guessed, the seller then gave the property back to its lender in a
deed in lieu of foreclosure, and the contract buyer quickly came
to terms with the lender. Meanwhile, my client’s lien, based
on the exclusive sale listing and the Owner/Buyer contract,
remained of record. We claimed the fee was earned when that
contract was procured and signed by both parties.
Instead of a battle where the lender would have had to actually
foreclose to clear title and erase the lien (which could have taken
several months), I received a call from the bank’s attorney, as
preparer of the Notice of Lien. The bank’s attorney recognized
me as attorney for the listing broker. The bank’s lawyer advised
that the contract price had been slightly reduced, but the bank
agreed to pay the broker’s commission at the same rate, on the
new price, so long as we provided a recordable release of
lien at closing. We happily complied with a letter to the
“When you are prepared to pay the sum of $[commission]
to [lien claimant] in accordance with the attached invoice,
you may deposit the enclosed Release of Lien into escrow
and record same after payment of the commission. Wiring
instructions are enclosed.”
We lawyers learn from reported case law, brokers learn from
their peers’ experiences. Teamwork often leads to better results.
It bears mention that one of my clients on the deal described
above is an SIOR.
Is there a lesson to be learned? Of course: know your rights,
and if you have broker lien rights, understand what that means
and how to use this powerful remedy to protect the fee that
you have earned, before a deed in lieu of foreclosure or a
foreclosure could eliminate your right to a fee.
As Coman & Anderson's Real Estate
Partner, Jim Hochman represents
many commercial real estate brokerage
firms, receivers, landlords, tenants,
and real estate investors by assisting in
commercial and residential real estate
transactions. Prior to joining Coman
& Anderson, Jim was Senior VP &
Senior Counsel for CBRE for 22 years,
representing CBRE in all aspects of
real estate services. Jim can be reached
ABOUT THE AUTHOR
Discover Industrial Leaders.
221 E 4th St., Suite 2600, Cincinnati, OH | 513.421.4884
Discover Cincinnati • Northern Kentucky Expertise.
• Sold 600,000 SF in Erlanger, KY for $25 million
• Leased 520,000 SF in Hebron, KY for $7 million
• Leased 112,000 SF in West Chester, OH for $4 million