BRIEF BYTES: Question and Answer Forum

   The purpose is to answer frequently asked or unusual questions. Topics will range from real estate, business, litigation and trusts and estates. Your feedback is appreciated. Direct your comments to Cherisse Roy at croy@scott-harris.com

SUPERIORITY OF A LANDLORD'S LIEN

  A landlord has a lien on personal property of his tenant for unpaid rent. The landlord is not required to file or record a lien or any other instrument in the public records in order to perfect his lien. The landlord's lien and its priority are perfected when personal property belonging to the tenant is brought onto the leased premises. If the property brought onto the leased premises is subject to liens perfected prior to the time the property comes on the premises, then the landlord's lien will be inferior to the previously perfected liens.

  In Oaks Shopping Center, Inc. vs. Justice Marketing, Inc. the Court of Appeals was considering a dispute between the landlord and tenant. Mr. and Mrs. Justice were principals of Justice Marketing, Inc. and claimed that they had loaned money to their corporation to purchase certain personal property that was brought on to the leased premises. However, they took no steps under the Florida Uniform Commercial Code to perfect a security interest in the personal property to secure any debt owed them by the Corporation.

  During the term of the lease, the tenant vacated the leased premises taking personal property. The personal property was sold.

  The Court held that there was no action required to perfect the landlord's lien and therefore the landlord's lien had superiority over any unperfected lien on the personal property. Even if the claimed lien on the personal property was prior in time to the property being moved onto the leased premises, the lien on the personal property for monies loaned is a lien that must be "perfected" in accordance with the Uniform Commercial Code. If the lien does not become a lien under the Uniform Commercial Code until it is perfected and therefore the landlord's lien, which requires no act on the part of the landlord to perfect, was a valid lien prior to any lien claimed by Mr. and Mrs. Justice.

  Not only did the Court find that the landlord's was superior to the claim by Mr. and Mrs. Justice, but the Court found that in removing the property from the leased premises and selling the property, the tenant and Mr. and Mrs. Justice were in violation of Section 818.01 of the Florida Statutes. This provision of Florida Statute states that it is a first degree misdemeanor to sell to a third party property which is encumbered by a lien without the consent of the lienholder. Therefore, the Court has ruled that the sale by a tenant of property which would be subject to the landlord's lien without the consent of the landlord is a violation of this provision and is a first degree misdemeanor.

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