PocketLaw | Georgia Code | Lien on Commercial Real Estate for Broker's

Lien on Commercial Real Estate for Broker's Compensation

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Any real estate broker who is not an employee or independent contractor of another real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and the landlord or seller or other client or customer, upon commercial real estate or any interest in commercial real estate:
1. Arising out of a listing agreement or any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate as evidenced by a writing signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement;
2. As to which the broker or broker's employees or independent contractors have provided licensed services that result in the procuring of a person or entity ready, willing, and able to enter and who actually enters into a purchase or lease or otherwise accepts a conveyance of the commercial real estate or any interest in the commercial real estate upon terms acceptable to the owner as evidenced by an agreement or conveyance signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement; or
3. When a broker having a written agreement with a prospective buyer or tenant to represent the buyer or tenant as to the purchase, lease, or other conveyance of commercial real estate becomes entitled to compensation and with written notice to the party whose property may be liened, if different from the parties to the agreement.
A lien shall attach to the commercial real estate, or any interest in commercial real estate as described in subsection (a) of this Code section, upon the broker's recording a notice of lien in the county land records in the office of the clerk of the superior court in the county in which the real property or interest in the real property is located.
When payment to a broker is due in one lump sum and not paid, the claim for lien must be recorded within 90 days after the tenant takes possession of the leased premises or the transaction procured by the broker is closed.
When payment to a broker is due in installments, all or a portion of which is due only after a conveyance of the commercial real estate, any claim for lien for those payments due after conveyance may be recorded at any time subsequent to the conveyance so long as the claim for lien is recorded within 90 days of the date the payment was due and not paid.
If a broker has a written agreement with a client as provided for in paragraph (3) of subsection (a) of this Code section, then the lien shall attach to the client's interest upon the client's purchasing, leasing, or otherwise accepting a conveyance of the commercial real estate and the recording of a notice of lien by the broker in the county land records, in the office of the clerk of the superior court of the county in which the real property or interest in the real property is located, within 90 days after the later of purchase, lease, or other conveyance or transfer to the buyer or tenant or the failure of the buyer or tenant to compensate the broker or to cause the broker to be compensated pursuant to its agreement.
If a broker has a written management agreement for an improved property, then the claim for lien must be recorded within 90 days of the termination of the agreement.
If a broker claims a lien based upon an option to purchase or lease, the lien must be filed within 90 days of the date the transaction for which a commission or other fee is due or within 90 days of the date the transaction for sale, lease, or other conveyance is closed, whichever is later.
The lien notice shall state the name of the claimant, the name of the owner, a description of the property upon which the lien is being claimed, the amount for which the lien is claimed, and the real estate license number of the broker. The notice of lien shall recite that the information contained in the notice is true and accurate to the knowledge of the signatory.The lien notice shall recite that the broker has disclosed to all parties that a lien might be claimed under this part.The notice of lien shall be signed by the broker or by a person expressly authorized to sign on behalf of the broker and shall be verified.
The broker shall mail a copy of the notice of lien to the owner of the commercial real estate by certified mail or statutory overnight delivery.The broker's lien shall be void and unenforceable if recording does not occur within the time and in the manner required by this Code section.
1. A broker may bring suit to enforce a lien in the superior court in the county where the property is located by filing a verified complaint and sworn affidavit that the lien has been recorded.Within one year after recording the lien, the broker claiming a lien shall commence proceedings by filing a complaint.Failure to commence proceedings within one year after recording the lien shall extinguish the lien. A broker claiming a lien based upon an option to purchase or lease shall, within six months after the transfer or conveyance of the commercial real estate under the exercise of the option, commence proceedings by filing a complaint. Failure to commence proceedings within this time shall extinguish the lien.
2. No subsequent notice of lien may be given for the same claim nor may that notice be asserted in any proceedings under this part.
3. A complaint under this subsection shall contain a brief statement of the contract or agreement on which the lien is founded, the date when the contract or agreement was made, a description of the services performed, the amount due and unpaid, a description of the property that is subject to the lien, and other facts necessary to state a claim for the payment of a commission, fee, or other compensation due the broker.The plaintiff shall make all interested parties, whose interest in the real estate is affected by the action, and of whom the plaintiff is notified or has knowledge, defendants to the action, and shall issue summons and provide service as in other civil actions.Complaint, answer, summons, service, and all other particulars of suit shall be made in accordance with Chapter 11 of Title 9, the "Georgia Civil Practice Act."All liens claimed under this part shall be foreclosed as provided for in Code Section 44-14-530.
The costs and expenses of all proceedings brought under this part, including reasonable attorney's fees actually incurred, costs, and prejudgment interests dueto the prevailing party, shall be borne by the nonprevailing party or parties.When more than one party is responsible for costs, fees, and prejudgment interests, the costs, fees, and prejudgment interests shall be equitably apportioned by the court among those responsible parties.

(Code 1981, §44-14-602, enacted by Ga. L. 1993, p. 1490, § 1; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence of subsection (i).

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Written listing agreement required.

- An advertising brochure entitled, PROPERTY INFORMATION, bearing the vendors' signatures and including the language -- "I want 15,000 net to me per [acre] base 83 approx" did not constitute a written listing agreement as required by O.C.G.A. § 44-14-602. Eva Pendley Realty, Inc. v. Bagley, 219 Ga. App. 203, 464 S.E.2d 850 (1995).

Lien is not limited to licensed services.

- A commercial real estate broker's lien under O.C.G.A. § 44-14-602 is not limited to licensed services as defined under O.C.G.A. § 43-40-1, so long as it otherwise complies with the requirements of the lien statute. Padgett v. City of Moultrie, 229 Ga. App. 500, 494 S.E.2d 299 (1997).

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