Florida Homestead Exemption - Hosted by Florida Homestead Services, LLC
c...@netside.net
hosted by Florida Homestead Services, LLC. Our purpose is to open the
door and provide information to Florida Homeowners on the benefits of
the Florida Homestead Exemption laws.
Florida Homestead Services, LLC is the newest and only Florida company
of it's kind that provides several beneficial asset protection services
to all Florida homeowners.
In the wake of record soaring lawsuits and litigation cases that have
been dramatically increasing from year to year and amplifying debt
typically placed against a Florida homeowner's primary residence,
these parasitic obstacles have come in the form of frivolous liens,
lawsuits and judgments, which have left homeowners with a feeling of
hopelessness & despair and have dropped them at the feet and at the
mercy of the courts through our judicial system.
FACTS: There are almost NO homes in the entire state of Florida that
are actually and legally protected under Florida Homestead asset
protection laws.
Most Florida homeowners are under a false pretense about homestead
protection. Just because you have "Homestead Exemption" does not
legally or automatically protect your residential property as
Homesteaded property. In fact, the Florida Dept. of Revenue has clearly
stated the Homestead Exemption is completely and legally different from
Designation of Homestead.
Do you realize that any person, any lawyer, any creditor, any company,
any government agency, any code enforcement board, or any entity can
place a lien against your Home at any time, for just about any reason?
Florida law states that you do not even have to be notified if a lien
or judgment is placed against your home! Most homeowners find out when
it is too late, when they go to re-finance or sell.
The homestead property tax exemption has a separate legal or statutory
basis and is completely different from claiming your homestead property
as your homestead property.
Contact us for more information at
http://www.floridahomesteadservices.com for more information.
We are here to help you.
John Sims - President
(Rules: Please feel free to contibute only fact, not fiction, untruth
or speculation to this group. Please, no vulgarity, bashing, or
illegal/unauthorized use.)
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avoids an attached lien on one's homestead. Does it?
If after 45 days, no lienholder action occurs following a F.S.222.01(2)
filing with the clerk's office, does that permanently detach the
attached judgment lien or is the detachment only good for 180 days,
and only for a homestead sale or mortgage refinance, such that someone
retaining their homestead after 180 days, would be subject again the
the judgment lien? Please explain.
Is there another Designation of Homestead mechanism besides F.S.
222.01(2)?
c...@netside.net
legal claim so to speak. In regards to sec (2) of 222.01, the property
is unencumbered for a period of 45 days after filing and up to 180
days. It is 'window' of sorts. Once you file the declaration, the
property is protected from foreclosure except for a mortgage,
construction or mechanics type lien. There is no other mechanism for
the setting apart or designation of the homestead under the statute.
Although the Constitution is 'self-executing', the legislature had to
specify how to invoke the right.
Most states' homestead provisions have been held not to be
self-executing, as where the constitution requires the legislature to
enact a statute to implement the provision, or where the constitutional
homestead exemption cannot be effective without the passage of a law
determining the amount of the exemption. This statement applies to
Florida's exemption. Illustration: A constitutional homestead
protection provision is not self-executing where it imposes upon the
state legislature the duty of setting up some statutory procedure by
which the owner of real estate may protect the property from sale or
execution of a portion of his property as his homestead.
The Florida Constitution on homestead asset protection imposes upon the
state legislature a duty of setting up some statutory procedure by
which the owner of real estate may protect the property from sale or
execution of a portion of his property as his homestead. The written
claim must be made per the statute or the homestead protection may be
ineffective against judgment creditors. The legislation requiring the
written claim to be made was enacted in order to prescribe a practice
to be used for the self-executing provision's enforcement, to provide a
convenient remedy for the protection of the property rights secured by
the Constitution or the determination thereof, and to place reasonable
safeguards around the exercise of the right.
Even if a constitutional provision states that it is self-executing,
some legislative action is usually necessary to effectuate its
purposes; but legislative authority to provide the method of exercising
a constitutional power exists only where the constitutional provisions
themselves do not provide the manner, means, and methods for executing
the powers therein conferred, such as Florida.
I hope this helps...
c...@netside.net
I hope this helps...
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Homestead actually is.
Let me try again:
Does Designation of Homestead permanently avoid an attached lien on
one's homestead if the property owner does not sell or refinance
between 45 and 180 days after filing? Yes or No.
fs222dot01subsection2
such as a code enforcement lien, besides what is specified in Florida
Statutes chapter 222?
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(foreclosure) on FL homestead property?
c...@netside.net
refinance or sell with no legal encumbrance against the claimed
homestead property. There is not another mechanism outside of the
Constitution (Art. 10 Sec. 4) and the ch. 222 statute.
c...@netside.net
created pursuant to the provisions of this part may be foreclosed on
real property which is a homestead under s. 4, Art. X of the State
Constitution. The money judgment provisions of this section shall not
apply to real property or personal property which is covered under s.
4(a), Art. X of the State Constitution." Also many controlling court
cases such as Demura v. Volusia County and Miskin v. City of Ft.
Lauderdale state that No such lien (code enforcement) exists against a
valid homestead...
c...@netside.net
I would contest the lien. 162.09 (3) in its entirety says that they
have the right to place a fine & liens but then they are not
enforceable against homestead...
Fla. Stat. 162.09 (3) - A certified copy of an order imposing a fine,
or a fine plus repair costs, may be recorded in the public records and
thereafter shall constitute a lien against the land on which the
violation exists and upon any other real or personal property owned by
the violator. Upon petition to the circuit court, such order shall be
enforceable in the same manner as a court judgment by the sheriffs of
this state, including execution and levy against the personal property
of the violator, but such order shall not be deemed to be a court
judgment except for enforcement purposes. A fine imposed pursuant to
this part shall continue to accrue until the violator comes into
compliance or until judgment is rendered in a suit filed pursuant to
this section, whichever occurs first. A lien arising from a fine
imposed pursuant to this section runs in favor of the local governing
body, and the local governing body may execute a satisfaction or
release of lien entered pursuant to this section. After 3 months from
the filing of any such lien which remains unpaid, the enforcement board
may authorize the local governing body attorney to foreclose on the
lien or to sue to recover a money judgment for the amount of the lien
plus accrued interest. No lien created pursuant to the provisions of
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In the refi scenario under F.S. 222.01(2):
If the homestead owner refinances the mortgage in the 45-180 day
window, at day 181, do the prior liens reattach in an inferior position
to the new financing, or do they not reattach?
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Also, do these cases hold that a code enforcement lien cannot ATTACH to
homestead property?
c...@netside.net
allows for no encumbrance in order to sell or re-finance.
c...@netside.net
Constitution itself goes much farther: No such lien exists as to such
homestead property. Since that is true, the mere recording of the order
against the Demuras cannot constitute a cloud against their homestead
property." and "the mere recording of the order in the instant case
does not constitute a cloud upon...homestead property."
**************************************************************
618 So. 2d 754, 18 Fla. Law W. D, 1122 DEMURA V. COUNTY OF VOLUSIA
JOSEPH A. DEMURA and DIANE L. DEMURA, Appellants,
vs.
COUNTY OF VOLUSIA, a political subdivision of the State of
Florida, Appellee.
CASE No. 92-2232
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
618 So. 2d 754, 18 Fla. Law W. D 1122
April 30, 1993, Filed
Appeal from the Circuit Court for Volusia County, C. McFerrin Smith,
III, Judge.
Rehearing Denied June 2, 1993.
COUNSEL
Howard L. Cauvel of Rano, Cauvel, Johnson & Ceely, P.A., DeLand, for
Appellants.
Steven J. Guardiano and T. I. Harris, Assistant Volusia County
Attorneys, DeLand, for Appellee.
JUDGES
COBB, HARRIS, GRIFFIN
AUTHOR: COBB
OPINION
COBB, J.
The appellants Joseph A. Demura and Diane L. Demura, appeal the
dismissal of their quiet title action against the County of Volusia.
The action sought to remove a cloud from the title of real property
which the Demuras claimed as homestead, the alleged cloud being a
judgment lien against the Demuras personally, claimed by Volusia County
pursuant to an "Order Imposing Fine-Lien." The fine had been
imposed by the County against the Demuras because of noncompliance with
an order of the County Code Enforcement Board.
The County moved to dismiss the Demuras' action on the basis that
there was no contention that it had sought to foreclose the lien. The
County argued that Article X, Section 4 of the Constitution of the
State of Florida does not extinguish liens, but merely prohibits
forced sale of property while it is homestead. Pursuant to the
County's motion, the trial court entered the following order of
dismissal:
ORDER GRANTING MOTION TO DISMISS
THIS CAUSE came on for hearing and argument of counsel for both
parties on the Motion to Dismiss of the Defendant, COUNTY OF VOLUSIA.
The Court finds the Defendant COUNTY has not sought to foreclose its
Code Enforcement Board lien on the homestead real property of the
Plaintiff, and accordingly, neither the statutory nor constitutional
prohibitions of Sec. 162.09(3), Florida Statutes, and Art. X, § 4(a),
Fla. Const., against foreclosure of liens on homestead real property
apply in the instant case. It is clear that the statutory and
constitutional prohibitions relate solely to foreclosure and not to the
creation of a lien.
The Court bases its finding upon the authority of Point East One
Condominium v. Point East Developers, Inc., 348 So.2d 32 (Fla. 3rd DCA
1977), as cited in 1985 Op. Att'y Gen. Fla. 85-26 (March 26, 1985),
and further finds that the lien in the instant case remains valid as to
the Plaintiff's homestead real property and to any purchasers of said
real property, who would be on notice as to the recorded Volusia County
Code Enforcement line. It is therefore
ORDERED AND ADJUDGED that the Defendant COUNTY OF VOLUSIA'S
Motion to Dismiss is hereby granted, and this case is hereby dismissed
with prejudice.
The statements of law in the order of dismissal are clearly contrary to
the constitutional law of Florida. Article X, Section 4 of the
Constitution of the State of Florida provides in pertinent part:
(a). There shall be exempt from forced sale under process of any
court, and no judgment, decree or execution shall be a lien thereon,
except for the payment of taxes and assessments thereon, obligations
contracted for the purchase, improvement or repair thereof, or
obligations contracted for house, field or other labor performed on the
realty, the following property owned by the natural person:
(1) a homestead, . . .; (Emphasis added).
Section 162, Florida Statutes (1991), governs local Code Enforcement
Boards, giving these boards the power to "impose administrative fines
and other noncriminal penalties to provide an equitable, expeditious,
effective and inexpensive method of enforcing any codes and ordinances
in force in counties and municipalities, where a pending or repeated
violation exists." § 162.02, Fla. Stat. (1991).
Section 162.09(3), Florida Statutes (1991), provides in pertinent part:
A certified copy of an order imposing a fine may be recorded in the
public records and thereafter shall constitute a lien against the land
on which the violation exists and upon any other real or personal
property owned by the violator. Upon petition to the circuit court,
such order may be enforced in the same manner as a court judgment by
the sheriffs of this state, including levy against personal property,
but such order shall not be deemed to be a court judgment except for
enforcement purposes. A fine imposed pursuant to this part shall
continue to accrue until the violator comes into compliance or until
judgment is rendered in a suit to foreclose on a lien filed pursuant to
this section, whichever comes first. After three months from the filing
of any such lien which remains unpaid, the enforcement board may
authorize the local governing body attorney to foreclose on the lien.
No lien created pursuant to the provision of this part may be
foreclosed on real property which is a homestead under s. 4 Art. X of
the State Constitution.
Although the statute merely provides that any lien created pursuant to
an administrative fine may not be foreclosed on real property which is
homestead, the Constitution itself goes much farther: No such lien
exists as to such homestead property. Since that is true, the mere
recording of the order against the Demuras cannot constitute a cloud
against their homestead property. It is arguable that the action which
the Demuras should have filed (assuming, arguendo, that any action at
all was necessary) was a declaratory judgment action seeking a
determination that the property at issue is, in fact, homestead
property at this time. It may very well be, however, that the homestead
status of the property is not in factual dispute.
We note that if the property is, indeed, homestead property, then the
Demuras may sell it and, contrary to the finding by the trial court,
there would be no lien on the property then in the hands of the
purchasers. On the other hand, if the Demuras failed to invest the
proceeds of that sale into another homestead within a reasonable period
of time, those proceeds could be reached by creditors such as the
County. See, e.g., Orange Brevard Plumbing and Heating Company v.
LaCroix, 137 So.2d 201, 206 (Fla. 1962). It is also true, of course,
that if the Demuras were to retain ownership of the property but
abandoned it as their homestead, the County's order against them
could then be enforced as a lien against the property.
Accordingly, we quash the order of dismissal entered by the trial judge
in this case because of its erroneous statements of law and the cloud
upon the title of the appellants' homestead, if in fact it is
homestead, created by the order of dismissal itself. We agree, however,
that a quiet title suit will not lie and the action below will be
subject to final dismissal absent an appropriate amendment of the cause
by the Demuras.
JUDGMENT QUASHED; CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.
HARRIS and GRIFFIN, JJ., concur.
DISPOSITION
JUDGMENT QUASHED; CASE REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
********************************************************************************************************************************************
MARTIN C. MISKIN, Appellant,
vs.
THE CITY OF FORT LAUDERDALE, FLORIDA, a municipal
corporation, Appellee.
CASE No. 94-3618.
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
661 So. 2d 415, 20 Fla. Law W. D 2345
October 18, 1995, Filed
Appeal from the Circuit Court for Broward County, Miette K. Burnstein,
Judge. L.T. CASE NO. 94-00427-21 CACE.
Released for Publication November 3, 1995.
COUNSEL
James P. Durkin, Pompano Beach, for appellant.
Dennis E. Lyles, City Attorney, and Lindsey A. Payne and Paula C.
Tighe, Assistant City Attorneys, Fort Lauderdale, for appellee.
JUDGES
GUNTHER, C.J., DELL and STEVENSON, JJ., concur.
AUTHOR: GUNTHER
OPINION
GUNTHER, C.J.
Appellant, Martin C. Miskin, plaintiff below (Miskin), appeals a final
summary judgment entered in favor of the appellee, the City of Fort
Lauderdale (the City). We affirm.
On September 19, 1991, Miskin was issued a notice of violation by the
City for two code violations pertaining to his homestead property
located in Fort Lauderdale. Subsequently, the code enforcement board
found in favor of the City and issued a final order requiring Miskin to
alleviate the problems by January 26, 1992, or be subject to a $ 150.00
fine per day each day the violations exist. Eventually, the City
recorded the order as a lien in the public records pursuant to section
162.09, Florida Statutes (1993).
Thereafter, on January 13, 1994, Miskin filed a declaratory judgment
action seeking a court decree that the code violation order did not
exist as a lien against his homestead property. The City then moved for
summary judgment which the trial court granted finding
[the] City's code enforcement board lien is not invalidated.
However, pursuant to section 4, Article X, Florida Constitution, as
long as Plaintiff's property maintains its homestead status and is
not abandoned by Plaintiff or is not sold with the proceeds of such
sale not being invested in another homestead property, [the] City may
not foreclose its code enforcement board lien against Plaintiff's
homestead property.
Chapter 162, Florida Statutes (1993), provides local code enforcement
boards with the authority to "impose administrative fines and other
noncriminal penalties to provide an equitable, expeditious, effective
and inexpensive method of enforcing any codes and ordinances in force
in counties and municipalities." § 162.02, Fla. Stat. (1993).
Specifically, section 162.09(3) provides:
A certified copy of an order imposing a fine may be recorded in the
public record and thereafter shall constitute a lien against the land
on which the violation exists and upon any other real or personal
property owned by the violator. Upon petition to the circuit court,
such order may be enforced in the same manner as a court judgment by
the sheriffs of this state, including levy against the personal
property, but such order shall not be deemed to be a court judgment
except for enforcement purposes ... No lien created pursuant to the
provisions of this part may be foreclosed on real property which is
homestead under s. 4, Art. X of the State Constitution.
Article X, Section 4 of the Florida Constitution provides:
(a) There shall be exempt from forced sale under process of any
court, and no judgment, decree or execution shall be a lien thereon,
except for the payment of taxes and assessments thereon, obligations
contracted for the purchase, improvement or repair thereof, or
obligations contracted for house, field or other labor performed on the
realty, the following property owned by a natural person:
(1) a homestead ....
Initially, it must be noted that the instant lien was created pursuant
to a code enforcement board order rather than pursuant to a
"judgment, decree or execution" which are prohibited by the
constitution. Art. X, § 4, Fla. Const. More importantly, contrary to
Miskin's assertion, the prohibition of the constitutional provision
is a prohibition against the use of process to force sale of homestead
property and does not invalidate the debt or lien. Milton v. Milton, 63
Fla. 533, 58 So. 718 (1912); Point East One Condominium Corp., Inc. v.
Point East Developers, Inc., 348 So.2d 32 (Fla. 3d DCA 1977); Daniels
v. Katz, 237 So.2d 58 (Fla. 3d DCA 1970). Thus, the constitutional
prohibition takes priority over the debt or lien and renders the same
unenforceable. Point East One Condominium Corp., Inc., 348 So.2d at 36;
Op. Att'y Gen. Fla. 85-26 (1985). The legislature recognized this
fact in determining that an enforcement board order should not be
considered a judgment except for enforcement proceedings. § 169.09(3),
Fla. Stat. (1993). Accordingly, the mere recording of the order in the
instant case does not constitute a cloud upon Miskin's homestead
property. Demura v. County of Volusia, 618 So.2d 754 (Fla. 5th DCA
1993). However, if Miskin's property somehow lost its homestead
status, the City would be able to enforce the order as a lien against
the property. Id.
Accordingly, the trial court correctly determined that the Florida
Constitution did not invalidate the lien created in the instant case
but merely rendered the same unenforceable. As such, the summary
judgment granted in favor of the City is affirmed.
AFFIRMED.
DELL and STEVENSON, JJ., concur.
DISPOSITION
AFFIRMED.
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c...@netside.net wrote:
> No the liens are not valid against the homestead property. The window
> allows for no encumbrance in order to sell or re-finance.
Please address this again:
The homestead owner executes the refi in the 45-180 day F.S. 222.01(2)
window.
Do the prior liens reattach to the homestead property in an inferior
position to this refinancing (the new financing takes the first lien
position) after the 180 days provided by F.S. 222.01(2), or do these
prior liens (liens such as code enforcement lien or judgment lien) not
reattach after F.S. 222.01(2)'s 180th day?
c...@netside.net
mortgage liens, construction and mechanic's liens.
c...@netside.net
Liens...
Number: AGO 85-26
Date: March 26, 1985
Subject: Unenforceable lien against homestead property
Mr. Thomas V. Infantino
City Attorney
City of Inverness
405A Courthouse Square
Inverness, Florida 32650
Dear Mr. Infantino:
This is in response to your request for an opinion on substantially the
following question:
WHETHER A LIEN CREATED PURSUANT TO s 162.09, F.S., IS ENFORCEABLE
AGAINST HOMESTEAD PROPERTY.
You state that the City of Inverness is considering the adoption of an
ordinance creating a code enforcement board pursuant to Ch. 162, F.S.,
and that questions have arisen as to the ability of the city through
its code enforcement board to enforce orders it may enter against a
parcel of property which enjoys the protective umbrella of the
homestead exemption where 'an administrative fine imposed by the Board
is uncollectable by conventional means such as execution and levy,
garnishment, attachment, etc.' You further state the question presented
as whether a lien imposed pursuant to s 162.09, F.S., 'rises to the
status of liens imposed for taxes or assessments, or . . . merely
place[s] the code enforcement board in the shoes of any other judgment
creditor.' This opinion is therefore expressly limited to a
consideration of the issue as framed by your inquiry and concerns only
the status of liens created pursuant to s 162.09, F.S.
Chapter 162, F.S., authorizes local governing bodies to create an
'administrative' code enforcement board 'to provide an equitable,
expeditious, effective, and inexpensive method of enforcing the
technical codes in force in counties and municipalities, including, but
not limited to, occupational license, fire, building, zoning, and sign
codes.' See, s 162.02, F.S. The code enforcement board is empowered to
hold hearings when a violation of an applicable code continues beyond
the time specified by the code inspector for correction. See, ss 162.06
and 162.07, F.S. The board further has the power to '[i]ssue orders
having the force of law to command whatever steps are necessary to
bring a violation into compliance.' Section 162.08, F.S. See also, AGO
84-55 (Chapter 162 authorizes creation of quasi-judicial administrative
boards for purposes of administrative enforcement procedures and
imposition of administrative fines); AGO 85-17. Section 162.09, F.S.,
provides as follows:
Administrative fines; liens.--The enforcement board, upon notification
by the code inspector that a previous order of the enforcement board
has not been complied with by the set time, may order the violator to
pay a fine not to exceed $250 for each day the violation continues past
the date set for compliance. A certified copy of an order imposing a
fine may be recorded in the public records and thereafter shall
constitute a lien against the land on which the violation exists or, if
the violator does not own the land, upon any other real or personal
property owned by the violator; and it may be enforced in the same
manner as a court judgment by the sheriffs of this state, including
levy against the personal property, but shall not be deemed to be a
court judgment except for enforcement purposes. After 1 year from the
filing of any such lien which remains unpaid, the enforcement board may
authorize the local governing body attorney to foreclose on the lien.
(e.s.)
Section 4(a), Art. X, State Const., provides as follows:
There shall be exempt from forced sale under process of any court, and
no judgment, decree or execution shall be a lien thereon, except for
the payment of taxes and assessments thereon, obligations contracted
for the purchase, improvement or repair thereof, or obligations
contracted for house, field or other labor performed on the realty, the
following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of
one hundred sixty acres of contiguous land and improvements thereon,
which shall not be reduced without the owner's consent by reason of
subsequent inclusion in a municipality; or if located within a
municipality, to the extent of one-half acre of contiguous land, upon
which the exemption shall be limited to the residence of the owner or
his family;
(2) personal property to the value of one thousand dollars.
(e.s.)
This exempting language is broad and comprehensive, clear and specific.
Graham v. Azar, 204 So.2d 193 (Fla. 1967). When considering this
section the courts have consistently held that this exemption provision
should be liberally construed, Graham v. Azar, supra; Olesky v.
Nicholas, 82 So.2d 510 (Fla. 1955), while exceptions to the exemptions
should be strictly construed. Graham v. Azar, supra; Wilhelm v.
Locklar, 35 So. 6 (Fla. 1903). The Florida constitutional exemption of
homesteads protects the homestead against every type of claim and
judgment except those specifically mentioned in the constitutional
provision itself. Olesky v. Nicholas, supra. But see, Jones v.
Carpenter, 106 So. 127 (Fla. 1925), holding that the homestead
exemption cannot be employed as a shield and defense after fraudulently
imposing on others where the facts showed embezzled funds were used to
make improvements to the embezzler's homestead property. Cf., Op. Atty.
Gen., August 7, 1940, Biennial Report of the Attorney General,
1939-1940, p. 521 (homestead property subject to forced sale in payment
of excise tax on whiskey, citing to statutory language establishing
such payment as an excise tax collectible as any excise tax imposed by
the state and noting that the constitutional homestead exemption was
never intended to be used as a cloak for such 'reprehensible
activities'). However, the prohibition of the constitutional provision
is a prohibition against the use of process to force a sale of
homestead property and does not invalidate the debt or the lien but
rather takes priority over the debt or lien. Milton v. Milton, 58 So.
718 (Fla. 1912); Point East One Condominium Corporation, Inc. v. Point
East Developers, Inc., 348 So.2d 32 (3 D.C.A. Fla., 1977).
Therefore, the issue as presented by your inquiry is whether a lien
created pursuant to s 162.09, F.S., is within a strict construction of
the constitutional provision excepting liens 'for the payment of taxes
and assessments' from the homestead exemption from forced sale. A 'tax'
is a forced burden or charge, an imposition or contribution assessed by
some reasonable rule of apportionment on persons or property. Atlantic
Coast Line R. Co. v. City of Lakeland, 115 So. 669 (Fla. 1927); Hiers
v. Mitchell, 116 So. 81 (Fla. 1928). A 'tax' has been further defined
as a charge on persons or property to raise money for public purposes,
or the payment of public expenses in support of governmental
activities. Smith v. Lummus, 6 So.2d 625 (Fla. 1942); Flood v. State ex
rel. Homeland Co., 117 So. 385 (Fla. 1928). A special or local
assessment for public improvements is a charge against particular
property with reference to the peculiar and specific benefit to such
property by reason of the improvements. Atlantic Coast Line R. Co. v.
City of Gainesville, 91 So. 118, 122 (Fla. 1922). An assessment should
not exceed the benefits accruing to the properties improved. City of
Treasure Island v. Strong, 215 So.2d 473 (Fla. 1968).
Section 162.09, F.S., authorizes a duly created code enforcement board
to 'order [a] violator to pay a fine not to exceed $250 for each day
the violation continues past the date set for compliance.' The title to
the section indicates that such fine is an 'administrative fine,' and
the statutory language itself states that an unpaid fine shall
constitute a lien enforceable 'in the same manner as a court judgment'
which may be foreclosed upon after one year from the filing of such
lien. The statute does not specify that such fine shall be collectible
as a tax, cf., Op. Atty. Gen., August 7, 1940, Biennial Report of the
Attorney General, 1939-1940, nor does it appear that such fine is an
imposition or contribution assessed by some reasonable rule of
apportionment on persons or property, or that such fine is a charge
against particular property with reference to any peculiar and specific
benefit to such property by reason of some public improvement.
Moreover, it would not appear that the imposition of such fine could be
said to fall within the rule of Jones v. Carpenter, supra, in which the
facts of the case led the court to conclude that the constitutional
exemption of homestead from forced sale could not be used as a shield
and defense after fraudulent imposition on creditors. Thus, in the
absence of any judicial precedent on this matter, I am of the view that
such fine is not a tax or assessment within the meaning of the
pertinent strictly construed exception to the otherwise liberally
construed constitutional rule of homestead exemption from forced sale,
that a lien created pursuant to s 162.09, F.S. is not enforceable
against homestead property by foreclosure of such lien where the owner
of such property successfully asserts the property's homestead status
as a defense to foreclosure or by way of petition to a court of
competent jurisdiction to enjoin a forced sale, see, ss 222.01, 222.02,
222.08 and 222.09, F.S., and that a code enforcement board stands in
the shoes of any other judgment creditor with respect to forcing a sale
of homestead property pursuant to foreclosure.
In sum, then, and unless and until judicially determined otherwise, it
is my opinion that a lien created by s 162.09, F.S., is not enforceable
against homestead property by foreclosure of such lien where the owner
of such property successfully asserts the property's homestead status
as a defense to foreclosure or by way of petition to a court of
competent jurisdiction to enjoin a forced sale, and that a code
enforcement board stands in the shoes of any other judgment creditor
with respect to forcing a sale of homestead property pursuant to
foreclosure, since a lien created pursuant to s 162.09 is neither a
'tax' nor an 'assessment' within the strictly construed exceptions to
the liberally construed constitutional rule of homestead exemption from
forced sale.
Sincerely,
Jim Smith
Attorney General
fs222dot01subsection2
c...@netside.net wrote:
> They do not reattach. The only liens that can attach a homestead are
> mortgage liens, construction and mechanic's liens.
So, if a judgment lien is on your property from, let's say ,an
unsecured credit card debt judgment, and you file an F.S. 222.01(2),
after 45 days, that judgment is permanently detached if you refinance
the mortgage?
c...@netside.net
from a sale can be used as living expenses before you purchase another
home, and as long as you invest the proceeds into another homestead,
that purchase money can't be seized to pay a creditor....Now, can we
help you? I'd be glad to take care of this for you.
fs222dot01subsection2
It would appear that the Demura court got it right and
the Miskin court got it wrong on this clause in the FL constitution:
Fl. Const. Art. X, Section 4, subsection a:
"and no judgment, decree or execution shall be a lien thereon
(1) a homestead
"
This ruling means that JunkDebtBuyer (the latest scourge against the
lesser fortunate)
default judgments (or SJs as well) and
Code Enforcement Orders, are not clouds on homestead property, at least
in the FL 5th DCA.
They can never constitute a lien on homestead property according to
this clause in the
Florida Constitution which the Demura court had the prescience to
recognize.
This is a huge precedent to protect the lesser fortunate homestead
owner, certainly at least
in 5th DCA.
c...@netside.net
rules otherwise, and it is appealed to the Supreme's for conflict of
opinions, it stands, and the fact is, it won't be over-ruled as it is
contrary to public policy...
fs222dot01subsection2
Excuse me, but the Demura court's decision was 1993. The Miskin court's
decision was 1995. It would seems that the Supreme Court has never
addressed the issue of lien attachment involving these two decisions,
even though, it is obvious that if they do, they would have to side
with the Demura court due to the plain language in the Constitution.
The Demura court says those non-enumerated liens don't attach. The
Miskin court ignores the distinction and just assumes they all attach
as liens, but only the enumerated liens can be levied upon.
How does the Demura decision apply to the entire state when the Miskin
decision is in conflict?
fs222dot01subsection2
instant case does not constitute a cloud upon Miskin's homestead
property. Demura v. County of Volusia, 618 So.2d 754 (Fla. 5th DCA
1993). "
Oops. I guess I did not read the Miskin case thoroughly.
So Miskin is based on Demura, so there is no conflict.
fs222dot01subsection2
Constitution did not invalidate the lien created in the instant case
but merely rendered the same unenforceable"
I confused myself because the Miskin opinion seems to be in conflict
with itself.
Just prior to this statement, the Miskin court based it's opinion on
the Demura decision and said no cloud could exist.
Then says it does, in effect, by saying that the lien is not invalid.
fs222dot01subsection2
because they do not conflict on the "no judgment shall be a lien
thereon .. (except the three enumerated types) ... of (1) a homestead"
clause, since Miskin is specific to a Code Enforcement Order, rather
than a corrupt Junk Debt Buyer judgment, for example.
c...@netside.net
c...@netside.net
mortgage liens, construction liens or mechanic's type liens.
c...@netside.net
fs222dot01subsection2
c...@netside.net wrote:
> You got it! No lien can attach to a claimed homestead except for
> mortgage liens, construction liens or mechanic's type liens.
Code Enforcement Orders and Junk Debt Buyer judgments are recorded in
the county of your homestead property.
You default on your mortgage and are foreclosed upon.
If you allow a courthouse sale to occur on your homestead property, do
these orders and judgments now become liens and attach to the
foreclosed property and are paid from the proceeds of the foreclosure
sale, if sufficient equity existed?
lugsa...@yahoo.com
my job and going through 3 hurricanes, I went through a Chapter 7. It
was finalized in February of this year. Things have not improved for
me. I decided two months ago to sell my property, only to find out
that although I had been released from some personal debts, there were
still judgments from those same debts against my property. My
bankruptcy lawyer was not much help, but I did find this approach
(222.01 Designation of homestead by owner before levy) to cleaning the
title of these liens. I filed this paperwork with the clerk of courts
on July 14th, and the 45 day period should be complete by the end of
the month. My question is : What is the Next Step? How do I, or do I
need to, provide any other declaration to clear these liens for the
sale? If you are a real estate attorney in the state of Florida,
please excuse me, but I can't possibly afford you.....