§ 32-28-12.5-9 — Lease of commercial real estate; recording of notice of lien; future fees or commissions; memorandum of lien; action to foreclose; sale or conveyance before fees become due

Indiana § 32-28-12.5-9

• Jurisdiction: Indiana
• Title 32: PROPERTY
• Art. 28: LIENS ON REAL PROPERTY
• Ch. 12.5: Commercial Real Estate Broker Liens

Text

(a) Subject to subsection (b), in the case of
a lease of commercial real estate, including a sublease or an assignment
of a lease, the notice of a lien under this chapter must be recorded not
later than ninety (90) days after the tenant takes possession of the
leased premises. However, if:
(1) the transferor personally serves, on the broker company
entitled to claim a lien, written notice of the intended execution
of the lease; and
(2) the notice described in subdivision (1) is served not later than
ten (10) days before the date of the intended execution of the
lease;
the broker company's notice of lien must be recorded before the date
indicated in the notice described in subdivision (1) for the execution of
the lease. The lien attaches on the recording of the notice of lien and
does not relate back to the date of the written agreement, contract, or
written instrument under which the broker company is entitled to fees
or commissions.
(b) As used in this subsection, "future fees or commissions" refers
to fees or commissions:
(1) other than those fees or commissions due to a broker company
upon the execution of a lease under subsection (a); or
(2) due to the broker company upon the exercise of an option to:
(A) expand the leased premises;
(B) renew or extend a lease; or
(C) purchase the commercial real estate;
under a written agreement, a contract, or another written instrument
signed by the owner or tenant of the commercial real estate. The broker
company may record a memorandum of lien at any time after execution
of the lease or other written agreement, contract, or written instrument
that contains rights to future fees or commissions. The broker company
shall record a notice of lien no later than ninety (90) days after the
occurrence of a condition for which future fees or commissions are
claimed, but may not file a notice of lien against an owner's property if
the tenant is the sole party liable for payment of the future fees or
commissions. Except as provided in section 11(a) or 13(b) of this
chapter, an action to foreclose a lien to collect future fees or
commissions must be commenced not later than one (1) year after the
recording of the notice of the lien. A memorandum of lien recorded
under this chapter must meet the requirements of section 12(1)(A),
12(1)(B), 12(1)(C), 12(1)(E), 12(2), 12(3), and 12(4) of this chapter. A
memorandum of lien shall not constitute a lien against the real estate
but shall provide notice of the right to future fees or commissions.
(c) If:
(1) commercial real estate is sold or otherwise conveyed before
the date on which future fees or commissions are due; and
(2) the broker company has recorded a valid memorandum of lien
or notice of lien before the sale or other conveyance of the
commercial real estate;
the purchaser or transferee is considered to have notice of and takes
title to the commercial real estate subject to the right to future fees or
commissions and, if applicable, notice of lien. However, if a broker
company claiming future fees or commissions fails to record a
memorandum of lien or notice of lien for the future fees or
commissions before the recording of a deed conveying legal title to the
commercial real estate to the purchaser or transferee, the broker
company may not claim a lien on the commercial real estate. This
subsection does not limit or otherwise affect claims or defenses a
broker company or owner or any other party may have in law or equity.

Legislative History

As added by P.L.78-2006, SEC.1. Amended by P.L.1-2007, SEC.212; P.L.127-2012, SEC.55; P.L.116-2015, SEC.28.