2015 Indiana Code TITLE 32. PROPERTY ARTICLE 28. LIENS ON REAL PROPERTY CHAPTER 12.5. COMMERCIAL REAL ESTATE BROKER LIENS
Download as PDF
IC 32-28-12.5
Chapter 12.5. Commercial Real Estate Broker Liens
IC 32-28-12.5-0.5
"Broker company"
Sec. 0.5. As used in this chapter, "broker company" has the
meaning set forth in IC 25-34.1-1-2.
As added by P.L.116-2015, SEC.22.
IC 32-28-12.5-1
"Commercial real estate"
Sec. 1. As used in this chapter, "commercial real estate" means
any real estate other than:
(1) real estate containing one (1) to four (4) residential units;
(2) real estate on which no buildings or structures are located
and that is zoned for single family residential use; or
(3) single family residential units such as:
(A) condominiums;
(B) townhouses; or
(C) homes in a subdivision when sold, leased, or otherwise
conveyed on a unit-by-unit basis, even if those units are part
of a larger building or parcel or real estate containing more
than four (4) residential units.
As added by P.L.78-2006, SEC.1.
IC 32-28-12.5-2
"Fees or commissions"
Sec. 2. As used in this chapter, "fees or commissions" means
compensation owed to a broker company for performing services
requiring a license under IC 25-34.1-3-2.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.49; P.L.116-2015, SEC.23.
IC 32-28-12.5-3
"Managing broker"
Sec. 3. As used in this chapter, "managing broker" has the
meaning set forth in IC 25-34.1-1-2.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.50.
IC 32-28-12.5-4
"Real estate"
Sec. 4. As used in this chapter, "real estate" has the meaning set
forth in IC 25-34.1-1-2.
As added by P.L.78-2006, SEC.1.
IC 32-28-12.5-5
Broker company lien on commercial real estate; fees due under
Indiana Code 2015
written agreement, contract, or instrument
Sec. 5. A broker company may have a lien upon commercial real
estate, or any interest in commercial real estate, that is the subject of
a purchase, a lease, or other conveyance to a buyer or tenant, in the
amount that the broker company is due for licensed services,
including brokerage fees, consulting fees, and management fees due
the broker company under a written agreement, a contract, or another
written instrument:
(1) signed by:
(A) the owner of an interest in the commercial real estate or
by the owner's authorized agent; or
(B) a prospective buyer or prospective tenant, or by the
buyer's or tenant's authorized agent; and
(2) entered into after June 30, 2006.
A lien under this chapter is available to the broker company named
in the written agreement, contract, or other written instrument signed
by the owner, buyer, or tenant, or their respective agents, and not to
an employee or independent contractor of the broker company.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.51; P.L.116-2015, SEC.24.
IC 32-28-12.5-6
When lien attaches to commercial real estate
Sec. 6. (a) A lien under this chapter attaches to commercial real
estate or an interest in commercial real estate upon:
(1) the broker company being entitled to fees or commissions
under a written agreement, a contract, or another instrument
signed by the owner, buyer, or tenant of the commercial real
estate, or by an authorized agent of the owner, buyer, or tenant;
and
(2) except as provided in sections 8 and 9 of this chapter, the
broker company recording a notice of lien in the office of the
recorder of the county in which the commercial real estate or an
interest in the commercial real estate is located:
(A) before the recording of the deed for the actual
conveyance or transfer of the commercial real estate against
which the broker is claiming a lien, if the broker company
claims fees or commissions from the party conveying or
transferring an interest in the commercial real estate; or
(B) not later than ninety (90) days after the recording of the
deed or other instrument for the purchase or other
conveyance or transfer of the commercial real estate, if the
broker company claims fees or commissions from the party
receiving a conveyance or transfer of an interest in the
commercial real estate.
(b) A lien under this chapter attaches on the date of the recording
of the notice of the lien under subsection (a)(2) and does not relate
back to the date of the written agreement, contract, or other written
instrument described in subsection (a)(1).
Indiana Code 2015
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.52; P.L.116-2015, SEC.25.
IC 32-28-12.5-7
Sale of commercial real estate; notice of closing; preservation of
right to file lien; owner's certification at closing
Sec. 7. (a) This section does not apply:
(1) to fees or commissions that arise from a lease, including fees
or commissions for a sale of the property, lease expansions, or
lease renewals;
(2) if a broker company's fees or commissions have been paid
in full; or
(3) if a broker company waives the notice requirements of this
section in writing.
(b) Not later than ten (10) days before the planned closing of a
transaction involving the sale of commercial real estate, the owner
shall notify the following persons of the date of the closing, the time
of the closing, the address of the closing, and of the name of the
closing agent, title company, or title insurance agent:
(1) One (1) or more broker companies to whom the owner owes
fees or commissions.
(2) The closing agent, title company, or title insurance agent
involved in the transaction.
Notice under this subsection shall be sent by registered or certified
mail, return receipt requested, or by another means of service
authorized by the Indiana trial rules that provides proof that the
addressee has received the notice.
(c) To exercise its rights under this chapter to file a lien after
receipt of the notice under subsection (b), the broker company must
notify the closing agent, title company, or title insurance agent at the
address in the notice of the amount of the fees or commissions owed
before the time of the closing stated in the notice.
(d) If the broker company does not attend the closing of a
transaction involving the sale of commercial real estate, the owner
shall certify in writing at the closing, under the penalties of perjury:
(1) that:
(A) the owner has notified the broker company in accordance
with subsection (b); and
(B) the broker company received the notice; or
(2) that the broker company has been paid in full.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.53; P.L.116-2015, SEC.26.
IC 32-28-12.5-8
Installment payments; recording notice of lien; single claim for
lien; partial releases
Sec. 8. (a) This section applies to a transaction involving the
conveyance or transfer of commercial real estate in which:
(1) payment to a broker company is due in installments; and
Indiana Code 2015
(2) a part of the installment payments is due only after the
conveyance or transfer of the commercial real estate involved in
the transaction.
(b) Subject to subsection (c), the broker company may record a
notice of lien for those payments described in subsection (a)(2) at any
time after the transfer or conveyance, but not later than ninety (90)
days after the date on which the payment is due. A notice of lien
under this section is effective as a lien against the transferor's interest
in the commercial real estate only to the extent consideration is still
owed to the transferor by the transferee. However, the lien is effective
against the transferee's interest in the commercial real estate without
the limitation described in this subsection.
(c) A single claim for a lien recorded:
(1) before the transfer or conveyance of the commercial real
estate; and
(2) with respect to all payments due in installments;
is valid and enforceable with respect to payments due after the
transfer or conveyance. However, as payments or partial payments of
fees or commissions are received by the broker company, the broker
company shall, by providing partial releases with respect to those
payments, reduce the amount due the broker company under the
notice of lien described in this subsection.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.54; P.L.116-2015, SEC.27.
IC 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
Sec. 9. (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
Indiana Code 2015
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.
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.
IC 32-28-12.5-10
Notice of lien; service on owner; mailing or personal service
Sec. 10. A broker company shall, not later than ten (10) days after
recording a notice of lien under this chapter, personally serve or mail,
by registered or certified mail, a copy of the notice of lien to the
owner of record of the commercial real estate, or to the agent of the
Indiana Code 2015
owner of record, at the address of the owner stated in the written
agreement, contract, or other written instrument on which the claim
for the lien is based. If the address of the owner or the owner's agent
is not stated, the broker company shall personally serve or mail, by
registered or certified mail, a copy of the notice of the lien to the
address where real estate taxes are sent for the commercial real estate
on which the claim of lien is based. Mailing of the copy of the notice
of lien is effective when deposited in the United States mail with
postage prepaid. Personal service of the notice of the lien is effective
upon receipt by the owner or the agent of the owner of record. A
broker company's lien is unenforceable if mailing or service of the
copy of notice of lien does not occur at the time and in the manner
required by this section.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.56; P.L.116-2015, SEC.29.
IC 32-28-12.5-11
Foreclosure of lien; procedures; contents of complaint
Sec. 11. (a) The broker company claiming the lien shall, not later
than one (1) year after recording the notice of the lien, commence
proceedings to foreclose the lien. However, for future fees or
commissions payable over a period in excess of one (1) year from the
occurrence of a condition for which such future fees or commissions
are claimed, the commencement of the suit must be within one (1)
year of the latest date for which future fees or commissions are due.
A broker company's failure to commence proceedings within the time
prescribed by this subsection extinguishes the lien and a subsequent
notice of lien may not be given for the same claim, nor may that
claim be asserted in any other proceedings under this chapter.
(b) A broker company claiming a lien based upon an option or
other right to purchase or lease commercial real estate shall, not later
than one (1) year after recording the notice of the lien, commence
proceedings to foreclose the lien. A broker company's failure to
commence proceedings within the time prescribed by this subsection
extinguishes the lien and a subsequent notice of lien may not be given
for the same claim, nor may that claim be asserted in any other
proceedings under this chapter.
(c) The foreclosure of a lien recorded under this chapter shall be
conducted under the same rules and same procedures applicable to
the foreclosure of mortgages upon real estate. A complaint under this
section must contain:
(1) a brief statement of the written agreement, contract, or other
written instrument that is the basis for the lien;
(2) the date when the written agreement, contract, or other
written instrument was made;
(3) a description of the services performed by the broker
company;
(4) the amount due and unpaid for the services described in
subdivision (3);
Indiana Code 2015
(5) a description of the commercial real estate subject to the
notice of lien; and
(6) other facts reasonably necessary to describe the rights of the
parties.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.57; P.L.116-2015, SEC.30.
IC 32-28-12.5-12
Notice of lien; contents; signature; verification
Sec. 12. A notice of lien recorded under this chapter must:
(1) state:
(A) the name of the claimant;
(B) the name of the owner of the commercial real estate upon
which the lien is claimed;
(C) a legal description of the commercial real estate upon
which the lien is claimed;
(D) the amount for which the lien is claimed; and
(E) the license number of the broker company's license under
IC 25-34.1;
(2) contain a statement that the information contained in the
notice is true and accurate to the knowledge of the signatory;
(3) be signed by the managing broker responsible for the actions
of the broker company or by a person authorized to sign on
behalf of the managing broker; and
(4) be verified.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.58; P.L.116-2015, SEC.31.
IC 32-28-12.5-13
Release or satisfaction of memorandum or notice of lien; demand
to bring suit or file answer
Sec. 13. (a) If:
(1) a memorandum of lien or notice of lien has been recorded
with the office of the recorder of the appropriate county; and
(2) a condition occurs that would preclude the broker company
from receiving fees or commissions under the terms of the
written agreement, contract, or other written instrument upon
which the lien is based;
the broker company shall provide to the owner of record of the
commercial real estate, not later than ten (10) days after written
demand by the owner of record, a written release or satisfaction of the
memorandum of lien or notice of lien.
(b) Upon written demand:
(1) served by the owner, buyer, or tenant described in section 5
of this chapter, or the authorized agent of the owner, buyer, or
tenant described in section 5 of this chapter, on the broker
company claiming a lien under this chapter; and
(2) requiring the broker company to:
(A) bring a suit to enforce the lien; or
Indiana Code 2015
(B) file an answer in a pending suit;
the broker company shall bring a suit or file an answer not later than
thirty (30) days after service of the demand. If the broker company
does not bring a suit or file an answer within the time prescribed by
this subsection, the lien is extinguished. The service of a written
demand under this subsection may be made by registered or certified
mail, return receipt requested, or by personal service.
(c) If:
(1) a memorandum of lien or notice of lien under this chapter
has been filed with the office of the recorder and the fees or
commissions upon which the lien is based have been paid to the
broker company claiming the lien; or
(2) the broker company fails to institute a suit to enforce the lien
within the time prescribed by this chapter;
the broker company shall, not later than five (5) days after receipt of
a written demand from the owner, buyer, or tenant described in
section 5 of this chapter for a release or an acknowledgment of
satisfaction of the memorandum or lien, acknowledge satisfaction or
release of the memorandum or lien in writing.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.59; P.L.116-2015, SEC.32.
IC 32-28-12.5-14
Alternative dispute resolution; forum; judgment; stay of
foreclosure proceeding
Sec. 14. If the broker company and the party from whom fees or
commissions are claimed under this chapter agree to alternative
dispute resolution, any claim under this chapter must be heard and
resolved in the forum agreed to by the parties. The court before
which a lien foreclosure proceeding is brought under this chapter
retains jurisdiction to enter judgment on the award or other result
made or reached under alternative dispute resolution proceedings
with respect to all parties to the foreclosure. The broker company's
notice of lien remains of record and the foreclosure proceeding shall
be stayed during the pendency of the alternative dispute resolution
proceedings.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.60; P.L.116-2015, SEC.33.
IC 32-28-12.5-15
Cost of proceedings; apportionment
Sec. 15. The cost of proceedings brought under this chapter,
including reasonable attorney's fees, costs, and prejudgment interest
due to the prevailing party, shall be borne by the nonprevailing party.
If more than one (1) party is responsible for costs, fees, and
prejudgment interest, the costs, fees, and prejudgment interest shall
be equitably apportioned by the court or alternative dispute resolution
tribunal among the responsible parties.
As added by P.L.78-2006, SEC.1.
Indiana Code 2015
IC 32-28-12.5-16
Waiver of right to lien void
Sec. 16. Except for a waiver or release of a memorandum or lien
provided in consideration of payment of the fees or commissions
claimed by a broker company under this chapter, or except as
otherwise provided in section 13 of this chapter, any waiver of a
broker company's right to a lien on commercial property under this
chapter is void.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.61; P.L.116-2015, SEC.34.
IC 32-28-12.5-17
Prior recorded liens, mortgages, and encumbrances; priority
Sec. 17. Valid recorded liens, mortgages, and other encumbrances
that are recorded before a principal broker's notice of lien under this
chapter have priority over a principal broker's lien under this chapter.
Prior recorded liens, mortgages, and encumbrances that have priority
under this section include:
(1) a valid mechanic's lien that is recorded after a principal
broker's notice of lien under this chapter, but that relates back to
a date before the recording date of the principal broker's notice
of lien; and
(2) prior recorded liens securing revolving credit and future
advances of construction loans.
As added by P.L.78-2006, SEC.1.
IC 32-28-12.5-18
Lien on funds in escrow account
Sec. 18. If:
(1) a claim for a lien under this chapter has been filed with the
office of the recorder of the county in which commercial real
estate or any interest in commercial real estate is located; and
(2) an escrow account is established among:
(A) the one (1) or more parties allegedly responsible for
payment of the fees or commissions on which the lien is
based;
(B) the broker company that filed the lien; and
(C) an independent third party as escrowee;
from the proceeds of the conveyance, or from any other source
of funds, in an amount that is at least one hundred ten percent
(110%) of the amount of the lien claimed under this chapter;
the lien against the real estate is extinguished and becomes a lien on
the funds contained in the escrow account. The establishment of an
escrow account described in this section does not constitute cause for
any party to refuse to close the transaction.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.62; P.L.116-2015, SEC.35.
IC 32-28-12.5-19
Indiana Code 2015
Owner not providing required notice or certification at closing;
civil action; damages; defenses
Sec. 19. (a) If any party, including a broker company, buyer, or
buyer's mortgagee suffers a pecuniary loss as the result of an owner's
violation of the notice or certification provisions described in section
7 of this chapter, the party may bring a civil action against the owner
for the following:
(1) Actual damages.
(2) The costs of the action.
(3) Reasonable attorney's fees.
However, if the party establishes that the owner's violation of the
notice or certification provisions was fraudulent, a court may award
the party damages that do not exceed three (3) times actual damages.
(b) It is a defense to an action brought under this section that the
most recent address provided by the broker company to the owner in
the agreement, contract, or other written instrument, including a
written instrument described in section 5 of this chapter, was
incorrect, and as a result of the incorrect address, the principal broker
did not receive the owner's notice described in section 7(b) of this
chapter, and as a result the broker company failed to provide the
notice as required in section 7(c) of this chapter.
As added by P.L.78-2006, SEC.1. Amended by P.L.127-2012,
SEC.63; P.L.116-2015, SEC.36.
Indiana Code 2015
Disclaimer: These codes may not be the most recent version. Indiana may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
