Public Act 90-0338 of the 90th General Assembly
Public Act 90-0338
HB1345 Enrolled LRB9005078SMdv
AN ACT to amend the Commercial Real Estate Broker Lien
Act by changing Section 10.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Commercial Real Estate Broker Lien Act is
amended by changing Section 10 as follows:
(770 ILCS 15/10) (from Ch. 82, par. 660)
Sec. 10. Broker's lien.
(a) Any broker shall have a lien, upon commercial real
estate or any interest in that commercial real estate, in the
amount that the broker is due:
(1) under a written instrument signed by the owner
of an interest in the commercial real estate or the
owner's duly authorized agent; or
(2) (blank)
(3) under a written instrument signed by a
prospective buyer or prospective tenant or their
respective duly authorized agent as to the purchase,
lease, or other conveyance to the buyer or tenant of an
interest in the commercial real estate.
The lien shall be available to the broker named in the
instrument signed by the owner, buyer, or tenant and not to
an employee or independent contractor of the broker.
(b) The lien under this Act shall attach to the
commercial real estate, or any interest in the commercial
real estate, upon:
(1) the broker being otherwise entitled to a fee or
commission under a written instrument signed by the
owner, buyer, tenant, or their respective duly authorized
agent, as applicable; and
(2) except as provided in subsection (c), (d), or
(e) the broker recording a notice of lien in the
Recorder's Office, or the Office of the Registrar of
Titles, of the county in which the commercial real estate
is located prior to the actual conveyance or transfer of
the commercial real estate against which the broker is
claiming a lien. The lien shall attach as of the date of
the recording of the notice of lien and does not relate
back to the date of the written agreement.
(c) Except as provided in subsection (d), when payment
to a broker is due in installments, a portion of which is due
only after the conveyance or transfer of the commercial real
estate, any claim for lien for those payments due after the
transfer or conveyance may be recorded at any time subsequent
to the transfer or conveyance of the commercial real estate
and prior to the date on which the payment is due but shall
only be effective as a lien against the commercial real
estate to the extent monies are still owed to the transferor
by the transferee. A single claim for lien recorded prior to
transfer or conveyance of the commercial real estate claiming
all monies due under an installment payment agreement shall
not be valid or enforceable as it pertains to payments due
after the transfer or conveyance. The lien shall attach as
of the recording of the notice of lien and not relate back to
the date of the written agreement.
(d) In the case of a lease the claim for lien must be
recorded within 90 days after the tenant takes possession of
the leased premises unless written notice of the intended
signing of the lease is personally served on the broker
entitled to claim a lien at least 10 days prior to the date
of the intended signing of the lease in which case the claim
for lien must be recorded before the date indicated for the
signing of the lease in the notice served on the broker. The
lien shall attach as of the recording of the notice of lien
and not relate back to the date of the written agreement.
(e) If a broker has a written agreement with a
prospective buyer or tenant as provided for in paragraph (3)
of subsection (a) of this Section, then the lien shall attach
upon the prospective buyer or tenant purchasing, leasing, or
otherwise accepting a conveyance or transfer of the
commercial real estate and the recording of a notice of lien
by the broker in the Recorder's Office, or the Office of
Registrar of Titles, of the county in which the real
property, or any interest in the real property, is located
within 90 days after the purchase, lease, or other conveyance
or transfer to the buyer or tenant. The lien shall attach to
the interest purchased or leased by the buyer or tenant as of
the date of the recording of the notice of lien and does not
relate back to the date of the written agreement.
(f) The broker shall within 10 days of recording its
notice of lien mail a copy of the notice of lien to the owner
or record of the commercial real estate by registered or
certified mail, with return receipt requested, or personally
served on the owner of record or his agent. If the lien is
recorded within 10 days prior to closing, the broker is not
required to mail or personally serve a copy of the notice of
lien. Mailing of the copy of the notice of lien is effective
if mailed to the address of the commercial real estate that
is the subject of the notice of lien. Mailing of the copy of
the notice of claim for lien is effective when deposited in
the United States mailbox with postage prepaid. The broker's
lien shall be unenforceable if mailing of the copy of the
notice of lien recording does not occur at the time and in
the manner required by this Act.
(g) A broker may bring suit to enforce a lien in the
Circuit Court in the county where the property is located by
filing a complaint and sworn affidavit that the lien has been
recorded.
The person claiming a lien shall, unless the claim is
based upon an option to purchase the commercial real estate,
within 2 years after recording the lien, commence proceedings
by filing a complaint. Failure to commence proceedings within
2 years after recording the lien shall extinguish the lien.
No subsequent notice of lien may be given for the same claim
nor may that claim be asserted in any proceedings under this
Act.
A person claiming a lien based upon an option to purchase
shall, within 6 months after the transfer or conveyance of
the commercial real estate under the exercise of the option
to purchase, commence proceedings by filing a complaint.
Failure to commence proceedings within this time shall
extinguish the lien. No subsequent notice of lien may be
given for the same claim nor may that claim be asserted in
any proceedings under this Act.
A complaint under this Section shall contain a brief
statement of the contract or agreements 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 for a full understanding of
the rights of the parties. The plaintiff shall make all
interested parties, of whose interest the plaintiff is
notified or has knowledge, defendants to the action, and
shall issue summons and provide service as in other civil
actions. When any defendant resides or has gone out of the
State, or on inquiry cannot be found, or is concealed within
this State so that process cannot be served on that
defendant, the plaintiff shall cause a notice to be given to
that defendant, or cause a copy of the complaint to be served
upon that defendant, in the manner and upon the same
conditions as in other civil actions. Failure of the
plaintiff to provide proper summons or notice shall be
grounds for judgment against the plaintiff with prejudice.
All liens claimed under this Act shall be foreclosed as
provided for in the Illinois Mortgage Foreclosure Law.
(h) 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 signator. The notice of lien shall be
signed by the broker or by a person authorized to sign on
behalf of the broker and shall be verified.
(i) Whenever a claim for lien has been filed with the
County Recorder or Registrar of Titles and a condition occurs
that would preclude the broker from receiving compensation
under the terms of the broker's written agreement, the broker
shall provide to the owner of record, within 10 days
following demand by the owner of record, a written release or
satisfaction of the lien.
(j) Upon written demand of the owner, lienee, or other
authorized agent, served on the person claiming the lien
requiring suit to be commenced to enforce the lien or answer
to be filed in a pending suit, a suit shall be commenced or
answer filed within 30 days thereafter, or the lien shall be
extinguished. Service may be by registered or certified
mail, return receipt requested, or by personal service.
(k) Whenever a claim for lien has been filed with the
County Recorder or Registrar of Titles and is paid, or where
there is failure to institute a suit to enforce the lien
within the time provided by this Act, the broker shall
acknowledge satisfaction or release of the lien, in writing,
on written demand of the owner within 5 days after payment or
expiration of the time in which to file the lien.
(l) The cost of proceedings asserting or defending a
broker's claim of lien, including reasonable attorneys' fees,
costs, and prejudgment interests due to 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.
(Source: P.A. 87-779; 87-895; 88-354.)
Section 99. Effective date. This Act takes effect upon
becoming law.