Florida Real Estate Laws

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

(1) The closing agent shall, by interpleader action or other legal proceeding, seek adjudication of the rights of the parties with respect to disputed reserved proceeds by the county court or circuit court, whichever may have jurisdiction of controversies in the amount of the disputed reserved proceeds, in a county where all or a portion of the commercial real estate is located if, after the closing of a transaction for the disposition of the commercial real estate:

(a) The closing agent has reserved all or a portion of the owner's net proceeds pursuant to s. 475.709 and the owner disputes the release to the broker of all or any portion of the reserved proceeds.

(b) The owner and the broker have not agreed in writing, within 5 days after the closing, regarding the closing agent's release of the disputed reserved proceeds.

(c) Neither the owner nor the broker have commenced a civil action to determine the rights of the parties with respect to the disputed reserved proceeds.

(2) Unless otherwise agreed to by the owner and the broker in writing, the closing agent shall deposit the net amount of disputed reserved proceeds in the registry of the court having jurisdiction of any legal action or proceeding to determine the rights of the parties in the disputed reserved proceeds, whether commenced by the closing agent under subsection (1) or commenced by the owner or the broker under s. 475.713 or otherwise. The closing agent shall determine the net amount of disputed reserved proceeds deposited in the court registry by deducting from the disputed reserved proceeds:

(a) Any costs incurred by the closing agent to commence such action or proceeding, or to appear in any such action or proceeding commenced by the owner or the broker, including reasonable attorney's fees.

(b) The costs of recording the affidavit described in subsection (3) if any commission notice has been recorded.

(c) The service charges of the clerk of court under s. 28.24 for receiving the net amount of such disputed reserved proceeds into the registry of the court.

(3) If a commission notice has been recorded in the public records of the county or counties where the commercial real estate is located, upon depositing the net disputed reserved proceeds with the clerk of court pursuant to subsection (2), the closing agent shall execute and record an affidavit referring to the recorded commission notice and stating that the net disputed reserved proceeds have been so deposited in accordance with this part. The recording of the affidavit shall operate to release the recorded commission notice.

(4) If a closing agent deposits the net disputed reserved proceeds with the clerk of court pursuant to subsection (2), the closing agent is discharged from any further liability or responsibility concerning the disputed reserved proceeds.

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

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

(1) If a commission notice claiming a commission is delivered to an owner pursuant to s. 475.705 and the owner disputes the claimed commission, the owner or the broker may file a civil action concerning the commission claim in the county court or circuit court, whichever has jurisdiction of controversies in the amount of the claimed commission, of the county where the commercial real estate or a portion of the commercial real estate is located.

(2) In a civil action by the owner, at the time the summons is issued or at any time before the complaint is answered by the broker, the owner may apply to the court for an order directing the broker to appear before the court at a time not earlier than 7 days or later than 15 days after the date of service of the motion and order on the broker to show cause why the commission claim should not be dismissed. The motion must state the grounds upon which relief is sought and must be supported by the affidavit of the owner setting forth a concise statement of the facts upon which the motion is based. The order to show cause shall clearly state that if the broker fails to appear at the time and place specified in the order, the broker's claim of lien against the owner's net proceeds under this part shall be released, with prejudice, and the broker shall be ordered to pay the costs incurred by the owner and the closing agent, including reasonable attorney's fees.

(3) The court shall issue an order releasing the broker's claim of lien against the owner's net proceeds from such disposition, discharging any commission notice that 1 may have been recorded, ordering the release to the owner of the disputed reserved proceeds, and awarding costs and reasonable attorney's fees to the owner to be paid by the broker if, following a hearing, the court determines that the owner is not a party to a brokerage agreement that will result in the owner being obligated to pay the broker the claimed commission or any portion thereof with respect to the disposition of the commercial real estate identified in the commission notice. If the court determines that the owner is a party to a brokerage agreement that will result in the owner being obligated to pay the broker the claimed commission or any portion thereof with respect to the disposition of the commercial real estate identified in the commission notice, the court shall issue an order so stating, ordering the release to the broker of the disputed reserved proceeds or such portion thereof to which the court determines that the broker is entitled, and awarding costs and reasonable attorney's fees to the broker to be paid by the owner. Such orders are final judgments.

(4) A certified copy of any order issued by the court pursuant to subsection (3) discharging a recorded commission notice shall be recorded at the expense of the broker in the public records where the commission notice was recorded, and such order shall operate as a cancellation of the recorded commission notice.

(5)(a) In a civil action commenced by the owner or the broker under this section or in an interpleader action or other proceeding commenced by the closing agent under s. 475.711, the owner or the broker that is not the prevailing party shall be required to pay:

1. The costs and reasonable attorney's fees incurred in the action by the prevailing party.

2. The costs and reasonable attorney's fees incurred in the action by the closing agent.

3. The amount of any costs, recording charges, and service charges of the clerk of court that were deducted from the disputed reserved proceeds under s. 475.711(2) in determining the net amount thereof deposited into the registry of the court.

(b) If the court determines that neither the owner nor the broker is the prevailing party, the amounts set forth in subparagraphs (a)1. and 2. shall be divided equally between and paid by the owner and the broker.

(6) Proceedings conducted pursuant to this section shall not affect rights and remedies otherwise available to the owner or the broker under other applicable law.

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

1 Note. --The word "be" following the word "may" was deleted by the editors.

475.715 Priority of recorded commission notice. --All statutory liens, consensual liens, mortgages, deeds of trust, assignments of rents, and other encumbrances, including all advances or charges made or accruing thereunder, whether voluntary or obligatory, and all modifications, extensions, renewals, and replacements thereof, recorded prior to the recording of a commission notice pursuant to the provisions of s. 475.707, have priority over the commission notice, and the amount required to discharge such prior recorded liens shall be subtracted from gross sales proceeds in computing the owner's net proceeds unless the buyer permits the same to remain a lien against the title to the commercial real estate. A prior recorded lien includes, without limitation, a valid construction lien claim that is recorded after the recording of the broker's commission notice but which relates back to a notice of commencement recorded under s. 713.13 prior to the recording date of the broker's commission notice.

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

475.717 Service of notice. --Notices to be delivered to a party pursuant to this part other than service of process as required in civil actions shall be by service of process, by registered or certified mail with return receipt requested, or by personal or electronic delivery and obtaining evidence of delivery in the form of a receipt or other paper or electronic acknowledgment by the party to whom the notice is delivered. Delivery is effective at the time of personal service, personal or electronic delivery, or 3 days following deposit in the mail as required by this section. Notice to a broker or owner may be given to the address of the broker or owner that is contained in the brokerage agreement or such other address as is contained in a written notice from the broker or owner to the party giving the notice. If no address is provided in the brokerage agreement, the notice to the broker may be given to the broker's address contained in the commission notice. Notice to a closing agent shall be addressed to the individual responsible for the closing if the person sending the notice knows that individual's name.

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

475.719 Buyer's broker. --As used in this section, the term "buyer's broker" means a broker that is entitled to receive payment from the buyer of commercial real estate of any fee or other compensation for licensed services, as specified in a written contract made between the buyer and the broker on or after the effective date of this act relating to the buyer's purchase of the commercial real estate.

(1) A written contract between a buyer and a buyer's broker for the payment by the buyer of any fee or other compensation to the buyer's broker for licensed services relating to the sale or disposition of commercial real estate to the buyer is not a brokerage agreement with the owner under this part, and the buyer's broker is not entitled under this part to record any commission notice, to claim any lien against commercial real estate, or to claim any lien against the owner's net proceeds from the sale or disposition of commercial real estate.

(2) If an owner enters into a written contract with a buyer for the sale or disposition of any commercial real estate that will entitle the buyer's broker to receive a fee or other compensation from the buyer under the terms of the buyer's broker's written contract with the buyer, the buyer's broker may give notice of the buyer's broker's right to receive such payment to the closing agent, the owner, the buyer, or any other party to the sale or disposition or the financing thereof, provided that such notice may be given without violating any confidentiality provisions contained in either such written contract.

(3) No such notice given by the buyer's broker pursuant to subsection (2) shall constitute a tortious interference with the sale or disposition or financing of the commercial real estate, except this section shall not affect the rights and remedies otherwise available to the owner, the buyer, or the buyer's broker under other applicable law.

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

PART IV

COMMERCIAL REAL ESTATE
LEASING COMMISSION LIEN ACT

475.800 Short title.

475.801 Definitions.

475.803 Broker's lien for leasing commission.

475.805 Contents of lien notice.

475.807 Recording lien notice; effectiveness.

475.809 Foreclosure of lien; civil action by owner; award of costs and attorney's fees.

475.811 Transfer of lien to security.

475.813 Subordination of lien.

475.800 Short title. --Sections 475.800-475.813 may be cited as the "Commercial Real Estate Leasing Commission Lien Act."

History. --s. 2, ch. 2005-275.

475.801 Definitions. --As used in this part:

(1) "Automatic renewal commission" means a renewal commission for which the brokerage agreement does not expressly require the broker to perform any additional services in order to receive the renewal commission.

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

(3) "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 leasing of the commercial real estate as specified in the contract.

(4) "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.

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

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

(7) "Lease" means a written agreement creating a relationship of landlord and tenant with respect to commercial real estate, such that the tenant acquires from the landlord the right to possess the commercial real estate for a specified period of time.

(8) "Lien notice" means the written notice of lien made by a broker claiming a commission under s. 745.805.

(9) "Owner" means a person that is vested with fee simple title or a possessory estate, including a leasehold, in commercial real estate that is the subject of a lease. For purposes of this part, the owner obligated to pay a commission under a brokerage agreement may be a landlord or a tenant.

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

(11) "Renewal commission" means an additional commission that may become payable to a broker under a brokerage agreement if a lease subject to that brokerage agreement is later renewed or is later modified to expand the leased premises or extend the lease term.

History. --s. 2, ch. 2005-275.

475.803 Broker's lien for leasing commission. --

(1) A broker has a lien upon the owner's interest in commercial real estate for any commission earned by the broker pursuant to a brokerage agreement with respect to a lease of the commercial real estate. If the owner obligated to pay the commission is the landlord, the broker's lien attaches to the landlord's interest in the commercial real estate identified in the brokerage agreement but not to the tenant's leasehold estate. If the owner obligated to pay the commission is the tenant, the broker's lien attaches to the tenant's leasehold estate but not to the landlord's interest in the commercial real estate.

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

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

(b) The owner enters into a lease 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 for that lease.

(3) For the purposes of this part, a renewal commission with respect to a lease renewal or lease modification is deemed earned when the broker performs all additional services relating to the lease renewal or lease modification that are expressly required by the brokerage agreement. If the brokerage agreement does not expressly require the broker to perform any additional services in order to receive the renewal commission, the renewal commission is an automatic renewal commission and is deemed earned when the broker first earned a commission for that lease.

(4) For 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.

(5) 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.

(6) 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 Leasing 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 interest in the property for the broker's commission. The broker's lien rights under the act cannot be waived before the commission is earned."

History. --s. 2, ch. 2005-275.

475.805 Contents of lien notice. --

(1) A lien 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) A statement whether the owner obligated to pay the commission is the landlord or the tenant under the lease for which the commission is claimed.

(c) The name of the person owning the fee simple interest in the commercial real estate, if other than the owner obligated to pay the commission.

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

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

(f) The effective date of the brokerage agreement.

(g) 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 rents payable under the lease.

(h) A description of the lease sufficient to identify the lease for which the commission is claimed, including, if then known to the broker, the names of the landlord and tenant under the lease, the date of the lease, and the identification of the leased premises.

(i) A statement of whether the broker is claiming an automatic renewal commission and the amount of such automatic renewal commission or the formula for computing the same.

(j) A statement under penalty of perjury that the broker has read the lien 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 lien notice.

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

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


Notice is hereby given, pursuant to the Florida Commercial Real Estate Leasing Commission Lien Act, part IV of chapter 475, Florida Statutes (the "act"), that the undersigned real estate broker is entitled to receive a leasing commission from the owner named below pursuant to the terms of a written brokerage commission agreement regarding a lease of the commercial real estate described below, and the undersigned broker claims a lien under the act against the owner's interest in the commercial real estate in the amount set forth below.

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


2. (Check one:) The owner obligated to pay the commission is:

[ ] the landlord under the lease.

[ ] the tenant under the lease.

3. Name of the person owing the fee simple interest in the commercial real estate, if other than the owner who is obligated to pay the commission:


4. Legal description of the commercial real estate:


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










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

7. Amount of commission claimed by the undersigned broker:

$_________________________, or _________________________ percent of rents payable under lease, or

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

8. The lease for which the commission is claimed is described as follows [provide all information known to the broker]:

Name of landlord: ____________________

Name of tenant: ____________________

Date of lease: _________________________,

Leased premises: ____________________

9. Automatic renewal commissions (check yes or no): Is the undersigned broker claiming a commission that may become payable if the lease is later renewed or modified to expand the leased premises or to extend the lease term, but the written brokerage commission agreement does not expressly require the broker to perform any additional services in order to receive this later commission?

[ ] Yes

[ ] No

If yes, specify the amount of such later commission or the formula for computing the later commission:


10. The expiration date of this lien notice is 2 years after the date of recording, unless the answer to paragraph 9 is yes, in which case the expiration date of this lien notice for the commission described in paragraph 9 is 10 years after the date of recording.

11. The undersigned broker, under penalty of perjury, hereby swears or affirms that the undersigned broker has read this lien 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 lien notice.

Signed: (broker)

Signed: (notary public)

History. --s. 2, ch. 2005-275.

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