Section 38-22.5-106 - When lien attaches - effect of payment by installments - affirmative defense(1) The lien created by section 38-22.5-103 attaches to an interest in commercial real estate when all of the following conditions are met: (a) The real estate broker either: (I) Procures a person or entity who leases the property in accordance with the agreement; or(II) Has otherwise earned a fee or commission in accordance with the agreement;(b) The real estate broker serves a notice of intent to record a notice of lien upon the owner or owner's agent as provided in section 38-22.5-104;(c) The real estate broker makes a good faith attempt to obtain settlement through mediation as provided in section 38-22.5-105; and(d) At least thirty days after serving the owner with notice of intent to record a notice of lien, but not more than ninety days after the tenant takes possession of the leased property or ninety days after the compensation is due under the agreement, whichever is later, the real estate broker records a notice of the lien in the office of the clerk and recorder of the county in which the commercial real estate is located.(2) Notwithstanding paragraph (d) of subsection (1) of this section: (a) If payment is due in installments and a portion of the payment is due after the leasing of any interest in commercial real estate, a claim for a lien for only that portion may be recorded within ninety days after the tenant takes possession of the leased property or ninety days after the compensation is due under the agreement, whichever is later; and(b) The lien shall be effective as a lien against the commercial real estate only to the extent moneys are still owed to the real estate broker by the owner. Any claims for a lien for future installment payments shall only be recorded within ninety days after those installment payments become due in accordance with the agreement.(3) The lien attaches for purposes of this section when the claim for lien is recorded, and shall not relate back to the date of the agreement.(4) Notwithstanding any provision of this article to the contrary, it shall be an affirmative defense in an action to foreclose a lien pursuant to this article that the owner has paid any compensation owed to the listing broker in an amount sufficient to satisfy the contractual and legal obligations of the owner, including compensation to the tenant's broker.L. 2010: Entire article added, (HB 10-1288), ch. 179, p. 644, §1, effective August 11.