SENATE AMENDMENT
    Bill No. CS for SB 1788
    Amendment No. ___   Barcode 380584
                            CHAMBER ACTION
              Senate                               House
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       04/28/2004 04:22 PM         .                    
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11  Senators Posey and Lee moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         Delete everything after the enacting clause
15  
16  and insert:  
17         Section 1.  Chapter 714, Florida Statutes, consisting
18  of sections 714.001, 714.003, 714.005, 714.007, and 714.009,
19  is created to read:
20         714.001  Popular name.--This chapter may be referred to
21  by the popular name the "Real Estate Lien Act."
22         714.003  Definitions.--As used in this chapter, the
23  term:
24         (1)  "Broker" has the same meaning as in s. 475.01.
25         (2)  "Commission" means any compensation or
26  consideration that may be due a broker licensed in this state
27  for services performed within the scope of the broker's
28  license.
29         (3)  "Future commission" means any additional
30  commission that may be due a broker as a result of future
31  actions, including, but not limited to, the exercise of an
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SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 option to expand the leased premises, to renew or extend a 2 lease, or to purchase the property. 3 (4) "Real estate" has the same meaning as in s. 4 475.01. For the purposes of ss. 714.001-714.009, the term 5 "real estate" does not include homestead property. 6 (5) "Transferee" means a person purchasing or 7 otherwise receiving any interest in real estate except a 8 sublessee or assignee of a lease. 9 (6) "Transferor" means the person selling or otherwise 10 conveying any interest in real estate except a sublessor or 11 assignor of a lease . 12 714.005 Broker's lien.-- 13 (1) WRITTEN INSTRUMENT.--A broker shall have a lien 14 upon real estate or any interest in that real estate which is 15 the subject of a purchase, lease, or other conveyance to a 16 buyer or tenant of an interest in the real estate, in the 17 amount that the broker is due for licensed services, 18 including, but not limited to, brokerage fees, consulting 19 fees, and management fees, under a valid and enforceable 20 written instrument signed by a transferor or the transferor's 21 duly authorized agent or by a prospective transferee or the 22 transferee's duly authorized agent. The lien shall be 23 available to the broker named in the signed instrument, and 24 not to any employee or independent contractor of the broker. 25 (2) ENTITLEMENT OF BROKER TO LIEN.-- 26 (a) A lien under this chapter shall attach to the real 27 estate or any interest in the real estate if the broker: 28 1. Is entitled to a fee or commission under a written 29 instrument signed in accordance with subsection (1); and 30 2. Except as otherwise provided in subsections 31 (4)-(7), records a notice of lien in the office of the clerk 2 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 of the circuit court of the county in which the property is 2 located prior to the actual conveyance or transfer of the real 3 estate against which the broker is claiming the lien. 4 (b) The lien shall attach as of the date of the 5 recording of the notice of lien and shall not relate back to 6 the date of the written instrument. 7 (c) A broker shall not have the right under this act 8 to a lien for commission or other compensation owed to that 9 broker pursuant to a sublease or assignment of lease. The 10 provisions of this subsection do not limit or otherwise affect 11 the claims or defenses a broker or any other party may have on 12 any other basis, in law or in equity. 13 (3) CONTENTS OF NOTICE OF LIEN.--A notice of lien 14 shall state the name of the claimant, the name of the owner of 15 record of the real estate, a description of the property upon 16 which the lien is being claimed, the amount for which the lien 17 is claimed, and the real estate license number of the broker. 18 The notice of lien shall recite that the information contained 19 in the notice is true and accurate to the knowledge of the 20 signator. The notice of lien must be signed by the broker or a 21 person authorized to sign on behalf of the broker and must be 22 notarized. 23 (4) COMMISSION DUE IN INSTALLMENTS.--Except as 24 otherwise provided in subsections (5)-(7), when payment to a 25 broker is due in installments, a portion of which is due only 26 after the conveyance or transfer of the real estate, any 27 notice of lien for those payments due after the conveyance or 28 transfer may be recorded at any time subsequent to the 29 conveyance or transfer of the real estate but not later than 30 90 days after the date the payment is due. A notice of lien 31 recorded prior to conveyance or transfer of the real estate 3 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 claiming all moneys due under an installment payment agreement 2 or for future commissions as described in subsection (6) shall 3 be valid and enforceable only to the extent it pertains to 4 payments due from the transferee to the transferor after the 5 conveyance or transfer. As payments or partial payments of 6 commission are received, a broker shall provide partial 7 releases therefor, thereby reducing the amount due the broker 8 under the broker's notice of lien. 9 (5) LEASE OF REAL ESTATE.--In the case of a lease, a 10 notice of lien must be recorded no later than 90 days after 11 the transferee takes possession of the leased premises. 12 However, if a transferor personally serves written notice of 13 the intended execution of the lease on a broker entitled to 14 claim a lien, at least 10 days prior to the date of the 15 intended execution of the lease, a notice of lien must be 16 recorded before the date indicated in such notice for the 17 execution of the lease. The lien shall attach as of the date 18 of the recording of the notice of lien and shall not relate 19 back to the date of the written instrument. 20 (6) FUTURE COMMISSION.--If a broker may be due future 21 commissions pursuant to a written instrument signed by the 22 then transferor or transferee, the broker may record a notice 23 of lien at any time after execution of the lease or other 24 written instrument which contains such option or options, but 25 may not record the notice of lien later than 90 days after the 26 event or occurrence on which the claimed future commission 27 occurs. Notwithstanding subsection (10), an action to enforce 28 a lien under this subsection must be commenced within 2 years 29 after the occurrence or transaction on which the future 30 commission is claimed. 31 (7) REAL ESTATE SOLD BEFORE COMMISSION DUE.--In the 4 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 event that the real estate is sold or otherwise conveyed prior 2 to the date on which either a future commission or an unpaid 3 installment of a commission is due, if the broker has recorded 4 a valid notice of lien prior to the sale or other conveyance 5 of the real estate, then the purchaser or transferee shall be 6 deemed to have notice of and shall take title to the real 7 estate subject to the lien. However, if a broker claiming a 8 future commission fails to record a notice of lien for future 9 commission prior to the recording of a deed conveying legal 10 title to the real estate to the transferee, then such broker 11 may not claim a lien on the real estate. The provisions of 12 this subsection do not limit or otherwise affect claims or 13 defenses a broker or any other party may have on any other 14 basis, in law or in equity. 15 (8) WRITTEN INSTRUMENT WITH TRANSFEREE.--If a 16 transferee has executed a written instrument in accordance 17 with subsection (1), then a lien shall attach to the 18 transferee's interest upon the transferee purchasing or 19 otherwise accepting conveyance or transfer of the real estate 20 and the recording of a notice of lien by the broker in the 21 office of the clerk of the circuit court of the county in 22 which the property is located, within 90 days after the 23 purchase or other conveyance or transfer to the transferee. 24 The lien shall attach as of the date of the recording of the 25 notice of lien and shall not relate back to the date of the 26 written instrument. 27 (9) SERVICE OF NOTICE OF LIEN.--A broker shall, within 28 10 days after recording a notice of lien, personally deliver 29 or mail, by registered or certified mail, a copy of the notice 30 of lien to the owner of record of the real estate or the duly 31 authorized agent of the owner of record at the address of the 5 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 owner of record as stated in the written instrument on which 2 the claim for lien is based or, if no such address is given, 3 to the address of the property on which the claim of lien is 4 based. Mailing of the copy of the notice of lien is effective 5 when deposited in the United States mail with postage prepaid. 6 A broker's lien on real estate shall be unenforceable if 7 delivery or mailing of the copy of notice of lien does not 8 occur within the time period and in the manner required by 9 this subsection. 10 (10) LAWSUIT TO ENFORCE LIEN.-- 11 (a) A broker may bring suit to enforce a lien on real 12 estate in the circuit court in the county in which the 13 property is located by filing a complaint and sworn affidavit 14 that the notice of lien has been recorded. 15 (b) A broker claiming a lien on real estate shall, 16 within 2 years after recording the notice of lien, commence 17 proceedings by filing a complaint. Failure to commence 18 proceedings within 2 years after recording the notice of lien 19 shall extinguish the lien. No subsequent notice of lien may be 20 given for the same claim, nor may that claim be asserted in 21 any proceedings under this chapter. 22 (c) A broker claiming a lien on real estate based upon 23 an option or other right to purchase or lease shall, within 2 24 years after the conveyance or transfer of the real estate 25 under the exercise of the option to purchase or lease, 26 commence proceedings by filing a complaint. Failure to 27 commence proceedings within this time period shall extinguish 28 the lien. No subsequent notice of lien may be given for the 29 same claim, nor may that claim be asserted in any proceedings 30 under this chapter. 31 (d) A complaint under this section shall contain a 6 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 brief statement of the contract or instrument on which the 2 lien is based as well as its effective date, a description of 3 the services performed, the amount due and unpaid, a 4 description of the property that is subject to the lien, and 5 other facts necessary for a full understanding of the rights 6 of the parties. The plaintiff shall make all interested 7 parties of whose interest the plaintiff is notified or has 8 knowledge defendants to the action and shall issue summons and 9 provide service as in other civil actions filed in this state. 10 When any defendant resides or has gone out of the state, or on 11 inquiry cannot be found, or is concealed within the state so 12 that process cannot be served on the defendant, the plaintiff 13 shall cause a notice to be given to the defendant or cause a 14 copy of the complaint to be served on the defendant in the 15 manner and on the same conditions as in other civil actions 16 filed in this state. Failure of the plaintiff to provide 17 proper summons or notice to the defendant as required by this 18 paragraph shall be grounds for judgment against the plaintiff 19 and in favor of the defendant with prejudice. All liens 20 claimed under this chapter shall be foreclosed in the manner 21 of foreclosing a mortgage under the provisions of chapter 702. 22 (11) DEMAND TO INITIATE OR FILE ANSWER TO 23 LAWSUIT.--Upon written demand of the owner of record or a 24 lienee of the real estate, or a duly authorized agent of the 25 owner or lienee, served on the broker claiming the lien to 26 require suit to be commenced to enforce the lien or an answer 27 to be filed in a pending suit to enforce the lien, the suit 28 must be commenced or the answer filed within 30 days 29 thereafter or the lien shall be extinguished. Service of such 30 written demand may be made by registered or certified mail, 31 return receipt requested, or by personal service. 7 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 (12) SATISFACTION OR RELEASE OF LIEN.-- 2 (a) Whenever a notice of lien on real estate has been 3 recorded with the clerk of the circuit court and the claimed 4 commission has been paid to a broker claiming a lien on the 5 property, or when there is a failure to initiate a suit to 6 enforce the lien within the time period provided by this 7 section, the broker shall acknowledge satisfaction or release 8 of the lien in writing, upon written demand of the owner of 9 the real estate, within 5 days after payment of the amount 10 claimed or within 5 days after expiration of the time period 11 in which the complaint to initiate the lawsuit was to be 12 filed. 13 (b) Whenever a notice of lien on real estate has been 14 recorded with the clerk of the circuit court and a condition 15 occurs that would preclude a broker from receiving 16 compensation under the terms of the written agreement on which 17 the lien is based, the broker shall provide to the owner of 18 record, within 10 days following written demand by the owner 19 of record, a written release or satisfaction of the lien. 20 (13) ALTERNATIVE DISPUTE RESOLUTION.--If the broker 21 and the party or parties from whom the commission is claimed 22 agree to alternative dispute resolution, the claim shall be 23 heard and resolved in the forum on which these parties have 24 agreed. The court before which the action to enforce the lien 25 is brought shall retain jurisdiction to enter judgment on the 26 award or other result made or reached in alternative dispute 27 resolution on all parties to the action to enforce the lien. 28 The broker's notice of lien shall remain of record and the 29 action to enforce the lien shall be stayed during the pendency 30 of the alternative dispute resolution process. 31 (14) ASSESSMENT OF COSTS, FEES, AND INTEREST.--The 8 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 cost of proceedings brought under this section, including 2 reasonable attorney's fees, costs, and prejudgment interest 3 due to the prevailing party, shall be borne by the 4 nonprevailing party or parties. When more than one party is 5 responsible for costs, fees, and prejudgment interest, the 6 costs, fees, and prejudgment interest shall be equitably 7 apportioned by the court or alternative dispute resolution 8 tribunal among the responsible parties. 9 (15) WAIVER OF LIEN RIGHTS VOID.--Except for a 10 satisfaction or release of lien provided in consideration of 11 payment of the fee or commission claimed by a broker or other 12 consideration acceptable to broker or pursuant to subsection 13 (12), any waiver of a broker's right to a lien on real estate 14 under this section and any other waiver or release of such a 15 lien is void. 16 714.007 Priority of other recorded liens, mortgages, 17 and encumbrances.--Valid prior recorded liens, mortgages, and 18 other encumbrances shall have priority over a broker's lien 19 under this chapter. Such prior recorded liens, mortgages, and 20 encumbrances shall include, without limitation: 21 (1) Any valid mechanic's lien claim that is recorded 22 subsequent to the broker's notice of lien but which relates 23 back to a date prior to the recording date of the broker's 24 notice of lien. 25 (2) Prior recorded liens securing revolving credit and 26 future advances of construction loans. 27 714.009 Escrow of disputed amounts.--Except as 28 otherwise provided in this chapter, whenever a notice of lien 29 on real estate has been filed with the clerk of the circuit 30 court that would prevent the closing of a transaction or 31 conveyance, an escrow account shall be established from the 9 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 proceeds from the transaction or conveyance, or other 2 collateral or security in an amount sufficient to release the 3 lien. The requirement to establish an escrow account as 4 provided in this section shall not be cause for any party to 5 refuse to close the transaction or conveyance. The moneys or 6 other collateral or security required to be held in escrow 7 under this section shall be held until the rights of the 8 parties to the escrowed moneys or other collateral or security 9 have been determined by written agreement of the parties, by a 10 court of law, or by any other process that may be agreed to by 11 the parties for resolution of their dispute. Upon the escrow 12 of funds or other collateral or security in the amount claimed 13 in the lien, the lien and notice of lien shall be 14 automatically dissolved. Upon release of the lien by the 15 broker, the broker shall be deemed to have an equitable lien 16 on the escrow funds or other collateral or security, pending a 17 resolution of the broker's claim, and the escrow shall not be 18 released until a resolution is reached and agreed to by all 19 necessary parties or ordered by a court. The parties are not 20 required to follow the escrow procedure in this section if 21 alternative procedures that would allow the transaction to 22 close are available and are acceptable to the transferee in 23 the transaction. If the proceeds from the transaction are 24 insufficient to release all liens claimed against the real 25 estate, including the broker's lien, then the parties are not 26 required to follow the escrow procedure in this section. 27 Section 2. Paragraph (j) of subsection (1) of section 28 475.42, Florida Statutes, is amended to read: 29 475.42 Violations and penalties.-- 30 (1) VIOLATIONS.-- 31 (j) A broker or sales associate may not place, or 10 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 cause to be placed, upon the public records of any county, any 2 contract, assignment, deed, will, mortgage, affidavit, or 3 other writing which purports to affect the title of, or 4 encumber, any real property if the same is known to her or him 5 to be false, void, or not authorized to be placed of record, 6 or not executed in the form entitling it to be recorded, or 7 the execution or recording whereof has not been authorized by 8 the owner of the property, maliciously or for the purpose of 9 collecting a commission, or to coerce the payment of money to 10 the broker or sales associate or other person, or for any 11 unlawful purpose. However, nothing in this paragraph shall be 12 construed to prohibit a broker or a sales associate from 13 recording a judgment rendered by a court of this state or to 14 prohibit a broker from placing a lien on a property where 15 expressly permitted by contractual agreement or otherwise 16 allowed by law. 17 Section 3. This act shall take effect July 1, 2004. 18 19 20 ================ T I T L E A M E N D M E N T =============== 21 And the title is amended as follows: 22 Delete everything before the enacting clause 23 24 and insert: 25 A bill to be entitled 26 An act relating to liens on real estate; 27 creating ch. 714, F.S., the "Real Estate Lien 28 Act"; providing definitions; specifying 29 conditions under which a broker is entitled to 30 a lien on real estate; requiring a written 31 instrument; requiring the recording of a notice 11 4:18 PM 04/28/04 s1788c1c-2428y
SENATE AMENDMENT Bill No. CS for SB 1788 Amendment No. ___ Barcode 380584 1 of lien; providing for the contents and service 2 of such notice; providing requirements with 3 respect to installment and future commissions, 4 leases, sales of property before commission is 5 due, and written instruments with transferees; 6 providing for enforcement of the lien by 7 lawsuit; requiring written demand to initiate 8 or file an answer to such lawsuit; providing 9 conditions for satisfaction or release of the 10 lien; providing for an alternative dispute 11 resolution process; providing for assessment of 12 costs, fees, and interest; declaring any waiver 13 of lien rights void; providing priority of 14 other recorded liens, mortgages, and 15 encumbrances; providing for escrow of disputed 16 amounts; amending s. 475.42, F.S.; providing 17 that brokers may place liens on property as 18 provided by law; providing an effective date. 19 20 21 22 23 24 25 26 27 28 29 30 31 12 4:18 PM 04/28/04 s1788c1c-2428y