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. |