SENATE AMENDMENT
Bill No. CS for SB 1788
Amendment No. ___ Barcode 964342
CHAMBER ACTION
Senate House
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11 Senator Posey moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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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 "Commercial 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)(a) "Commercial real estate" means any real estate
26 other than:
27 1. Real estate containing one to four residential
28 units; or
29 2. Real estate on which no building or structure is
30 located and which is zoned for single-family residential use.
31 (b) "Commercial real estate" does not include
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1 single-family residential units such as condominiums,
2 townhouses, or homes in a subdivision when sold, leased, or
3 otherwise conveyed on a unit-by-unit basis, even though these
4 units may be a part of a larger building or parcel or real
5 estate containing more than four residential units.
6 (3) "Commission" means any compensation or
7 consideration that may be due a broker licensed in this state
8 for services performed within the scope of the broker's
9 license.
10 (4) "Future commission" means any additional
11 commission that may be due a broker as a result of future
12 actions, including, but not limited to, the exercise of an
13 option to expand the leased premises, to renew or extend a
14 lease, or to purchase the property.
15 (5) "Real estate" has the same meaning as in s.
16 475.01.
17 (6) "Transferee" means a person purchasing or
18 otherwise receiving any interest in commercial real estate,
19 except a sublessee or assignee of a lease.
20 (7) "Transferor" means the person selling or otherwise
21 conveying any interest in commercial real estate, except a
22 sublessor or assignor of a lease.
23 714.005 Broker's lien.--
24 (1) WRITTEN INSTRUMENT.--A broker shall have a lien
25 upon commercial real estate or any interest in that commercial
26 real estate which is the subject of a purchase, lease, or
27 other conveyance to a buyer or tenant of an interest in the
28 commercial real estate, in the amount that the broker is due
29 for licensed services, including, but not limited to,
30 brokerage fees, consulting fees, and management fees, under a
31 valid and enforceable written instrument signed by a
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1 transferor or the transferor's duly authorized agent or by a
2 prospective transferee or the transferee's duly authorized
3 agent. The lien shall be available to the broker named in the
4 signed instrument, and not to any employee or independent
5 contractor of the broker.
6 (2) ENTITLEMENT OF BROKER TO LIEN.--
7 (a) A lien under this chapter shall attach to the
8 commercial real estate or any interest in the commercial real
9 estate if the broker:
10 1. Is entitled to a fee or commission under a written
11 instrument signed in accordance with subsection (1); and
12 2. Except as otherwise provided in subsections
13 (4)-(7), records a notice of lien in the office of the clerk
14 of the circuit court of the county in which the property is
15 located prior to the actual conveyance or transfer of the
16 commercial real estate against which the broker is claiming
17 the lien.
18 (b) The lien shall attach as of the date of the
19 recording of the notice of lien and shall not relate back to
20 the date of the written instrument.
21 (c) A broker shall not have the right under this act
22 to a lien for commission or other compensation owed to that
23 broker pursuant to a sublease or assignment of lease. The
24 provisions of this subsection do not limit or otherwise affect
25 the claims or defenses a broker or any other party may have on
26 any other basis, in law or in equity.
27 (3) CONTENTS OF NOTICE OF LIEN.--A notice of lien
28 shall state the name of the claimant, the name of the owner of
29 record of the commercial real estate, a description of the
30 property upon which the lien is being claimed, the amount for
31 which the lien is claimed, and the real estate license number
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1 of the broker. The notice of lien shall recite that the
2 information contained in the notice is true and accurate to
3 the knowledge of the signator. The notice of lien must be
4 signed by the broker or a person authorized to sign on behalf
5 of the broker and must be notarized.
6 (4) COMMISSION DUE IN INSTALLMENTS.--Except as
7 otherwise provided in subsections (5)-(7), when payment to a
8 broker is due in installments, a portion of which is due only
9 after the conveyance or transfer of the commercial real
10 estate, any notice of lien for those payments due after the
11 conveyance or transfer may be recorded at any time subsequent
12 to the conveyance or transfer of the commercial real estate
13 but not later than 90 days after the date the payment is due.
14 A notice of lien recorded prior to conveyance or transfer of
15 the commercial real estate claiming all moneys due under an
16 installment payment agreement or for future commissions as
17 described in subsection (6) shall be valid and enforceable
18 only to the extent it pertains to payments due from the
19 transferee to the transferor after the conveyance or transfer.
20 As payments or partial payments of commission are received, a
21 broker shall provide partial releases therefor, thereby
22 reducing the amount due the broker under the broker's notice
23 of lien.
24 (5) LEASE OF COMMERCIAL REAL ESTATE.--In the case of a
25 lease, a notice of lien must be recorded no later than 90 days
26 after the transferee takes possession of the leased premises.
27 However, if a transferor personally serves written notice of
28 the intended execution of the lease on a broker entitled to
29 claim a lien, at least 10 days prior to the date of the
30 intended execution of the lease, a notice of lien must be
31 recorded before the date indicated in such notice for the
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1 execution of the lease. The lien shall attach as of the date
2 of the recording of the notice of lien and shall not relate
3 back to the date of the written instrument.
4 (6) FUTURE COMMISSION.--If a broker may be due future
5 commissions pursuant to a written instrument signed by the
6 then transferor or transferee, the broker may record a notice
7 of lien at any time after execution of the lease or other
8 written instrument which contains such option or options, but
9 may not record the notice of lien later than 90 days after the
10 event or occurrence on which the claimed future commission
11 occurs. Notwithstanding subsection (10), an action to enforce
12 a lien under this subsection must be commenced within 2 years
13 after the occurrence or transaction on which the future
14 commission is claimed.
15 (7) REAL ESTATE SOLD BEFORE COMMISSION DUE.--In the
16 event that the commercial real estate is sold or otherwise
17 conveyed prior to the date on which either a future commission
18 or an unpaid installment of a commission is due, if the broker
19 has recorded a valid notice of lien prior to the sale or other
20 conveyance of the real estate, then the purchaser or
21 transferee shall be deemed to have notice of and shall take
22 title to the real estate subject to the lien. However, if a
23 broker claiming a future commission fails to record a notice
24 of lien for future commission prior to the recording of a deed
25 conveying legal title to the real estate to the transferee,
26 then such broker may not claim a lien on the real estate. The
27 provisions of this subsection do not limit or otherwise affect
28 claims or defenses a broker or any other party may have on any
29 other basis, in law or in equity.
30 (8) WRITTEN INSTRUMENT WITH TRANSFEREE.--If a
31 transferee has executed a written instrument in accordance
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1 with subsection (1), then a lien shall attach to the
2 transferee's interest upon the transferee purchasing or
3 otherwise accepting conveyance or transfer of the commercial
4 real estate and the recording of a notice of lien by the
5 broker in the office of the clerk of the circuit court of the
6 county in which the property is located, within 90 days after
7 the purchase or other conveyance or transfer to the
8 transferee. The lien shall attach as of the date of the
9 recording of the notice of lien and shall not relate back to
10 the date of the written instrument.
11 (9) SERVICE OF NOTICE OF LIEN.--A broker shall, within
12 10 days after recording a notice of lien, personally deliver
13 or mail, by registered or certified mail, a copy of the notice
14 of lien to the owner of record of the commercial real estate
15 or the duly authorized agent of the owner of record at the
16 address of the owner of record as stated in the written
17 instrument on which the claim for lien is based or, if no such
18 address is given, to the address of the property on which the
19 claim of lien is based. Mailing of the copy of the notice of
20 lien is effective when deposited in the United States mail
21 with postage prepaid. A broker's lien on commercial real
22 estate shall be unenforceable if delivery or mailing of the
23 copy of notice of lien does not occur within the time period
24 and in the manner required by this subsection.
25 (10) LAWSUIT TO ENFORCE LIEN.--
26 (a) A broker may bring suit to enforce a lien on
27 commercial real estate in the circuit court in the county in
28 which the property is located by filing a complaint and sworn
29 affidavit that the notice of lien has been recorded.
30 (b) A broker claiming a lien on commercial real estate
31 shall, within 2 years after recording the notice of lien,
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1 commence proceedings by filing a complaint. Failure to
2 commence proceedings within 2 years after recording the notice
3 of lien shall extinguish the lien. No subsequent notice of
4 lien may be given for the same claim, nor may that claim be
5 asserted in any proceedings under this chapter.
6 (c) A broker claiming a lien on commercial real estate
7 based upon an option or other right to purchase or lease
8 shall, within 2 years after the conveyance or transfer of the
9 real estate under the exercise of the option to purchase or
10 lease, commence proceedings by filing a complaint. Failure to
11 commence proceedings within this time period shall extinguish
12 the lien. No subsequent notice of lien may be given for the
13 same claim, nor may that claim be asserted in any proceedings
14 under this chapter.
15 (d) A complaint under this section shall contain a
16 brief statement of the contract or instrument on which the
17 lien is based as well as its effective date, a description of
18 the services performed, the amount due and unpaid, a
19 description of the property that is subject to the lien, and
20 other facts necessary for a full understanding of the rights
21 of the parties. The plaintiff shall make all interested
22 parties of whose interest the plaintiff is notified or has
23 knowledge defendants to the action and shall issue summons and
24 provide service as in other civil actions filed in this state.
25 When any defendant resides or has gone out of the state, or on
26 inquiry cannot be found, or is concealed within the state so
27 that process cannot be served on the defendant, the plaintiff
28 shall cause a notice to be given to the defendant or cause a
29 copy of the complaint to be served on the defendant in the
30 manner and on the same conditions as in other civil actions
31 filed in this state. Failure of the plaintiff to provide
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1 proper summons or notice to the defendant as required by this
2 paragraph shall be grounds for judgment against the plaintiff
3 and in favor of the defendant with prejudice. All liens
4 claimed under this chapter shall be foreclosed in the manner
5 of foreclosing a mortgage under the provisions of chapter 702.
6 (11) DEMAND TO INITIATE OR FILE ANSWER TO
7 LAWSUIT.--Upon written demand of the owner of record or a
8 lienee of the commercial real estate, or a duly authorized
9 agent of the owner or lienee, served on the broker claiming
10 the lien to require suit to be commenced to enforce the lien
11 or an answer to be filed in a pending suit to enforce the
12 lien, the suit must be commenced or the answer filed within 30
13 days thereafter or the lien shall be extinguished. Service of
14 such written demand may be made by registered or certified
15 mail, return receipt requested, or by personal service.
16 (12) SATISFACTION OR RELEASE OF LIEN.--
17 (a) Whenever a notice of lien on commercial real
18 estate has been recorded with the clerk of the circuit court
19 and the claimed commission has been paid to a broker claiming
20 a lien on the property, or when there is a failure to initiate
21 a suit to enforce the lien within the time period provided by
22 this section, the broker shall acknowledge satisfaction or
23 release of the lien in writing, upon written demand of the
24 owner of the commercial real estate, within 5 days after
25 payment of the amount claimed or within 5 days after
26 expiration of the time period in which the complaint to
27 initiate the lawsuit was to be filed.
28 (b) Whenever a notice of lien on commercial real
29 estate has been recorded with the clerk of the circuit court
30 and a condition occurs that would preclude a broker from
31 receiving compensation under the terms of the written
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1 agreement on which the lien is based, the broker shall provide
2 to the owner of record, within 10 days following written
3 demand by the owner of record, a written release or
4 satisfaction of the lien.
5 (13) ALTERNATIVE DISPUTE RESOLUTION.--If the broker
6 and the party or parties from whom the commission is claimed
7 agree to alternative dispute resolution, the claim shall be
8 heard and resolved in the forum on which these parties have
9 agreed. The court before which the action to enforce the lien
10 is brought shall retain jurisdiction to enter judgment on the
11 award or other result made or reached in alternative dispute
12 resolution on all parties to the action to enforce the lien.
13 The broker's notice of lien shall remain of record and the
14 action to enforce the lien shall be stayed during the pendency
15 of the alternative dispute resolution process.
16 (14) ASSESSMENT OF COSTS, FEES, AND INTEREST.--The
17 cost of proceedings brought under this section, including
18 reasonable attorney's fees, costs, and prejudgment interest
19 due to the prevailing party, shall be borne by the
20 nonprevailing party or parties. When more than one party is
21 responsible for costs, fees, and prejudgment interest, the
22 costs, fees, and prejudgment interest shall be equitably
23 apportioned by the court or alternative dispute resolution
24 tribunal among the responsible parties.
25 (15) WAIVER OF LIEN RIGHTS VOID.--Except for a
26 satisfaction or release of lien provided in consideration of
27 payment of the fee or commission claimed by a broker or other
28 consideration acceptable to broker or pursuant to subsection
29 (12), any waiver of a broker's right to a lien on commercial
30 real estate under this section and any other waiver or release
31 of such a lien is void.
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1 714.007 Priority of other recorded liens, mortgages,
2 and encumbrances.--Valid prior recorded liens, mortgages, and
3 other encumbrances shall have priority over a broker's lien
4 under this chapter. Such prior recorded liens, mortgages, and
5 encumbrances shall include, without limitation:
6 (1) Any valid mechanic's lien claim that is recorded
7 subsequent to the broker's notice of lien but which relates
8 back to a date prior to the recording date of the broker's
9 notice of lien.
10 (2) Prior recorded liens securing revolving credit and
11 future advances of construction loans.
12 714.009 Escrow of disputed amounts.--Except as
13 otherwise provided in this chapter, whenever a notice of lien
14 on commercial real estate has been filed with the clerk of the
15 circuit court that would prevent the closing of a transaction
16 or conveyance, an escrow account shall be established from the
17 proceeds from the transaction or conveyance, or other
18 collateral or security, in an amount sufficient to release the
19 lien. The requirement to establish an escrow account as
20 provided in this section shall not be cause for any party to
21 refuse to close the transaction or conveyance. The moneys or
22 other collateral or security required to be held in escrow
23 under this section shall be held until the rights of the
24 parties to the escrowed moneys or other collateral or security
25 have been determined by written agreement of the parties, by a
26 court of law, or by any other process that may be agreed to by
27 the parties for resolution of their dispute. Upon the escrow
28 of funds or other collateral or security in the amount claimed
29 in the lien, the lien and notice of lien shall be
30 automatically dissolved. Upon release of the lien by the
31 broker, the broker shall be deemed to have an equitable lien
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1 on the escrow funds or other collateral or security, pending a
2 resolution of the broker's claim, and the escrow shall not be
3 released until a resolution is reached and agreed to by all
4 necessary parties or ordered by a court. The parties are not
5 required to follow the escrow procedure in this section if
6 alternative procedures that would allow the transaction to
7 close are available and are acceptable to the transferee in
8 the transaction. If the proceeds from the transaction are
9 insufficient to release all liens claimed against the
10 commercial real estate, including the broker's lien, then the
11 parties are not required to follow the escrow procedure in
12 this section.
13 Section 2. Paragraph (j) of subsection (1) of section
14 475.42, Florida Statutes, is amended to read:
15 475.42 Violations and penalties.--
16 (1) VIOLATIONS.--
17 (j) A broker or sales associate may not place, or
18 cause to be placed, upon the public records of any county, any
19 contract, assignment, deed, will, mortgage, affidavit, or
20 other writing which purports to affect the title of, or
21 encumber, any real property if the same is known to her or him
22 to be false, void, or not authorized to be placed of record,
23 or not executed in the form entitling it to be recorded, or
24 the execution or recording whereof has not been authorized by
25 the owner of the property, maliciously or for the purpose of
26 collecting a commission, or to coerce the payment of money to
27 the broker or sales associate or other person, or for any
28 unlawful purpose. However, nothing in this paragraph shall be
29 construed to prohibit a broker or a sales associate from
30 recording a judgment rendered by a court of this state or to
31 prohibit a broker from placing a lien on a property where
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1 expressly permitted by contractual agreement or otherwise
2 allowed by law.
3 Section 3. This act shall take effect July 1, 2004.
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6 ================ T I T L E A M E N D M E N T ===============
7 And the title is amended as follows:
8 Delete everything before the enacting clause
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10 and insert:
11 A bill to be entitled
12 An act relating to liens on commercial real
13 estate; creating ch. 714, F.S., the "Commercial
14 Real Estate Lien Act"; providing definitions;
15 specifying conditions under which a broker is
16 entitled to a lien on commercial real estate;
17 requiring a written instrument; requiring the
18 recording of a notice of lien; providing for
19 the contents and service of such notice;
20 providing requirements with respect to
21 installment and future commissions, leases,
22 sales of property before commission is due, and
23 written instruments with transferees; providing
24 for enforcement of the lien by lawsuit;
25 requiring written demand to initiate or file an
26 answer to such lawsuit; providing conditions
27 for satisfaction or release of the lien;
28 providing for an alternative dispute resolution
29 process; providing for assessment of costs,
30 fees, and interest; declaring any waiver of
31 lien rights void; providing priority of other
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1 recorded liens, mortgages, and encumbrances;
2 providing for escrow of disputed amounts;
3 amending s. 475.42, F.S.; providing that
4 brokers may place liens on property as provided
5 by law; providing an effective date.
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