The Illinois Commercial Real Estate Broker’s Lien Statute: A Top 10 List

The Illinois Commercial Real Estate Broker’s Lien Act, 770 ILCS 15/1 (the “Act”), provides a broker whose owed commission money with a strong remedy against a breaching property owner, buyer or tenant. Here are some of the Act’s key provisions:

1. What It Applies To:

“Commercial real estate.”  This is defined as any real estate in Illinois other than (i) real estate containing one to six residential units, (ii) real estate on which no buildings or structures are located, or (iii) real estate classified as farmland under the Property Tax Code.  770 ILCS 15/15

2. What It Doesn’t Apply To:

Real estate that isn’t “commercial”, including single family residential units like condominiums, townhouses, or homes in a subdivision when sold conveyed on a unit-by-unit basis.

3. Is Written Agreement Required? Yes.  770 ILCS 15/10.

4. When Does it Attach?:
The lien attaches when two things happen: (1) the broker becomes entitled to a fee or commission under a written instrument signed by the owner, buyer, tenant (or their agent); and (2) the broker records a notice of lien in the Recorder’s Office of the county where the commercial real estate is located.

5. Does the Lien Relate Back? No.   Unlike mechanics liens, the broker lien does not relate back to the date of contract between broker and owner (or buyer or tenant).  770 ILCS 15/10.

6.  Timing/When To Record:  In the case of a lease, the lien must be recorded within 90 days after the tenant takes possession of the premises,  Exception: if broker is given written notice of the planned lease signing at least 10 days before the intended signing date, the lien claim must be recorded before the lease signing date.

For a purchase, the lien must be recorded before the property is transferred to a buyer. The broker has 10 days from the recording date to mail a copy of the recorded lien to the owner of the property by registered or certified mail, with return receipt requested, or to personally serve the notice on the owner.  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. 770 ILCS 15/15.

7.  How to Enforce the Lien:  The broker enforces the lien by filing suit to foreclose it.  The broker must sue in the Circuit Court for the county where the property is located by filing a complaint and sworn affidavit that the lien has been recorded.  The lawsuit must be filed within 2 years after recording the lien.

8. Contents of the Lien Notice:  The lien notice shall state the name of the claimant, 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.

9.  Q: Can the Liening Broker Recover Her Attorneys’ Fees?  A: Yes. The losing party must pay the winning party’s attorneys’ fees, costs, and prejudgment interest.

10.  Q: What About Priority? A: Prior recorded liens and mortgages against the property shall have priority over a broker’s lien.  770 ILCS 15/15.  These prior recorded liens include mechanics liens recorded after the broker’s lien notice but which relates back to a date prior to the lien recording date and prior recorded liens securing revolving credit and future advances of construction loans as described in Section 15-1302 of the Mortgage Foreclosure Statute.

Bagel Shop Successor Tenant Hit For Rent Damages and Attorneys’ Fees in Commercial Lease Case – IL First Dist.

6945015869_a7cf0dd963_bThe First District affirmed a money judgment of about $150,000 (including $70,000 in attorneys’ fees) in a commercial lease dispute  in Alecta v. BAB Operations, Inc., 2015 IL App (1st) 132916-U.  An unpublished opinion, it’s useful for its vivid illustration of the importance of lease drafting clarity and an assigning tenant documenting its intent to not be responsible for post-assignment rent payments.

For over 15 years, the plaintiff landlord leased the property to various bagel shops.  The master lease was assigned six times over that time span. When the sixth assignee defaulted, the plaintiff sued multiple defendants including the third lease assignee – the defendant who ultimately got hit with the money judgment. (The other defendants either settled out or were defaulted.)

On appeal, the defendant (the third lease assignee) argued it was immunized from lease liability after it assigned the lease to a successor (the fourth assignee) several years earlier and that the trial court shouldn’t have awarded the landlord’s attorneys’ fees.

Affirming the money judgment, the First District provides a useful primer on contract interpretation rules applied in the commercial lease context.

– A court interprets a contract by looking to its plain language to discern the intent of the contracting parties;

– The court considers the contract in its totality and tries to harmonize each part of the contract;

– If the contract is unambiguous, the court interprets it without considering any outside evidence as to what the contract is supposed to mean;

– if the contract is ambiguous – meaning it’s susceptible to more than one meaning, the court can consider external evidence to try to resolve the ambiguity;

– a contract can be modified but the changes must materially alter the parties’ rights and duties before the change is regarded as a new contract or agreement;

– A contract can be assigned.  An assignment operates to transfer to the assignee all of the assignor’s right, title or interest in the thing assigned, and the assignee then stands in the shoes of the assignor;

– A lease is a type of contract that is governed by general contract law and can be assigned;

– It (a lease) creates privity of contract (which obligates a tenant to pay rent) and privity of estate (right to possession, basically) between the lessor and the lessee;

– Where a lease is assigned, but not assumed, there is privity of estate between the landlord and the assignee but not privity of contract.  This means the assignee can avoid further lease liability by vacating the premises or assigning to someone else;

– By contrast, where a lease is assumed (“assumption of the lease”), the party assuming the lease remains responsible to the landlord through the life of the lease even after the assuming party decamps the premises or assigns the lease;

¶¶ 40-61.

Here, the court found the assignment from the defendant to the fourth assignee ambiguous.  The assignment’s text was conflicting because at one point it said the defendant was released from further lease obligations while another section provided the assignor/defendant’s liability to the landlord remained intact.  Because the assignment language clashed on the defendant’s future (after the assignment) lease liability, the court heard trial testimony as to what the parties intended when they drafted the assignment and ultimately found for the landlord.

Afterwords:

This case serves as a good reminder of how a court interprets a written contract and handles textual ambiguity.  Any contractual ambiguity will be determined against the drafter of the contract.  Since the defendant is the one who drafted the assignment here, the court sided against it and found it liable for the lease breaches of the later assignees.

The case is also useful for its discussion of lease assignments versus lease assumptions and the different liability rules that flow from that dichotomy.  If the parties intent is to relieve an assignor from further liability, they should take pains to document that intent.