| 1 | The Civil Justice Committee recommends the following: |
| 2 |
|
| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to nonjudicial sale of vessels; amending |
| 7 | s. 328.17, F.S.; revising notice requirements of a marina |
| 8 | having a possessory lien on a vessel for unpaid costs, |
| 9 | charges, or fees prior to nonjudicial sale of the vessel, |
| 10 | including expenses for the removal and disposal of certain |
| 11 | vessels in a wrecked, junked, or substantially dismantled |
| 12 | condition; reducing the time allowed to pay the fees, |
| 13 | charges, and costs giving rise to the lien prior to sale |
| 14 | of the vessel; revising requirements with respect to |
| 15 | perfection of and priority over prior or other liens; |
| 16 | providing an effective date. |
| 17 |
|
| 18 | Be It Enacted by the Legislature of the State of Florida: |
| 19 |
|
| 20 | Section 1. Subsections (4), (5), (7), (10), (11), and (12) |
| 21 | of section 328.17, Florida Statutes, are amended to read: |
| 22 | 328.17 Nonjudicial sale of vessels.-- |
| 23 | (4) A marina, as defined in s. 327.02(19), shall have: |
| 24 | (a) A possessory lien upon any vessel for storage fees, |
| 25 | dockage fees, repairs, improvements, or other work-related |
| 26 | storage charges, and for expenses necessary for preservation of |
| 27 | the vessel or expenses reasonably incurred in the sale or other |
| 28 | disposition of the vessel. The possessory lien shall attach as |
| 29 | of the date the vessel is brought to the marina, or as of the |
| 30 | date the vessel first occupies rental space at the marina |
| 31 | facility. However, in the event of default, the marina must give |
| 32 | notice to persons who hold perfected security interests against |
| 33 | the vessel under the Uniform Commercial Code in which the owner |
| 34 | is named as the debtor. |
| 35 | (b) A possessory lien upon any vessel in a wrecked, |
| 36 | junked, or substantially dismantled condition, which has been |
| 37 | left docked, grounded, beached, or otherwise abandoned at a |
| 38 | marina without consent of the marina owner, for expenses |
| 39 | reasonably incurred in the removal and disposal of the vessel. |
| 40 | The possessory lien shall attach as of the date the vessel is |
| 41 | discovered at the marina facility. If the funds recovered from |
| 42 | the sale of such a vessel, or from the scrap or salvage value of |
| 43 | such a vessel, are insufficient to cover the expenses reasonably |
| 44 | incurred by the marina in removing and disposing of the vessel, |
| 45 | all costs in excess of recovery shall be recoverable against the |
| 46 | owner of the vessel. |
| 47 | (5) A marina's possessory lien may be satisfied as |
| 48 | follows: |
| 49 | (a)1. The marina shall provide written notice to the |
| 50 | vessel's owner, delivered in person or by certified mail to the |
| 51 | owner's last known address. The notice shall also be and |
| 52 | conspicuously posted at the marina and on the vessel. |
| 53 | 2. In addition to notice provided to the vessel owner |
| 54 | under subparagraph 1., the marina shall provide written notice |
| 55 | to each person or entity that: |
| 56 | a. Holds a security interest on the vessel as shown in the |
| 57 | records of the Department of Highway Safety and Motor Vehicles |
| 58 | with respect to state-titled vessels. |
| 59 | b. Holds a preferred ship mortgage or has filed a claim of |
| 60 | lien with the United States Coast Guard Vessel Documentation |
| 61 | Center. |
| 62 | c. Holds a security interest against the vessel under the |
| 63 | Uniform Commercial Code. |
| 64 | d. Has perfected a lien against the subject vessel by |
| 65 | filing a judgment lien certificate pursuant to ss. 55.201- |
| 66 | 55.209. |
| 67 | 3. When a vessel displays a foreign country identification |
| 68 | or displays registration numbers from a state other than |
| 69 | Florida, the marina shall conduct a reasonable lien search of |
| 70 | the vessel registration records in the jurisdiction of registry |
| 71 | to determine if there is a lienholder who is entitled to notice |
| 72 | pursuant to subparagraph 2. Failure to discover a foreign |
| 73 | national or non-Florida United States lienholder after a good |
| 74 | faith effort to conduct such a lien search shall not prevent the |
| 75 | sale or removal of a vessel from the marina to satisfy the |
| 76 | marina's possessory lien or a purchaser, in good faith, from |
| 77 | taking title of the vessel, pursuant to subsections (7) and |
| 78 | (11). |
| 79 | 4. The requirements of subparagraph 2. shall be satisfied |
| 80 | if the marina: |
| 81 | a. Obtains ownership documentation for the vessel and |
| 82 | trailer, if applicable, from the Department of Highway Safety |
| 83 | and Motor Vehicles or other agency with which the vessel is |
| 84 | registered; |
| 85 | b. Obtains an abstract from the United States Coast Guard |
| 86 | for a vessel that is documented as defined in 46 U.S.C. s. |
| 87 | 30101; |
| 88 | c. Performs a current Uniform Commercial Code lien search; |
| 89 | d. Performs a current Florida judgment lien certificate |
| 90 | search; and |
| 91 | e. Complies with subparagraph 3. with regard to vessels |
| 92 | registered in a foreign country or in a state other than |
| 93 | Florida. |
| 94 | 5. The written notice to the vessel owner and lienholders |
| 95 | required by this paragraph shall be made at least 60 days prior |
| 96 | to any sale of the vessel under this section recorded lienholder |
| 97 | of such vessel registered with this state as shown by the |
| 98 | records of the Department of Highway Safety and Motor Vehicles, |
| 99 | at least 30 days prior to the proposed sale. |
| 100 | (b) The notice shall include: |
| 101 | 1. An itemized statement of the marina's claim, showing |
| 102 | the sum due at the time of the notice and the date upon which |
| 103 | the sum became due. |
| 104 | 2. A description of the vessel. |
| 105 | 3. A demand for payment. |
| 106 | 4. A conspicuous statement that, unless the claim is paid |
| 107 | within the time stated in the notice, the vessel will be |
| 108 | advertised for sale or other disposition and will be sold or |
| 109 | otherwise disposed of at a specified time and place. |
| 110 | 5. The name, street address, and telephone number of the |
| 111 | marina that the owner may contact to respond to the notice. |
| 112 | (7) If the fees, and costs, and late payment interest that |
| 113 | give rise to such a lien are due and unpaid 60 120 days after |
| 114 | the vessel owner and lienholder are is given written notice, the |
| 115 | marina may sell the vessel, including its machinery, rigging, |
| 116 | and accessories as provided for in subsection (8); or the marina |
| 117 | may, at its option, remove the vessel from the marina or from |
| 118 | the waters of the state at the owner's expense pursuant to |
| 119 | paragraph (4)(b). |
| 120 | (10) Before any sale or other disposition of the vessel |
| 121 | pursuant to this section, the owner or the lienholder may pay |
| 122 | the amount necessary to satisfy the lien and the reasonable |
| 123 | expenses and late payment interest incurred under this section |
| 124 | and thereby redeem and take possession of the vessel. Upon |
| 125 | receipt of such payment, the marina shall return the property to |
| 126 | the owner or lienholder making such payment and thereafter shall |
| 127 | have no liability to any person with respect to such vessel. |
| 128 | (11) Unless otherwise provided by law, a purchaser in good |
| 129 | faith of a vessel sold to satisfy a lien provided for in this |
| 130 | section takes the property free of any claims other than a prior |
| 131 | lien perfected under state or federal law the Uniform Commercial |
| 132 | Code, despite noncompliance by the marina with the requirements |
| 133 | of this section. |
| 134 | (12) In the event of a sale under this section, the marina |
| 135 | may satisfy its lien from the proceeds of the sale, provided the |
| 136 | marina's lien has priority over all other liens on the vessel |
| 137 | other than a prior lien perfected under the Uniform Commercial |
| 138 | Code. The lien rights of secured lienholders are automatically |
| 139 | also attach transferred to the remaining proceeds of the sale. |
| 140 | The balance, if any, shall be held by the marina for delivery on |
| 141 | demand to the owner. A notice of any balance shall be delivered |
| 142 | by the marina to the owner in person or by certified mail to the |
| 143 | last known address of the owner. If the owner does not claim the |
| 144 | balance of the proceeds within 1 year after the date of sale, |
| 145 | the proceeds shall be deemed abandoned, and the marina shall |
| 146 | have no further obligation with regard to the payment of the |
| 147 | balance. In the event that the marina's lien does not have |
| 148 | priority over all other liens, the sale proceeds shall be held |
| 149 | for the benefit of the holders of those liens having priority. A |
| 150 | notice of the amount of the sale proceeds shall be delivered by |
| 151 | the marina to the owner or secured lienholder in person or by |
| 152 | certified mail to the owner's or the secured lienholder's last |
| 153 | known address. If the owner or the secured lienholder does not |
| 154 | claim the sale proceeds within 1 year after the date of sale, |
| 155 | the proceeds shall be deemed abandoned, and the owner or the |
| 156 | secured lienholder shall have no further obligation with regard |
| 157 | to the payment of the proceeds. |
| 158 | Section 2. This act shall take effect July 1, 2006. |