Ind. Code § 32-28-12.5-9

Current through P.L. 171-2024

Section 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

(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.

IC 32-28-12.5-9

Amended by P.L. 116-2015, SEC. 28, eff. 7/1/2015.

Amended by P.L. 127-2012, SEC. 55, eff. 7/1/2014.

As added by P.L. 78-2006, SEC.1. Amended by P.L. 1-2007, SEC.212.