under this section |
| 507 | or deposited in the court registry in accordance with s. |
| 508 | 475.711. |
| 509 | (9) Upon request of the closing agent or the owner, any |
| 510 | broker who has recorded a commission notice under s. 475.707 |
| 511 | shall submit a satisfaction or release of the commission notice |
| 512 | in recordable form to the closing agent to be held in escrow |
| 513 | pending the closing and the closing agent's release to the |
| 514 | broker of the portion of the owner's net proceeds reserved by |
| 515 | the closing agent under this section. The closing agent is |
| 516 | authorized to deduct from the reserved proceeds payable to the |
| 517 | broker the cost of recording the satisfaction or release of the |
| 518 | commission notice. |
| 519 | (10) Neither the closing agent's requirement for an |
| 520 | owner's affidavit pursuant to subsection (2), nor the closing |
| 521 | agent's reservation of any portion of an owner's net proceeds |
| 522 | pursuant to subsections (1) or (2), shall relieve the owner of |
| 523 | the owner's obligation to close the transaction for the |
| 524 | disposition of the commercial real estate, including, without |
| 525 | limitation, any obligation of the owner to the buyer under the |
| 526 | purchase and sale contract to discharge mortgages, liens, or |
| 527 | encumbrances against the commercial real estate that were |
| 528 | recorded after the commission notice and therefore are not |
| 529 | subtracted from gross sales proceeds when computing the owner's |
| 530 | net proceeds under s. 475.719. |
| 531 | (11) A closing agent is not liable to the owner, the |
| 532 | broker, or any other person in any civil action for any action |
| 533 | taken by the closing agent to comply with the provisions of this |
| 534 | part. |
| 535 | (12) No provision of this part shall require a closing |
| 536 | agent to serve involuntarily more than 5 days after a closing as |
| 537 | an escrow agent or stakeholder for any monies or other property |
| 538 | that are disputed by the owner and the broker under the |
| 539 | provisions of this part. |
| 540 | 475.711 Interpleader or other proceedings; deposit of |
| 541 | reserved proceeds in court registry; discharge of closing agent |
| 542 | from further liability.-- |
| 543 | (1) The closing agent shall, by interpleader action or |
| 544 | other legal proceeding, seek adjudication of the rights of the |
| 545 | parties with respect to disputed reserved proceeds by the county |
| 546 | court or circuit court, whichever may have jurisdiction of |
| 547 | controversies in the amount of the disputed reserved proceeds, |
| 548 | in a county where all or a portion of the commercial real estate |
| 549 | is located if, after the closing of a transaction for the |
| 550 | disposition of the commercial real estate: |
| 551 | (a) The closing agent has reserved all or a portion of the |
| 552 | owner's net proceeds pursuant to s. 475.709 and the owner |
| 553 | disputes the release to the broker of all or any portion of the |
| 554 | reserved proceeds. |
| 555 | (b) The owner and the broker have not agreed in writing, |
| 556 | within 5 days after the closing, regarding the closing agent's |
| 557 | release of the disputed reserved proceeds. |
| 558 | (c) Neither the owner nor the broker have commenced a |
| 559 | civil action to determine the rights of the parties with respect |
| 560 | to the disputed reserved proceeds. |
| 561 | (2) Unless otherwise agreed to by the owner and the broker |
| 562 | in writing, the closing agent shall deposit the net amount of |
| 563 | disputed reserved proceeds in the registry of the court having |
| 564 | jurisdiction of any legal action or proceeding to determine the |
| 565 | rights of the parties in the disputed reserved proceeds, whether |
| 566 | commenced by the closing agent under subsection (1) or commenced |
| 567 | by the owner or the broker under s. 475.713 or otherwise. The |
| 568 | closing agent shall determine the net amount of disputed |
| 569 | reserved proceeds deposited in the court registry by deducting |
| 570 | from the disputed reserved proceeds: |
| 571 | (a) Any costs incurred by the closing agent to commence |
| 572 | such action or proceeding, or to appear in any such action or |
| 573 | proceeding commenced by the owner or the broker, including |
| 574 | reasonable attorney's fees. |
| 575 | (b) The costs of recording the affidavit described in |
| 576 | subsection (3) if any commission notice has been recorded. |
| 577 | (c) The service charges of the clerk of court under s. |
| 578 | 28.24 for receiving the net amount of such disputed reserved |
| 579 | proceeds into the registry of the court. |
| 580 | (3) If a commission notice has been recorded in the public |
| 581 | records of the county or counties where the commercial real |
| 582 | estate is located, upon depositing the net disputed reserved |
| 583 | proceeds with the clerk of court pursuant to subsection (2), the |
| 584 | closing agent shall execute and record an affidavit referring to |
| 585 | the recorded commission notice and stating that the net disputed |
| 586 | reserved proceeds have been so deposited in accordance with this |
| 587 | part. The recording of the affidavit shall operate to release |
| 588 | the recorded commission notice. |
| 589 | (4) If a closing agent deposits the net disputed reserved |
| 590 | proceeds with the clerk of court pursuant to subsection (2), the |
| 591 | closing agent is discharged from any further liability or |
| 592 | responsibility concerning the disputed reserved proceeds. |
| 593 | 475.713 Civil action concerning commission; order to show |
| 594 | cause; hearing; release of proceeds; award of costs and |
| 595 | attorney's fees.-- |
| 596 | (1) If a commission notice claiming a commission is |
| 597 | delivered to an owner pursuant to s. 475.705 and the owner |
| 598 | disputes the claimed commission, the owner or the broker may |
| 599 | file a civil action concerning the commission claim in the |
| 600 | county court or circuit court, whichever has jurisdiction of |
| 601 | controversies in the amount of the claimed commission, of the |
| 602 | county where the commercial real estate or a portion of the |
| 603 | commercial real estate is located. |
| 604 | (2) In a civil action by the owner, at the time the |
| 605 | summons is issued or at any time before the complaint is |
| 606 | answered by the broker, the owner may apply to the court for an |
| 607 | order directing the broker to appear before the court at a time |
| 608 | not earlier than 7 days or later than 15 days after the date of |
| 609 | service of the motion and order on the broker to show cause why |
| 610 | the commission claim should not be dismissed. The motion must |
| 611 | state the grounds upon which relief is sought and must be |
| 612 | supported by the affidavit of the owner setting forth a concise |
| 613 | statement of the facts upon which the motion is based. The order |
| 614 | to show cause shall clearly state that if the broker fails to |
| 615 | appear at the time and place specified in the order, the |
| 616 | broker's claim of lien against the owner's net proceeds under |
| 617 | this part shall be released, with prejudice, and the broker |
| 618 | shall be ordered to pay the costs incurred by the owner and the |
| 619 | closing agent, including reasonable attorney's fees. |
| 620 | (3) The court shall issue an order releasing the broker's |
| 621 | claim of lien against the owner's net proceeds from such |
| 622 | disposition, discharging any commission notice that may be have |
| 623 | been recorded, ordering the release to the owner of the disputed |
| 624 | reserved proceeds, and awarding costs and reasonable attorney's |
| 625 | fees to the owner to be paid by the broker if, following a |
| 626 | hearing, the court determines that the owner is not a party to a |
| 627 | brokerage agreement that will result in the owner being |
| 628 | obligated to pay the broker the claimed commission or any |
| 629 | portion thereof with respect to the disposition of the |
| 630 | commercial real estate identified in the commission notice. If |
| 631 | the court determines that the owner is a party to a brokerage |
| 632 | agreement that will result in the owner being obligated to pay |
| 633 | the broker the claimed commission or any portion thereof with |
| 634 | respect to the disposition of the commercial real estate |
| 635 | identified in the commission notice, the court shall issue an |
| 636 | order so stating, ordering the release to the broker of the |
| 637 | disputed reserved proceeds or such portion thereof to which the |
| 638 | court determines that the broker is entitled, and awarding costs |
| 639 | and reasonable attorney's fees to the broker to be paid by the |
| 640 | owner. Such orders are final judgments. |
| 641 | (4) A certified copy of any order issued by the court |
| 642 | pursuant to subsection (3) discharging a recorded commission |
| 643 | notice shall be recorded at the expense of the broker in the |
| 644 | public records where the commission notice was recorded, and |
| 645 | such order shall operate as a cancellation of the recorded |
| 646 | commission notice. |
| 647 | (5)(a) In a civil action commenced by the owner or the |
| 648 | broker under this section or in an interpleader action or other |
| 649 | proceeding commenced by the closing agent under s. 475.711, the |
| 650 | owner or the broker that is not the prevailing party shall be |
| 651 | required to pay: |
| 652 | 1. The costs and reasonable attorney's fees incurred in |
| 653 | the action by the prevailing party. |
| 654 | 2. The costs and reasonable attorney's fees incurred in |
| 655 | the action by the closing agent. |
| 656 | 3. The amount of any costs, recording charges, and service |
| 657 | charges of the clerk of court that were deducted from the |
| 658 | disputed reserved proceeds under s. 475.711(2) in determining |
| 659 | the net amount thereof deposited into the registry of the court. |
| 660 | (b) If the court determines that neither the owner nor the |
| 661 | broker is the prevailing party, the amounts set forth in |
| 662 | subparagraphs 1.and 2. of this subsection shall be divided |
| 663 | equally between and paid by the owner and the broker. |
| 664 | (6) Proceedings conducted pursuant to this section shall |
| 665 | not affect rights and remedies otherwise available to the owner |
| 666 | or the broker under other applicable law. |
| 667 | 475.715 Priority of recorded commission notice.--All |
| 668 | statutory liens, consensual liens, mortgages, deeds of trust, |
| 669 | assignments of rents, and other encumbrances, including all |
| 670 | advances or charges made or accruing thereunder, whether |
| 671 | voluntary or obligatory, and all modifications, extensions, |
| 672 | renewals, and replacements thereof, recorded prior to the |
| 673 | recording of a commission notice pursuant to the provisions of |
| 674 | s. 475.707, have priority over the commission notice, and the |
| 675 | amount required to discharge such prior recorded liens shall be |
| 676 | subtracted from gross sales proceeds in computing the owner's |
| 677 | net proceeds unless the buyer permits the same to remain a lien |
| 678 | against the title to the commercial real estate. A prior |
| 679 | recorded lien includes, without limitation, a valid construction |
| 680 | lien claim that is recorded after the recording of the broker's |
| 681 | commission notice but which relates back to a notice of |
| 682 | commencement recorded under s. 713.13 prior to the recording |
| 683 | date of the broker's commission notice. |
| 684 | 475.717 Service of notice.--Notices to be delivered to a |
| 685 | party pursuant to this part other than service of process as |
| 686 | required in civil actions shall be by service of process, by |
| 687 | registered or certified mail with return receipt requested, or |
| 688 | by personal or electronic delivery and obtaining evidence of |
| 689 | delivery in the form of a receipt or other paper or electronic |
| 690 | acknowledgment by the party to whom the notice is delivered. |
| 691 | Delivery is effective at the time of personal service, personal |
| 692 | or electronic delivery, or 3 days following deposit in the mail |
| 693 | as required by this section. Notice to a broker or owner may be |
| 694 | given to the address of the broker or owner that is contained in |
| 695 | the brokerage agreement or such other address as is contained in |
| 696 | a written notice from the broker or owner to the party giving |
| 697 | the notice. If no address is provided in the brokerage |
| 698 | agreement, the notice to the broker may be given to the broker's |
| 699 | address contained in the commission notice. Notice to a closing |
| 700 | agent shall be addressed to the individual responsible for the |
| 701 | closing if the person sending the notice knows that individual's |
| 702 | name. |
| 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 |
| 705 | payment from the buyer of commercial real estate of any fee or |
| 706 | other compensation for licensed services, as specified in a |
| 707 | written contract made between the buyer and the broker on or |
| 708 | after the effective date of this act relating to the buyer's |
| 709 | purchase of the commercial real estate. |
| 710 | (1) A written contract between a buyer and a buyer's |
| 711 | broker for the payment by the buyer of any fee or other |
| 712 | compensation to the buyer's broker for licensed services |
| 713 | relating to the sale or disposition of commercial real estate to |
| 714 | the buyer is not a brokerage agreement with the owner under this |
| 715 | part, and the buyer's broker is not entitled under this part to |
| 716 | record any commission notice, to claim any lien against |
| 717 | commercial real estate, or to claim any lien against the owner's |
| 718 | net proceeds from the sale or disposition of commercial real |
| 719 | estate. |
| 720 | (2) If an owner enters into a written contract with a |
| 721 | buyer for the sale or disposition of any commercial real estate |
| 722 | that will entitle the buyer's broker to receive a fee or other |
| 723 | compensation from the buyer under the terms of the buyer's |
| 724 | broker's written contract with the buyer, the buyer's broker may |
| 725 | give notice of the buyer's broker's right to receive such |
| 726 | payment to the closing agent, the owner, the buyer, or any other |
| 727 | party to the sale or disposition or the financing thereof, |
| 728 | provided that such notice may be given without violating any |
| 729 | confidentiality provisions contained in either such written |
| 730 | contract. |
| 731 | (3) No such notice given by the buyer's broker pursuant to |
| 732 | subsection (2) shall constitute a tortious interference with the |
| 733 | sale or disposition or financing of the commercial real estate, |
| 734 | except this section shall not affect the rights and remedies |
| 735 | otherwise available to the owner, the buyer, or the buyer's |
| 736 | broker under other applicable law. |
| 737 | Section 2. Part IV of chapter 475, Florida Statutes, |
| 738 | consisting of sections 475.800, 475.801, 475.803, 475.805, |
| 739 | 475.807, 475.809, 475.811, and 475.813, is created to read: |
| 740 | 475.800 Short title.--Sections 475.800-475.813 may be |
| 741 | cited as the "Commercial Real Estate Leasing Commission Lien |
| 742 | Act." |
| 743 | 475.801 Definitions.--As used in this part: |
| 744 | (1) "Automatic renewal commission" means a renewal |
| 745 | commission for which the brokerage agreement does not expressly |
| 746 | require the broker to perform any additional services in order |
| 747 | to receive the renewal commission. |
| 748 | (2) "Broker" has the same meaning as in s. 475.01. |
| 749 | (3) "Brokerage agreement" means a written contract, |
| 750 | entered into on or after the effective date of this act, between |
| 751 | an owner of commercial real estate and a broker that obligates |
| 752 | the owner to pay a commission to the broker for licensed |
| 753 | services provided by the broker relating to the leasing of the |
| 754 | commercial real estate as specified in the contract. |
| 755 | (4) "Commercial real estate" means a fee simple interest |
| 756 | or other possessory estate in real property, except an interest |
| 757 | in real property that is: |
| 758 | (a) Improved with one single-family residential unit or |
| 759 | one multifamily structure containing one to four residential |
| 760 | units; |
| 761 | (b) Unimproved and the maximum permitted development is |
| 762 | one to four residential units under any restrictive covenants, |
| 763 | zoning regulations, or comprehensive plan applicable to that |
| 764 | real property; or |
| 765 | (c) Improved with single-family residential units such as |
| 766 | condominiums, townhouses, timeshares, mobile homes, or houses in |
| 767 | a subdivision that may be legally sold, leased, or otherwise |
| 768 | conveyed on a unit-by-unit basis, regardless of whether these |
| 769 | units may be a part of a larger building or parcel containing |
| 770 | more than four residential units. |
| 771 | (5) "Commission" means any fee or other compensation that |
| 772 | an owner agrees to pay a broker for licensed services as |
| 773 | specified in a brokerage agreement. |
| 774 | (6) "Days" means calendar days, but if a period would end |
| 775 | on a day other than a business day, the last day of that period |
| 776 | shall instead be the next business day. |
| 777 | (7) "Lease" means a written agreement creating a |
| 778 | relationship of landlord and tenant with respect to commercial |
| 779 | real estate, such that the tenant acquires from the landlord the |
| 780 | right to possess the commercial real estate for a specified |
| 781 | period of time. |
| 782 | (8) "Lien notice" means the written notice of lien made by |
| 783 | a broker claiming a commission under s. 745.805. |
| 784 | (9) "Owner" means a person that is vested with fee simple |
| 785 | title or a possessory estate, including a leasehold, in |
| 786 | commercial real estate that is the subject of a lease. For |
| 787 | purposes of this part, the owner obligated to pay a commission |
| 788 | under a brokerage agreement may be a landlord or a tenant. |
| 789 | (10) "Real property" means one or more parcels or tracts |
| 790 | of land located in this state, including any appurtenances and |
| 791 | improvements. |
| 792 | (11) "Renewal commission" means an additional commission |
| 793 | that may become payable to a broker under a brokerage agreement |
| 794 | if a lease subject to that brokerage agreement is later renewed |
| 795 | or is later modified to expand the leased premises or extend the |
| 796 | lease term. |
| 797 | 475.803 Broker's lien for leasing commission.-- |
| 798 | (1) A broker has a lien upon the owner's interest in |
| 799 | commercial real estate for any commission earned by the broker |
| 800 | pursuant to a brokerage agreement with respect to a lease of the |
| 801 | commercial real estate. If the owner obligated to pay the |
| 802 | commission is the landlord, the broker's lien attaches to the |
| 803 | landlord's interest in the commercial real estate identified in |
| 804 | the brokerage agreement but not to the tenant's leasehold |
| 805 | estate. If the owner obligated to pay the commission is the |
| 806 | tenant, the broker's lien attaches to the tenant's leasehold |
| 807 | estate but not to the landlord's interest in the commercial real |
| 808 | estate. |
| 809 | (2) For purposes of this part, a commission other than a |
| 810 | renewal commission is earned on the earlier of the date that: |
| 811 | (a) An event occurs that, under the brokerage agreement, |
| 812 | defines when the commission is earned; or |
| 813 | (b) The owner enters into a lease of all or part of the |
| 814 | commercial real estate specified in the brokerage agreement, |
| 815 | provided that a commission would be payable to the broker |
| 816 | pursuant to the brokerage agreement for that lease. |
| 817 | (3) For the purposes of this part, a renewal commission |
| 818 | with respect to a lease renewal or lease modification is deemed |
| 819 | earned when the broker performs all additional services relating |
| 820 | to the lease renewal or lease modification that are expressly |
| 821 | required by the brokerage agreement. If the brokerage agreement |
| 822 | does not expressly require the broker to perform any additional |
| 823 | services in order to receive the renewal commission, the renewal |
| 824 | commission is an automatic renewal commission and is deemed |
| 825 | earned when the broker first earned a commission for that lease. |
| 826 | (4) For purposes of this part, a commission is payable at |
| 827 | the time provided in the brokerage agreement. If payment of the |
| 828 | commission is conditioned on the occurrence of an event and that |
| 829 | event does not occur, a broker may not enforce a lien for that |
| 830 | commission under this part. |
| 831 | (5) A broker's lien for commission arising under this |
| 832 | part: |
| 833 | (a) Belongs to the broker named in the brokerage agreement |
| 834 | and not to an employee or independent contractor of the broker. |
| 835 | (b) Cannot be assigned voluntarily or by operation of law |
| 836 | and 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, |
| 839 | regardless of whether that person may execute and bind the |
| 840 | broker to a brokerage agreement. |
| 841 | (6) A broker shall disclose to the owner at or before the |
| 842 | time the owner executes the brokerage agreement that this part |
| 843 | creates lien rights for a commission earned by the broker that |
| 844 | are not waivable before the commission is earned by the broker. |
| 845 | A broker may not enforce a lien under this part for a commission |
| 846 | earned under a brokerage agreement for which the disclosure |
| 847 | required by this subsection was not made. A disclosure in |
| 848 | substantially the following form shall be sufficient: "The |
| 849 | Florida Commercial Real Estate Leasing Commission Lien Act |
| 850 | provides that when a broker has earned a commission by |
| 851 | performing licensed services under a brokerage agreement with |
| 852 | you, the broker may claim a lien against your interest in the |
| 853 | property for the broker's commission. The broker's lien rights |
| 854 | under 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 |
| 857 | commission claimed under this part shall be in writing, shall be |
| 858 | signed and sworn to or affirmed by the broker under penalty of |
| 859 | perjury before a notary public, and shall include the following: |
| 860 | (a) The name of the owner of the commercial real estate |
| 861 | who is obligated to pay the claimed commission. |
| 862 | (b) A statement whether the owner obligated to pay the |
| 863 | commission is the landlord or the tenant under the lease for |
| 864 | which the commission is claimed. |
| 865 | (c) The name of the person owning the fee simple interest |
| 866 | in the commercial real estate, if other than the owner obligated |
| 867 | to pay the commission. |
| 868 | (d) The legal description of the commercial real estate. |
| 869 | (e) The name, mailing address, telephone number, and |
| 870 | license number of the broker. |
| 871 | (f) The effective date of the brokerage agreement. |
| 872 | (g) The amount of the commission claimed by the broker, |
| 873 | which may be stated in a dollar amount or may be stated in the |
| 874 | form of a formula determining the amount, such as a percentage |
| 875 | of the rents payable under the lease. |
| 876 | (h) A description of the lease sufficient to identify the |
| 877 | lease for which the commission is claimed, including, if then |
| 878 | known to the broker, the names of the landlord and tenant under |
| 879 | the lease, the date of the lease, and the identification of the |
| 880 | leased premises. |
| 881 | (i) A statement of whether the broker is claiming an |
| 882 | automatic renewal commission and the amount of such automatic |
| 883 | renewal commission or the formula for computing the same. |
| 884 | (j) A statement under penalty of perjury that the broker |
| 885 | has read the lien notice, knows its contents, believes the same |
| 886 | to be true and correct, and makes the commission claim pursuant |
| 887 | to the brokerage agreement described in the lien notice. |
| 888 | (2) A lien notice in substantially the following form |
| 889 | shall 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 |
|
| 894 | Notice is hereby given, pursuant to the Florida Commercial Real |
| 895 | Estate Leasing Commission Lien Act, part IV of chapter 475, |
| 896 | Florida Statutes (the "act"), that the undersigned real estate |
| 897 | broker is entitled to receive a leasing commission from the |
| 898 | owner named below pursuant to the terms of a written brokerage |
| 899 | commission agreement regarding a lease of the commercial real |
| 900 | estate described below, and the undersigned broker claims a lien |
| 901 | under the act against the owner's interest in the commercial |
| 902 | real estate in the amount set forth below. |
| 903 | 1. Name of the owner who is obligated to pay the commission: |
| 904 | _____________________________________________ |
| 905 | 2. (Check one:) The owner obligated to pay the commission is: |
| 906 | [ ] the landlord under the lease. |
| 907 | [ ] the tenant under the lease. |
| 908 | 3. Name of the person owing the fee simple interest in the |
| 909 | commercial real estate, if other than the owner who is obligated |
| 910 | to pay the commission: |
| 911 | _____________________________________________ |
| 912 | 4. Legal description of the commercial real estate: |
| 913 | _____________________________________________ |
| 914 | 5. Name, mailing address, telephone number, and Florida broker |
| 915 | license number of the undersigned broker: |
| 916 | ______________________________ |
| 917 | ______________________________ |
| 918 | ______________________________ |
| 919 | 6. Effective date of the written brokerage commission agreement |
| 920 | between the owner and the broker under which the commission is |
| 921 | or will be payable: _______, ____ |
| 922 | 7. 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 |
| 926 | amount]: _____________________________________________. |
| 927 | 8. The lease for which the commission is claimed is described |
| 928 | as follows [provide all information known to the broker]: |
| 929 | Name of landlord: _________________________ |
| 930 | Name of tenant: ___________________________ |
| 931 | Date of lease: ______________, _________ |
| 932 | Leased premises: __________________________ |
| 933 | 9. Automatic renewal commissions (check yes or no): Is the |
| 934 | undersigned broker claiming a commission that may become payable |
| 935 | if the lease is later renewed or modified to expand the leased |
| 936 | premises or to extend the lease term, but the written brokerage |
| 937 | commission agreement does not expressly require the broker to |
| 938 | perform any additional services in order to receive this later |
| 939 | commission? |
| 940 | [ ] Yes |
| 941 | [ ] No |
| 942 | If yes, specify the amount of such later commission or the |
| 943 | formula for computing the later commission: |
| 944 | _____________________________________________________________ |
| 945 | 10. The expiration date of this lien notice is 2 years after |
| 946 | the date of recording, unless the answer to paragraph 9 is yes, |
| 947 | in which case the expiration date of this lien notice for the |
| 948 | commission described in paragraph 9 is 10 years after the date |
| 949 | of recording. |
| 950 | 11. The undersigned broker, under penalty of perjury, hereby |
| 951 | swears or affirms that the undersigned broker has read this lien |
| 952 | notice, knows its contents and believes the same to be true and |
| 953 | correct, and that the undersigned broker is making this |
| 954 | commission claim pursuant to the written brokerage commission |
| 955 | agreement described in this lien notice. |
| 956 |
|
| 957 | Signed: ________(broker)___________ |
| 958 |
|
| 959 | Signed and sworn to or affirmed under penalty of perjury before |
| 960 | me, 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 |
| 967 | broker may record a lien notice in the public records maintained |
| 968 | by the clerk of court in the county or counties in which the |
| 969 | commercial real estate is located. The lien notice shall be |
| 970 | recorded no later than the earlier of: |
| 971 | 1. Ninety days after the tenant takes possession of the |
| 972 | leased premises or, in the case of a renewal commission that |
| 973 | requires the broker to perform additional services as provided |
| 974 | in s. 475.803(3), 90 days after the broker performs the |
| 975 | additional services required for the renewal commission; or |
| 976 | 2. The date on which the owner who is obligated to pay the |
| 977 | commission records in the public records a deed or assignment |
| 978 | transferring the owner's interest in the commercial real estate |
| 979 | to a bona fide purchaser for value. |
| 980 | (b) A broker who fails to record a lien notice within the |
| 981 | time period prescribed by this section may not enforce a lien |
| 982 | for the claimed commission under this part, and a lien notice |
| 983 | that is recorded outside of the time period prescribed by this |
| 984 | section is void. |
| 985 | (2) Within 7 days after recording the lien notice, the |
| 986 | broker shall deliver a copy of the lien notice to the owner |
| 987 | obligated to pay the claimed commission. |
| 988 | (3) The broker's lien created by this part against the |
| 989 | commercial real estate is perfected by such recording of the |
| 990 | lien notice and takes priority under this part as of the date of |
| 991 | the recording of the lien notice. The priority of the lien |
| 992 | notice does not relate back to the date of the brokerage |
| 993 | agreement. |
| 994 | (4) If the commission is to be paid in installments and |
| 995 | any of those installments are due after the lease is executed, |
| 996 | the lien notice is valid only to the extent that moneys remain |
| 997 | unpaid by the owner to the broker. |
| 998 | (5) A recorded lien notice is effective under this part |
| 999 | only with respect to leases made by the owner named in the lien |
| 1000 | notice and the lien notice is ineffective with respect to any |
| 1001 | leases that are made by: |
| 1002 | (a) A bona fide purchaser for value of the commercial real |
| 1003 | estate; |
| 1004 | (b) A purchaser at any mortgage foreclosure sale of the |
| 1005 | commercial real estate; or |
| 1006 | (c) Any successor owner acquiring the commercial real |
| 1007 | estate from a purchaser described in paragraphs (a) or (b). |
| 1008 | (6) Whenever a lien notice is recorded and a condition or |
| 1009 | event occurs or fails to occur that would preclude the broker |
| 1010 | from receiving the claimed commission under the terms of the |
| 1011 | brokerage agreement, including the filing of a lien notice in a |
| 1012 | manner that does not comply with this part, the broker shall, |
| 1013 | within 7 days following demand by the owner, record a written |
| 1014 | release of the lien notice in the public records of the county |
| 1015 | where the lien notice was recorded. |
| 1016 | (7) If a broker records a lien notice pursuant to this |
| 1017 | section and the claimed commission is paid or the lien notice is |
| 1018 | otherwise discharged or satisfied pursuant to this part, the |
| 1019 | broker shall, within 7 days after the commission is paid or the |
| 1020 | lien notice is otherwise discharged or satisfied, record a |
| 1021 | written release of the lien notice in the public records of the |
| 1022 | county where the lien notice was recorded. |
| 1023 | (8)(a) Except as provided in paragraph (b), a lien notice |
| 1024 | recorded by a broker under this part for a claimed commission |
| 1025 | expires 2 years after the date of recording, unless within that |
| 1026 | time the broker commences an action to foreclose the lien under |
| 1027 | s. 475.809 and records a notice of lis pendens in the public |
| 1028 | records of the county where the lien notice was recorded. |
| 1029 | (b) To the extent that a lien notice recorded by a broker |
| 1030 | under this part claims an automatic renewal commission that is |
| 1031 | earned but not then payable, the lien notice expires 10 years |
| 1032 | after the date of recording, unless within that time the broker |
| 1033 | commences an action to foreclose the lien under s. 475.809 and |
| 1034 | records a notice of lis pendens in the public records of the |
| 1035 | county where the lien notice was recorded. If the brokerage |
| 1036 | agreement remains effective, the broker may extend the |
| 1037 | expiration date of a lien notice for an automatic renewal |
| 1038 | commission by recording an extension notice in the same public |
| 1039 | records within the last 6 months before such expiration date. An |
| 1040 | extension notice shall refer to the recording information of the |
| 1041 | original lien notice, shall state that the brokerage agreement |
| 1042 | remains effective, and shall include the same information and be |
| 1043 | executed in the same manner as required by s. 475.805(1) for the |
| 1044 | original lien notice. A timely recorded extension notice shall |
| 1045 | extend the expiration date of the original recorded lien notice |
| 1046 | by 10 additional years. Successive extension notices may be |
| 1047 | recorded for so long as the brokerage agreement remains |
| 1048 | effective between the broker and the owner. Within 10 days after |
| 1049 | recording an extension notice, the broker shall deliver a copy |
| 1050 | thereof to the owner. |
| 1051 | (c) The owner or the owner's agent or attorney may elect |
| 1052 | to shorten the time within which the broker shall commence an |
| 1053 | action to foreclose a lien under s. 475.809, or to enforce a |
| 1054 | claim against a transfer bond or other security under s. |
| 1055 | 475.811, by recording in the clerk's office a notice of contest |
| 1056 | in substantially the following form: |
| 1057 |
|
| 1058 | NOTICE OF CONTEST OF BROKER'S LIEN |
| 1059 |
|
| 1060 | To: (Name and address of broker) _ |
| 1061 | You are notified that the undersigned contests the lien notice |
| 1062 | filed by you on _________, (year) , and recorded in Official |
| 1063 | Records Book _____, Page _____, of the public records of |
| 1064 | ______________ County, Florida, and that the time within which |
| 1065 | you may file suit to enforce your lien is limited to 60 days |
| 1066 | from the date of service of this notice. This _____ day of |
| 1067 | _______, (year) . |
| 1068 |
|
| 1069 | Signed: (Owner or Attorney) |
| 1070 |
|
| 1071 | The lien of any broker upon whom such a notice of contest is |
| 1072 | served and who fails to institute a suit to enforce the lien |
| 1073 | within 60 days after service of such notice of contest shall be |
| 1074 | extinguished automatically. The clerk shall mail a copy of the |
| 1075 | notice of contest to the broker at the address shown in the lien |
| 1076 | notice or most recent amendment thereto and shall certify to |
| 1077 | such service on the face of the notice of contest and record the |
| 1078 | notice of contest. Service of the notice of contest by the clerk |
| 1079 | shall be deemed complete upon mailing. |
| 1080 | 475.809 Foreclosure of lien; civil action by owner; award |
| 1081 | of costs and attorney's fees.-- |
| 1082 | (1) A broker may enforce a lien for a commission that is |
| 1083 | earned and payable under this part by a foreclosure suit in the |
| 1084 | same manner as if the lien notice were a mortgage recorded |
| 1085 | against the commercial real estate of the owner obligated to pay |
| 1086 | the claimed commission. The foreclosure shall be commenced in |
| 1087 | the county court or circuit court, whichever may have |
| 1088 | jurisdiction of controversies in the amount of the claimed |
| 1089 | commission, of the county where the lien notice was recorded. |
| 1090 | The foreclosure action shall be commenced before the lien notice |
| 1091 | expires or is extinguished under s. 475.807(8), otherwise the |
| 1092 | lien notice shall become null and void and have no further force |
| 1093 | or effect. |
| 1094 | (2) If a lien notice is recorded pursuant to s. 475.807 |
| 1095 | and the owner disputes the claimed commission, the owner may |
| 1096 | file a civil action seeking to discharge the lien in the county |
| 1097 | court or circuit court, whichever may have jurisdiction of |
| 1098 | controversies in the amount of the claimed commission, of the |
| 1099 | county where the lien notice was recorded. |
| 1100 | (3) In any action to foreclose a lien or to discharge a |
| 1101 | lien pursuant to this section, the prevailing party shall be |
| 1102 | awarded 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 |
| 1105 | notice under this part may be transferred by any person having |
| 1106 | an interest in the commercial real estate upon which the lien is |
| 1107 | imposed from such commercial real estate to other security by |
| 1108 | either: |
| 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 |
| 1111 | by a surety insurer licensed to do business in this state, |
| 1112 | either to be in an amount equal to the amount claimed in the |
| 1113 | lien notice, plus interest thereon at the legal rate for 3 |
| 1114 | years, plus $1,000 or 25 percent of the amount demanded in the |
| 1115 | lien notice, whichever is greater, to apply on any attorney's |
| 1116 | fees and court costs that may be taxed in any proceeding to |
| 1117 | enforce said lien. |
| 1118 | (b) Such deposit or bond shall be conditioned to pay any |
| 1119 | judgment or decree that may be rendered for the satisfaction of |
| 1120 | the lien for which such lien notice was recorded. Upon making |
| 1121 | such deposit or filing such bond, the clerk shall make and |
| 1122 | record a certificate showing the transfer of the lien from the |
| 1123 | commercial real estate to the security and shall mail a copy |
| 1124 | thereof by registered or certified mail to the broker named in |
| 1125 | the lien notice at the address stated therein. Upon filing the |
| 1126 | certificate of transfer the commercial real estate shall |
| 1127 | thereupon be released from the lien claimed and such lien shall |
| 1128 | be transferred to said security. Subject to any order of the |
| 1129 | court increasing the amount required for the lien transfer |
| 1130 | deposit or bond, no other judgment or decree to pay money may be |
| 1131 | entered by the court against the owner on account of the |
| 1132 | commission claimed in the lien notice. The clerk shall be |
| 1133 | entitled to a service charge for making and serving the |
| 1134 | certificate, in the amount of up to $15. If the transaction |
| 1135 | involves the transfer of multiple liens, an additional charge of |
| 1136 | up to $7.50 for each additional lien shall be charged. For |
| 1137 | recording the certificate and approving the bond, the clerk |
| 1138 | shall receive her or his usual statutory service charges as |
| 1139 | prescribed in s. 28.24. Any number of liens may be transferred |
| 1140 | to one such security. |
| 1141 | (2) Any excess of the security over the aggregate amount |
| 1142 | of any judgments or decrees rendered plus costs actually taxed |
| 1143 | shall be repaid to the party filing the security or her or his |
| 1144 | successor in interest. Any deposit of money shall be considered |
| 1145 | as paid into court and shall be subject to the provisions of law |
| 1146 | relative to payments of money into court and the disposition of |
| 1147 | same. |
| 1148 | (3) In any action pending under s. 475.809 to foreclose or |
| 1149 | discharge a lien any party having an interest in such security |
| 1150 | or the commercial real estate from which the lien was |
| 1151 | transferred may at any time and any number of times file a |
| 1152 | motion for an order to require additional security, reduction of |
| 1153 | security, change or substitution of sureties, payment of |
| 1154 | discharge thereof, or any other matter affecting said security. |
| 1155 | If the court finds that the amount of the deposit or bond in |
| 1156 | excess of the amount claimed in the lien notice is insufficient |
| 1157 | to pay the broker's attorney's fees and court costs incurred in |
| 1158 | the action to enforce the lien, the court shall increase the |
| 1159 | amount of the cash deposit or lien transfer bond. |
| 1160 | (4) If a proceeding to enforce a transferred lien is not |
| 1161 | commenced within the time specified in s. 475.809 or if it |
| 1162 | appears that the transferred lien has been satisfied of record, |
| 1163 | the clerk shall return said security upon request of the person |
| 1164 | depositing or filing the same, or the insurer. |
| 1165 | 475.813 Subordination of lien.-- |
| 1166 | (1) Nothing contained in this part precludes a broker from |
| 1167 | agreeing to subordinate a lien claimed by the broker under this |
| 1168 | part in favor of the holder of any mortgage or other lien |
| 1169 | against the owner's interest in the commercial real estate that |
| 1170 | is subject to the broker's lien. |
| 1171 | (2) With or without the consent of the broker, the owner |
| 1172 | may subordinate a lien claimed by the broker for an automatic |
| 1173 | renewal commission in favor of the holder of a subsequent |
| 1174 | mortgage encumbering the owner's interest in the commercial real |
| 1175 | estate. The subordination instrument described in this |
| 1176 | subsection shall be made in writing and shall be recorded by the |
| 1177 | owner in the public records of the same county where the |
| 1178 | broker's lien notice was recorded. |
| 1179 | (3) A broker's lien notice recorded against commercial |
| 1180 | real estate under this part is subordinate to any mortgage that |
| 1181 | has at any time secured any purchase money indebtedness, |
| 1182 | provided that the mortgage is made by the owner of the |
| 1183 | commercial real estate in favor of a person unrelated to the |
| 1184 | owner. This subordination provision affects only the relative |
| 1185 | priority of the broker's lien notice and the mortgage with |
| 1186 | respect to each other, and this provision does not affect their |
| 1187 | relative priority with respect to any other mortgage, lien, |
| 1188 | encumbrance, or other matter affecting the title to the |
| 1189 | commercial real estate. |
| 1190 | Section 3. Paragraph (j) of subsection (1) of section |
| 1191 | 475.42, 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 |
| 1195 | be placed, upon the public records of any county, any contract, |
| 1196 | assignment, deed, will, mortgage, affidavit, or other writing |
| 1197 | which purports to affect the title of, or encumber, any real |
| 1198 | property if the same is known to her or him to be false, void, |
| 1199 | or not authorized to be placed of record, or not executed in the |
| 1200 | form entitling it to be recorded, or the execution or recording |
| 1201 | whereof has not been authorized by the owner of the property, |
| 1202 | maliciously or for the purpose of collecting a commission, or to |
| 1203 | coerce the payment of money to the broker or sales associate or |
| 1204 | other person, or for any unlawful purpose. However, nothing in |
| 1205 | this paragraph shall be construed to prohibit a broker or a |
| 1206 | sales associate from recording a judgment rendered by a court of |
| 1207 | this state or to prohibit a broker from placing a lien on a |
| 1208 | property where expressly permitted by contractual agreement or |
| 1209 | otherwise allowed by law. |
| 1210 | Section 4. This act shall take effect October 1, 2005. |