Florida Real Estate Laws Page 10

475.631 Nonresident licenses and certifications. --

(1) Notwithstanding the requirements for certification set forth in ss. 475.615 and 475.616, the board may enter into written agreements with similar licensing or certification authorities of other states, territories, or jurisdictions of the United States to ensure for state-certified appraisers nonresident licensure or certification opportunities comparable to those afforded to nonresidents by this section. Whenever the board determines that another jurisdiction does not offer nonresident licensure or certification to state-certified appraisers substantially comparable to those afforded to certified appraisers or licensees of that jurisdiction by this section, the board shall require certified appraisers or licensees of that jurisdiction who apply for nonresident certification to meet education, experience, and examination requirements substantially comparable to those required by that jurisdiction with respect to state-certified appraisers who seek nonresident licensure or certification, not to exceed such requirements as are prescribed in ss. 475.615 and 475.616.

(2)(a) An applicant who is not a resident of this state shall file an irrevocable consent that suits and actions may be commenced against her or him in any county of this state in which a plaintiff having a cause of action or suit against her or him resides and that service of any process or pleading in suits or actions against her or him may be made by delivering the process or pleading to the director of the Division of Real Estate by certified mail, return receipt requested, and also to the certified appraiser or licensee by registered mail addressed to the certified appraiser or licensee at her or his designated principal place of business. Service, when so made, must be taken and held in all courts to be as valid and binding upon the certified appraiser or licensee as if made upon her or him in this state within the jurisdiction of the court in which the suit or action is filed. The irrevocable consent must be in a form prescribed by the department and be acknowledged before a notary public.

(b) Any resident state-certified appraiser who becomes a nonresident shall, within 60 days, notify the board of the change in residency and comply with nonresident requirements. Failure to notify and comply is a violation of the license law, subject to the penalties in s. 475.624.

(c) All nonresident applicants, certified appraisers, and licensees shall comply with all requirements of board rules and this part. The board may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary for the regulation of nonresident certified appraisers and licensees.

History. --s. 20, ch. 2003-164.

PART III

COMMERCIAL REAL ESTATE
SALES COMMISSION LIEN ACT

475.700 Popular name.

475.701 Definitions.

475.703 Broker's lien for sales commission.

475.705 Contents of commission notice; delivery to owner and closing agent.

475.707 Recording commission notice; effectiveness.

475.709 Duties of closing agent; reservation of owner's net proceeds.

475.711 Interpleader or other proceedings; deposit of reserved proceeds in court registry; discharge of closing agent from further liability.

475.713 Civil action concerning commission; order to show cause; hearing; release of proceeds; award of costs and attorney's fees.

475.715 Priority of recorded commission notice.

475.717 Service of notice.

475.719 Buyer's broker.

475.700 Popular name. --Sections 475.700-475.719 may be cited as the "Commercial Real Estate Sales Commission Lien Act."

History. --s. 1, ch. 2005-275.

475.701 Definitions. --As used in this part:

(1) "Broker" has the same meaning as in s. 475.01.

(2) "Brokerage agreement" means a written contract entered into on or after the effective date of this act between an owner of commercial real estate and a broker that obligates the owner to pay a commission to the broker for licensed services provided by the broker relating to the sale or disposition of the commercial real estate as specified in the contract.

(3) "Closing" means the delivery, exchange, and release of documents and funds for the completion of a transaction for the disposition of commercial real estate.

(4) "Closing agent" means the person who receives documents and funds for recording and disbursement in closing a transaction for the disposition of commercial real estate.

(5) "Commercial real estate" means a fee simple interest or other possessory estate in real property, except an interest in real property that is:

(a) Improved with one single-family residential unit or one multifamily structure containing one to four residential units;

(b) Unimproved and the maximum permitted development is one to four residential units under any restrictive covenants, zoning regulations, or comprehensive plan applicable to that real property; or

(c) Improved with single-family residential units such as condominiums, townhouses, timeshares, mobile homes, or houses in a subdivision that may be legally sold, leased, or otherwise conveyed on a unit-by-unit basis, regardless of whether these units may be a part of a larger building or parcel containing more than four residential units.

(6) "Commission" means any fee or other compensation that an owner agrees to pay a broker for licensed services as specified in a brokerage agreement.

(7) "Commission notice" means the written notice claiming a commission made by a broker under s. 475.705.

(8) "Days" means calendar days, but if a period would end on a day other than a business day, then the last day of that period shall instead be the next business day.

(9) "Disposition" means a voluntary conveyance or transfer of the title to or other ownership interest in any commercial real estate specified in a brokerage agreement. A disposition does not include a transfer pursuant to a foreclosure sale and does not include a lease.

(10) "Disputed reserved proceeds" means the portion of the owner's net proceeds reserved by a closing agent under s. 475.709 that the owner disputes the broker's right to receive such reserved proceeds under s. 475.709(5).

(11) "Owner" means a person that is vested with fee simple title or a possessory estate in commercial real estate.

(12) "Owner's net proceeds" means the gross sales proceeds that the owner is entitled to receive from the disposition of any commercial real estate specified in a brokerage agreement, less the following:

(a) Any money that is required to pay any encumbrance, claim, or lien that has priority over the recorded commission notice as provided in s. 475.715 other than an encumbrance, claim, or lien that the buyer of the commercial real estate authorizes to remain after the disposition.

(b) Any costs incurred by the owner to close the disposition, including, but not limited to, real estate transfer tax, title insurance premiums, ad valorem taxes and assessments, and escrow fees payable by the owner pursuant to an agreement with the buyer.

(13) "Real property" means one or more parcels or tracts of land located in this state, including any appurtenances and improvements.

History. --s. 1, ch. 2005-275.

475.703 Broker's lien for sales commission. --

(1) A broker has a lien upon the owner's net proceeds from the disposition of commercial real estate for any commission earned by the broker with respect to that disposition pursuant to a brokerage agreement. The lien upon the owner's net proceeds pursuant to this part for a broker's commission is a lien upon personal property, attaches to the owner's net proceeds only, and does not attach to any interest in real property.

(2) For purposes of this part, a commission is earned on the earlier of the date that:

(a) An event occurs under the brokerage agreement that defines when the commission is earned; or

(b) The owner enters into a contract for the disposition of all or part of the commercial real estate specified in the brokerage agreement, provided that a commission would be payable to the broker pursuant to the brokerage agreement if the disposition occurs under that contract.

(3) For the purposes of this part, a commission is payable at the time provided in the brokerage agreement. If payment of the commission is conditioned on the occurrence of an event and that event does not occur, a broker may not enforce a lien for that commission under this part.

(4) A broker's lien for commission arising under this part:

(a) Belongs to the broker named in the brokerage agreement and not to an employee or independent contractor of the broker.

(b) Cannot be assigned voluntarily or by operation of law and may not be enforced by a person other than the broker.

(c) Cannot be waived before the commission is earned.

(d) Cannot be waived by any person other than the broker, regardless of whether that person may execute and bind the broker to a brokerage agreement.

(5) A broker shall disclose to the owner at or before the time the owner executes the brokerage agreement that this part creates lien rights for a commission earned by the broker that are not waivable before the commission is earned by the broker. A broker may not enforce a lien under this part for a commission earned under a brokerage agreement for which the disclosure required by this subsection was not made. A disclosure in substantially the following form shall be sufficient: "The Florida Commercial Real Estate Sales Commission Lien Act provides that when a broker has earned a commission by performing licensed services under a brokerage agreement with you, the broker may claim a lien against your net sales proceeds for the broker's commission. The broker's lien rights under the act cannot be waived before the commission is earned."

History. --s. 1, ch. 2005-275.

475.705 Contents of commission notice; delivery to owner and closing agent. --

(1) A commission notice made by a broker with respect to a commission claimed under this part shall be in writing, shall be signed and sworn to or affirmed by the broker under penalty of perjury before a notary public, and shall include the following:

(a) The name of the owner of the commercial real estate who is obligated to pay the claimed commission.

(b) The legal description of the commercial real estate.

(c) The name, mailing address, telephone number, and license number of the broker.

(d) The effective date of the brokerage agreement.

(e) The amount of the commission claimed by the broker, which may be stated in a dollar amount or may be stated in the form of a formula determining the amount, such as a percentage of the sales price.

(f) A statement under penalty of perjury that the broker has read the commission notice, knows its contents, believes the same to be true and correct, and makes the commission claim pursuant to the brokerage agreement described in the notice.

(g) A statement that the commission notice or a copy thereof has been delivered to the owner and that the commission notice may be recorded in the public records of the county or counties where the commercial real estate is located.

(h) A statement that this part provides that if the owner disputes the claimed commission the owner shall notify the closing agent of such dispute not later than 5 days after the closing, or the owner will be deemed to have confirmed the commission and this part will require the closing agent to pay the commission to the broker from the owner's net proceeds from the disposition of the commercial real estate.

(2) A commission notice in substantially the following form shall be sufficient for purposes of subsection (1):

BROKER'S COMMISSION NOTICE UNDER
FLORIDA COMMERCIAL REAL ESTATE
SALES COMMISSION LIEN ACT


Notice is hereby given pursuant to the Florida Commercial Real Estate Sales Commission Lien Act, part III of chapter 475, Florida Statutes (the "act"), that the undersigned real estate broker is entitled to receive a sales commission in the amount set forth below from the owner named below pursuant to the terms of a written brokerage commission agreement regarding the commercial real estate described below, and the undersigned broker claims a lien under the act against the owner's net proceeds from the disposition of the commercial real estate. The act and this commission notice do not create a lien against the commercial real estate itself, but only against the owner's net proceeds.


1. Name of the owner who is obligated to pay the commission:


2. Legal description of the commercial real estate:


3. Name, mailing address, telephone number, and Florida broker license number of the undersigned broker:







4. Effective date of the written brokerage commission agreement between the owner and the broker under which the commission is or will be payable: _________________________, ____________________.

5. Amount of commission claimed by the undersigned broker:

$____________________, or_______________ percent of sales price, or

[specify other formula for determination of commission amount]:
______________________________.

6. The undersigned broker, under penalty of perjury, hereby swears or affirms that the undersigned broker has read this commission notice, knows its contents and believes the same to be true and correct, and that the undersigned broker is making this commission claim pursuant to the written brokerage commission agreement described in this commission notice.

7. The undersigned broker confirms that this commission notice or a copy thereof has been delivered to the owner.

Signed: (broker)

Signed: (notary public)

(3) Subject to subsection (4), if a broker wishes to enforce a lien for a commission under this part, the broker shall, within 30 days after a commission is earned by the broker pursuant to s. 475.703(2) and at least 1 day before the closing, deliver a copy of the commission notice to:

(a) The owner of the commercial real estate specified in the brokerage agreement.

(b) The closing agent designated to close the transaction for the disposition of the commercial real estate, if the broker then knows the identity of the closing agent. If the identity of the closing agent thereafter becomes known to the broker, then the broker shall deliver a copy of the commission notice to the closing agent within 3 days after the broker acquires such knowledge and at least 1 day before the closing.

(4) Except as provided in this subsection, a broker who fails to deliver a copy of a commission notice as required under subsection (3) within the period specified therein may not enforce a lien for the commission under this part. If a broker fails to deliver a copy of the commission notice within said period solely because the owner entered into a contract for the disposition of the commercial real estate without the knowledge of the broker, the broker may enforce a lien for the commission under this part if:

(a) The copy of the commission notice is delivered to the owner and the closing agent before the closing agent disburses the owner's net proceeds to the owner.

(b) The broker executes and delivers to the closing agent a sworn affidavit stating that the copy of the commission notice was not delivered within the time period specified in subsection (3) solely because the owner entered into a contract for the disposition of the commercial real estate without the knowledge of the broker.

Notwithstanding the provisions of this subsection, a broker who fails to deliver a copy of a commission notice to the owner and the closing agent before the disbursement of the owner's net proceeds may not enforce a lien for the commission under this part, and the delivery of a copy of a commission notice after such disbursement is ineffective under this part.

History. --s. 1, ch. 2005-275.

475.707 Recording commission notice; effectiveness. --

(1) After a broker delivers the copies of a commission notice as provided in s. 475.705, the broker may record the commission notice in the public records maintained by the clerk of court in the county or counties in which the commercial real estate is located.

(a) Subject to the limitation in paragraph (b), the broker's lien created by this part against the owner's net proceeds is perfected by such recording of the commission notice and takes priority pursuant to this part as of the date of the recording of the commission notice. The priority of the lien does not relate back to the date of the brokerage agreement.

(b) The recording of the commission notice shall not constitute constructive notice to a closing agent unless the commission notice has been of record for at least 60 days.

(2) A recorded commission notice is effective under this part only with respect to dispositions made by the owner named in the commission notice, and after the recordation of a deed from the owner conveying the commercial real estate specified in the commission notice to a bona fide purchaser for value, the commission notice is ineffective with respect to any subsequent dispositions of that commercial real estate.

(3) A commission notice recorded under this part expires 1 year after the date of recording, unless the brokerage agreement remains effective after the expiration date of the commission notice and the broker records an extension notice in the same public records within the last 60 days before such expiration date. An extension notice shall refer to the recording information of the original commission notice, shall state that the brokerage agreement remains effective, and shall include the information and be executed in the manner as required by s. 475.705(1) for the original commission notice. A timely recorded extension notice shall extend the expiration date of the original recorded commission notice by 1 additional year. Successive extension notices may be recorded for so long as the brokerage agreement remains effective between the broker and the owner. Within 10 days after recording an extension notice, the broker shall deliver a copy thereof to the owner.

(4) The delivery or recording of a commission notice or the enforcement of a commission claim by a broker under this part does not relieve the owner from the owner's obligation to close a disposition transaction for any commercial real estate.

(5) Whenever a commission notice is recorded and a condition or event occurs or fails to occur that would preclude the broker from receiving the claimed commission under the terms of the brokerage agreement, including the filing of a commission notice in a manner that does not comply with this part, the broker shall, within 7 days following demand by the owner, record a written release of the commission notice in the public records of the county where the commission notice was recorded.

(6) If a broker records a commission notice pursuant to this section and the claimed commission is paid or the commission notice is otherwise discharged or satisfied pursuant to this part, the broker shall, within 7 days after the commission is paid or the commission notice is otherwise discharged or satisfied, record a written release of the commission notice in the public records of the county where the commission notice was recorded.

History. --s. 1, ch. 2005-275.

475.709 Duties of closing agent; reservation of owner's net proceeds. --

(1)(a) The closing agent shall reserve from the owner's net proceeds an amount equal to the commission claimed by the broker in the commission notice if, before the closing agent disburses the owner's net proceeds from the closing of a disposition of commercial real estate:

1. A commission notice pertaining to the commercial real estate is delivered to the closing agent in accordance with s. 475.705;

2. A commission notice pertaining to the commercial real estate has been recorded for at least 60 days pursuant to s. 475.707 and has not expired or been released or canceled as provided in this part; or

3. The closing agent has actual knowledge of a commission notice pertaining to the commercial real estate that has been recorded pursuant to s. 475.707 and has not expired or been released or canceled as provided in this part.

(b) If the owner's net proceeds are insufficient to pay the full amount of the claimed commission, the closing agent shall reserve the entire amount of the owner's net proceeds. The closing agent shall release the reserved proceeds only in accordance with the provisions of this part.

(2)(a) The closing agent designated to close a transaction for the disposition of commercial real estate may require the owner of the commercial real estate to deliver a sworn affidavit identifying the commercial real estate and disclosing to the closing agent:

1. Whether the owner is a party to any brokerage agreement under which any broker or brokers may have a right to claim a commission from the disposition of the commercial real estate.

2. The name, mailing address, and telephone number of any brokers who may have a right to claim a commission, if known to the owner.

3. The amount of any and all commissions that may be claimed under any brokerage agreement disclosed in the owner's affidavit, to the best of the owner's knowledge and belief.

4. Whether the owner confirms or disputes the amount of any commission claimed from the disposition of the commercial real estate as disclosed in the owner's affidavit.

(b) If the closing agent receives an affidavit from the owner under this subsection disclosing that any commission may be claimed from the disposition of the commercial real estate, regardless of whether the owner confirms or disputes the commission, the closing agent shall reserve from the owner's net proceeds an amount equal to the total commission amount disclosed by the owner in the affidavit. Upon request by a broker who has a brokerage agreement with the owner covering the commercial real estate identified in the owner's affidavit, the closing agent shall deliver a copy of the affidavit to the broker. If the owner's net proceeds are insufficient to pay the full amount of the commission so disclosed, the closing agent shall reserve the entire amount of the owner's net proceeds. If the owner's affidavit discloses a commission amount that is different from the commission amount required to be reserved under subsection (1), the closing agent shall reserve the greater of the two commission amounts. The closing agent shall release the reserved proceeds only in accordance with the provisions of this part.

(3) If the provisions of subsection (1) do not require the closing agent to reserve against the owner's net proceeds on account of a commission notice pertaining to the commercial real estate, and if the closing agent receives an owner's affidavit pursuant to subsection (2) stating that the owner is not a party to any brokerage agreement under which any commission may be claimed from the disposition of the commercial real estate, the closing agent has no duty under this part to reserve any money or property for a commission from the owner's net proceeds from the disposition of the commercial real estate.

(4) If the closing agent determines that the owner's net proceeds from a disposition of commercial real estate are insufficient to pay the full amount of the commission claimed in a commission notice or disclosed in an owner's affidavit, the closing agent shall, within 3 days after making that determination but no later than the closing of the disposition, notify the owner and the broker of the determination. The closing agent's determination that the owner's net proceeds are insufficient under this part, however, does not relieve the owner from the owner's contractual obligations under the brokerage agreement to pay the full commission owing to the broker.

(5) If the owner confirms that a commission is payable to the broker, at the closing of the disposition of the commercial real estate the closing agent shall release to the broker the confirmed amount of the commission from the reserved proceeds. A settlement statement executed by the owner and showing the payment of a commission to the broker is confirmation by the owner of the commission amount shown on the settlement statement. If the owner disputes the broker's right to receive all or any portion of the claimed commission, the closing agent shall release to the broker from the reserved proceeds only the undisputed portion of the commission, if any. Until the rights of the owner and the broker with respect to the disputed reserved proceeds are determined pursuant to s. 475.711 or s. 475.713 or the owner and the broker otherwise agree in writing, the closing agent shall not release the disputed reserved proceeds to any person other than to deposit the same in the registry of the court having jurisdiction of the dispute.

(6) The commission claimed in the commission notice shall be deemed confirmed by the owner, and the closing agent shall release the reserved proceeds to the broker, if the closing agent is required pursuant to subsection (1) to reserve any or all of the owner's net proceeds, and if:

(a) Five days have passed after the closing.

(b) The owner has neither confirmed nor disputed the claimed commission to the closing agent.

(c) The closing agent receives reasonably satisfactory evidence that the broker delivered a copy of the commission notice to the owner in accordance with s. 475.705.

(7) If the owner's net proceeds consist in whole or in part of a purchase-money note, and if the money portion of the owner's net proceeds is insufficient to pay the full amount of the commission claimed, the broker's lien under this part for the portion of the commission not paid from the money proceeds shall attach to the purchase-money note and any security therefor, and the closing agent shall reserve and release the purchase-money note in accordance with this part in the same manner as the money portion of the reserved proceeds. If the owner and the broker are unable to agree within 5 days after the closing regarding the closing agent's release of the purchase-money note, the closing agent shall interplead the purchase-money note along with any money reserved proceeds in accordance with s. 475.711.

(8) If the disposition of the commercial real estate is part of a like-kind exchange by the owner which is deferred from federal income tax under s. 1031 of the Internal Revenue Code of 1986, as amended, and if all of the owner's net proceeds in excess of undisputed commissions shall be delivered to a third party in order to qualify the disposition for such tax deferral treatment, the owner may substitute other cash, a surety bond, an unconditional letter of credit, or other liquid security acceptable to the broker in lieu of any disputed reserved proceeds held by the closing agent under this section or deposited in the court registry in accordance with s. 475.711.

(9) Upon request of the closing agent or the owner, any broker who has recorded a commission notice under s. 475.707 shall submit a satisfaction or release of the commission notice in recordable form to the closing agent to be held in escrow pending the closing and the closing agent's release to the broker of the portion of the owner's net proceeds reserved by the closing agent under this section. The closing agent is authorized to deduct from the reserved proceeds payable to the broker the cost of recording the satisfaction or release of the commission notice.

(10) Neither the closing agent's requirement for an owner's affidavit pursuant to subsection (2), nor the closing agent's reservation of any portion of an owner's net proceeds pursuant to subsection (1) or subsection (2), shall relieve the owner of the owner's obligation to close the transaction for the disposition of the commercial real estate, including, without limitation, any obligation of the owner to the buyer under the purchase and sale contract to discharge mortgages, liens, or encumbrances against the commercial real estate that were recorded after the commission notice and, therefore, are not subtracted from gross sales proceeds when computing the owner's net proceeds under s. 475.719.

(11) A closing agent is not liable to the owner, the broker, or any other person in any civil action for any action taken by the closing agent to comply with the provisions of this part.

(12) No provision of this part shall require a closing agent to serve involuntarily more than 5 days after a closing as an escrow agent or stakeholder for any moneys or other property that are disputed by the owner and the broker under the provisions of this part.

History. --s. 1, ch. 2005-275.

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