| 1 | A bill to be entitled |
| 2 | An act relating to government liens; amending s. 162.03, |
| 3 | F.S.; requiring certain fines or liens to be recorded in |
| 4 | order to constitute a property lien; authorizing counties |
| 5 | and municipalities to provide by ordinance that certain |
| 6 | property conditions are code violations subject to |
| 7 | enforcement actions; providing legislative findings; |
| 8 | preempting to the state laws relating to alienation of |
| 9 | property and foreclosure of mortgages and liens; |
| 10 | prohibiting local governments from imposing preconditions |
| 11 | or limitations on alienation of certain property or |
| 12 | foreclosure of certain mortgages or other liens; |
| 13 | prohibiting local governments from requiring lenders to |
| 14 | file or register certain properties; amending s. 162.06, |
| 15 | F.S.; specifying nonapplication of certain emergency |
| 16 | repair action requirements to certain enforcement |
| 17 | procedures; amending s. 162.07, F.S.; conforming a cross- |
| 18 | reference; amending s. 162.09, F.S.; specifying that |
| 19 | certain enforcement board actions do not create certain |
| 20 | obligations or liabilities for damages; requiring |
| 21 | ordinances assessing certain fines to include certain |
| 22 | criteria for certain purposes; authorizing code |
| 23 | enforcement boards to impose a special assessment against |
| 24 | property for certain purposes; providing special |
| 25 | assessment requirements; creating s. 162.091, F.S.; |
| 26 | providing authority and requirements for emergency repairs |
| 27 | to property by counties or municipalities under certain |
| 28 | circumstances; providing authority and requirements for |
| 29 | assessing costs of such repairs; specifying that making |
| 30 | such repairs does not create certain obligations or |
| 31 | liabilities for damages; specifying that absence of notice |
| 32 | does not invalidate certain actions; redesignating and |
| 33 | amending s. 162.09(3), F.S., as s. 162.092, F.S.; revising |
| 34 | authority and requirements for recording certain liens |
| 35 | against property for certain fines and costs; providing |
| 36 | for such liens to be liens upon personal property also; |
| 37 | specifying a form for such recorded liens; providing for |
| 38 | priority of such liens; revising requirements and |
| 39 | procedures for enforcement of such liens; providing for |
| 40 | preservation of such liens; providing limitations on fines |
| 41 | or penalties under such liens; revising enforcement |
| 42 | procedures for such liens; creating s. 162.093, F.S.; |
| 43 | authorizing certain persons to enter certain property to |
| 44 | make repairs; specifying nonapplication of trespass laws |
| 45 | under such circumstances; amending s. 162.10, F.S.; |
| 46 | revising provisions specifying the duration of liens; |
| 47 | amending s. 162.11, F.S.; authorizing appeal of recorded |
| 48 | liens; creating s. 162.14, F.S.; providing for |
| 49 | severability of certain provisions; providing a |
| 50 | legislative declaration; amending s. 222.01, F.S.; |
| 51 | revising authority, requirements, and procedures for |
| 52 | declaring and designating property as homestead property; |
| 53 | authorizing certain additional persons to make such |
| 54 | declarations; revising the form for a notice of homestead; |
| 55 | amending s. 695.01, F.S.; revising requirements and |
| 56 | procedures for recording conveyances to include |
| 57 | application to mortgages and liens; providing for validity |
| 58 | of liens for improvements, services, fines, and penalties |
| 59 | attaching to real property by certain entities; providing |
| 60 | requirements and procedures; providing for priority of |
| 61 | such liens; providing for superiority of certain |
| 62 | provisions; providing for assignment of liens; providing |
| 63 | for entitlement to receive an assignment of lien; |
| 64 | providing for enforcement; providing severability; |
| 65 | providing an effective date. |
| 66 |
|
| 67 | Be It Enacted by the Legislature of the State of Florida: |
| 68 |
|
| 69 | Section 1. Section 162.03, Florida Statutes, is amended to |
| 70 | read: |
| 71 | 162.03 Applicability.- |
| 72 | (1) Each county or municipality may by ordinance, at its |
| 73 | option, create or abolish by ordinance local government code |
| 74 | enforcement boards as provided in this chapter herein. |
| 75 | (2) A charter county, a noncharter county, or a |
| 76 | municipality may, by ordinance, adopt an alternate code |
| 77 | enforcement system that gives code enforcement boards or special |
| 78 | magistrates designated by the local governing body, or both, the |
| 79 | authority to hold hearings and assess fines against violators of |
| 80 | the respective county or municipal codes and ordinances. A |
| 81 | special magistrate shall have the same status as an enforcement |
| 82 | board under this chapter. References in this chapter to an |
| 83 | enforcement board, except in s. 162.05, shall include a special |
| 84 | magistrate if the context permits. Any fine or lien assessed by |
| 85 | such alternate code enforcement system must be recorded as |
| 86 | provided in s. 162.092 before such fine or lien constitutes a |
| 87 | lien on any real or personal property. |
| 88 | (3) In addition to any other matters addressed in its code |
| 89 | of ordinances, each county or municipality may by ordinance |
| 90 | provide that the failure to repair a property that falls into |
| 91 | disrepair, becomes uninhabitable, or creates a danger to public |
| 92 | health, safety, or welfare is in violation of its code of |
| 93 | ordinances and subject to enforcement action pursuant to this |
| 94 | chapter. |
| 95 | (4) The Legislature finds that alienation of property and |
| 96 | foreclosure of mortgages and liens are areas of the law that |
| 97 | have been preempted to the state by the laws of this state and |
| 98 | the Florida Rules of Court. A local government may not by |
| 99 | ordinance or otherwise impose any preconditions or limitations |
| 100 | on the alienation of property or the foreclosure of mortgages or |
| 101 | other liens, other than with regard to property, mortgages, or |
| 102 | liens owned or held by the local government. Any such ordinance |
| 103 | or other enactment is void and has no force or effect. |
| 104 | (5) A local government, including a local government with |
| 105 | home rule powers, may not require lenders to file or register |
| 106 | abandoned, vacant, or foreclosed properties or properties in |
| 107 | default. |
| 108 | Section 2. Subsection (4) of section 162.06, Florida |
| 109 | Statutes, is amended to read: |
| 110 | 162.06 Enforcement procedure.- |
| 111 | (4) If the code inspector has reason to believe a |
| 112 | violation or the condition causing the violation presents a |
| 113 | serious threat to the public health, safety, and welfare or if |
| 114 | the violation is irreparable or irreversible in nature, the code |
| 115 | inspector shall make a reasonable effort to notify the violator |
| 116 | and may immediately notify the enforcement board and request a |
| 117 | hearing. This subsection does not apply to any action taken |
| 118 | pursuant to s. 162.091. |
| 119 | Section 3. Subsection (2) of section 162.07, Florida |
| 120 | Statutes, is amended to read: |
| 121 | 162.07 Conduct of hearing.- |
| 122 | (2) Each case before an enforcement board shall be |
| 123 | presented by the local governing body attorney or by a member of |
| 124 | the administrative staff of the local governing body. If the |
| 125 | local governing body prevails in prosecuting a case before the |
| 126 | enforcement board, it shall be entitled to recover all costs |
| 127 | incurred in prosecuting the case before the board and such costs |
| 128 | may be included in the lien authorized under s. 162.092 |
| 129 | 162.09(3). |
| 130 | Section 4. Subsections (1) and (2) of section 162.09, |
| 131 | Florida Statutes, are amended to read: |
| 132 | 162.09 Administrative fines; costs of repair; liens.- |
| 133 | (1) An enforcement board, upon notification by the code |
| 134 | inspector that an order of the enforcement board has not been |
| 135 | complied with by the set time or upon finding that a repeat |
| 136 | violation has been committed, may order the violator to pay a |
| 137 | fine in an amount specified in this section for each day the |
| 138 | violation continues past the date set by the enforcement board |
| 139 | for compliance or, in the case of a repeat violation, for each |
| 140 | day the repeat violation continues, beginning with the date the |
| 141 | repeat violation is found to have occurred by the code |
| 142 | inspector. In addition, if the violation is a violation |
| 143 | described in s. 162.06(4), the enforcement board shall notify |
| 144 | the local governing body, which may make all reasonable repairs |
| 145 | which are required to bring the property into compliance and |
| 146 | charge the violator with the reasonable cost of the repairs |
| 147 | along with the fine assessed imposed pursuant to this section. |
| 148 | (2) The making of any such repairs does not create a |
| 149 | continuing obligation on the part of the local governing body to |
| 150 | make further repairs or to maintain the property and does not |
| 151 | create any liability against the local governing body, or any |
| 152 | person engaged by the local governing body to make such repairs, |
| 153 | for any damages to the property or for any special, punitive, or |
| 154 | consequential damages resulting from or arising in the course of |
| 155 | making such repairs if such repairs were completed in good |
| 156 | faith. If a finding of a violation or a repeat violation has |
| 157 | been made as provided in this part, a hearing shall not be |
| 158 | necessary for issuance of the order imposing the fine. If, after |
| 159 | due notice and hearing, a code enforcement board finds a |
| 160 | violation to be irreparable or irreversible in nature, it may |
| 161 | order the violator to pay a fine as specified in paragraph |
| 162 | (3)(2)(a). |
| 163 | (3)(2)(a) A fine assessed imposed pursuant to this section |
| 164 | shall not exceed $250 per day for a first violation and shall |
| 165 | not exceed $500 per day for a repeat violation, and, in |
| 166 | addition, may include all costs of repairs pursuant to |
| 167 | subsection (1) and s. 162.091. However, if a code enforcement |
| 168 | board finds the violation to be irreparable or irreversible in |
| 169 | nature, the board it may assess impose a fine not to exceed |
| 170 | $5,000 per violation. |
| 171 | (b) In determining the amount of the fine, if any, the |
| 172 | enforcement board shall consider the following factors: |
| 173 | 1. The gravity of the violation; |
| 174 | 2. Any actions taken by the violator to correct the |
| 175 | violation; and |
| 176 | 3. Any previous violations committed by the violator. |
| 177 | (c) An enforcement board may reduce a fine assessed |
| 178 | imposed pursuant to this section. |
| 179 | (d) A county or a municipality having a population equal |
| 180 | to or greater than 50,000 may adopt, by a vote of at least a |
| 181 | majority plus one of the entire governing body of the county or |
| 182 | municipality, an ordinance that gives code enforcement boards or |
| 183 | special magistrates, or both, authority to assess impose fines |
| 184 | in excess of the limits set forth in paragraph (a). Such fines |
| 185 | shall not exceed $1,000 per day per violation for a first |
| 186 | violation, $5,000 per day per violation for a repeat violation, |
| 187 | and up to $15,000 per violation if the code enforcement board or |
| 188 | special magistrate finds the violation to be irreparable or |
| 189 | irreversible in nature. Any ordinance assessing such fines must |
| 190 | include criteria to be considered by the enforcement board or |
| 191 | special magistrate in determining the amount of the fines, |
| 192 | including, but not limited to, those factors set forth in |
| 193 | paragraph (b). |
| 194 | (4)(a) In addition to any such fines assessed, a code |
| 195 | enforcement board or special magistrate may impose a special |
| 196 | assessment against the property on which the violation exists |
| 197 | additional fines to cover: |
| 198 | 1. All costs incurred by the local government in: |
| 199 | a. Making any emergency repairs pursuant to s. 162.091. |
| 200 | b. Making any repairs ordered by the local governing body |
| 201 | or the enforcement board pursuant to this section. |
| 202 | c. Identifying and notifying the parties to be notified. |
| 203 | d. Recording the copy of the lien and any releases |
| 204 | thereof. |
| 205 | 2. Reasonable charges for direct costs incurred in: |
| 206 | a. Enforcing the violation of codes giving rise to the |
| 207 | need for the repairs. |
| 208 | b. Making subsequent inspections to confirm repairs have |
| 209 | been completed enforcing its codes and all costs of repairs |
| 210 | pursuant to subsection (1). Any ordinance imposing such fines |
| 211 | shall include criteria to be considered by the code enforcement |
| 212 | board or special magistrate in determining the amount of the |
| 213 | fines, including, but not limited to, those factors set forth in |
| 214 | paragraph (b). |
| 215 | (b) The special assessment shall be set forth as an amount |
| 216 | separate from any fines assessed and shall specifically state |
| 217 | that the cost assessment portion constitutes a lien on such |
| 218 | property equal in priority to real property taxes as set forth |
| 219 | in s. 162.092. |
| 220 | Section 5. Section 162.091, Florida Statutes, is created |
| 221 | to read: |
| 222 | 162.091 Emergency repairs; costs of repairs.- |
| 223 | (1) A county or municipal official may institute any |
| 224 | emergency repairs necessary or appropriate to mitigate a |
| 225 | violation of the county's or municipality's code of ordinances |
| 226 | that presents a serious threat to the public health, safety, or |
| 227 | welfare if: |
| 228 | (a) The code enforcement board is not scheduled to meet |
| 229 | within the next 48 hours. |
| 230 | (b) The local governing body has delegated the authority |
| 231 | to institute emergency repairs to that official. |
| 232 | (c) The code inspector has made a reasonable effort to |
| 233 | notify the owner of record of the property on which the |
| 234 | violation exists and the holder or servicer of the first |
| 235 | mortgage on such property. |
| 236 | (2) The official instituting emergency repairs shall |
| 237 | advise the code enforcement board of all costs incurred in |
| 238 | making the emergency repairs and any costs of identifying and |
| 239 | notifying the parties required to be notified. The code |
| 240 | enforcement board shall review such costs and, if the board |
| 241 | deems the costs to be reasonable under the circumstances, cause |
| 242 | such costs to be assessed pursuant to s. 162.09. |
| 243 | (3) The making of any such repairs by the official does |
| 244 | not create a continuing obligation on the part of the local |
| 245 | governing body to make further repairs or to maintain the |
| 246 | property and does not create any liability against the local |
| 247 | governing body, or any person engaged by the local governing |
| 248 | body to make such repairs, for any damages to the property or |
| 249 | for any special, punitive, or consequential damages resulting |
| 250 | from or arising in the course of making such repairs. |
| 251 | (4) The failure or inability to notify any parties under |
| 252 | this section does not invalidate any action taken pursuant this |
| 253 | section or the assessment of costs incurred in connection with |
| 254 | such action. |
| 255 | Section 6. Subsection (3) of section 162.09, Florida |
| 256 | Statutes, is designated as section 162.092, Florida Statutes, |
| 257 | and amended to read: |
| 258 | 162.092 Liens.- |
| 259 | (1)(3) A lien for certified copy of an order imposing a |
| 260 | fine, for or a cost assessment alone, or for a fine plus a cost |
| 261 | assessment, which lien identifies the owner and contains a valid |
| 262 | legal description and the tax or parcel identification number |
| 263 | applicable as of the date of assessment repair costs, may be |
| 264 | recorded in the official public records as defined in s. 28.222 |
| 265 | and thereafter shall constitute a lien against the land on which |
| 266 | the violation exists and upon any other real or personal |
| 267 | property owned by the violator. Upon recording notice of the |
| 268 | lien in the central database of judgment liens on personal |
| 269 | property maintained by the Department of State in accordance |
| 270 | with ss. 55.201-55.209, such lien shall also constitute a lien |
| 271 | upon any personal property owned by the violator. The obligation |
| 272 | to pay any fines or assessments shall also be a personal |
| 273 | obligation of the owner of the property at the time the owner of |
| 274 | the property was notified of the violation and the fine, cost, |
| 275 | or fine plus cost was assessed. |
| 276 | (2) The recorded lien may be in substantially the |
| 277 | following form and must include the information and the warning |
| 278 | contained in the following form: |
| 279 | |
| 280 | WARNING! |
| 281 | THIS LEGAL DOCUMENT REFLECTS THAT A GOVERNMENT LIEN HAS BEEN |
| 282 | PLACED ON THE REAL PROPERTY LISTED HEREIN. THIS LIEN MAY REMAIN |
| 283 | VALID FOR TWENTY (20) YEARS FROM THE DATE OF RECORDING AND SHALL |
| 284 | EXPIRE AND BECOME VOID THEREAFTER UNLESS LEGAL PROCEEDINGS HAVE |
| 285 | BEEN COMMENCED TO FORECLOSE THIS LIEN AND A LIS PENDENS HAS BEEN |
| 286 | RECORDED IN THE OFFICIAL RECORDS. |
| 287 |
|
| 288 | GOVERNMENTAL LIEN |
| 289 | (SECTIONS 162.09, 162.091, & 162.092, FLORIDA STATUTES) |
| 290 | |
| 291 | STATE OF FLORIDA |
| 292 | COUNTY OF ______ |
| 293 | |
| 294 | Before me, the undersigned notary public, personally appeared |
| 295 | ...(Name/Title)..., who was duly sworn and says that the |
| 296 | ...(Governmental Entity)..., whose address is __________ , |
| 297 | assesses a lien, which is equal in priority to real property |
| 298 | taxes, against the below described real property pursuant to |
| 299 | ...(Ordinance/Statute Number)... for the following costs which |
| 300 | it has incurred: |
| 301 | 1. Emergency repairs pursuant to section 162.091, Florida |
| 302 | Statutes: $________ |
| 303 | 2. Repairs ordered by the local governing body or the |
| 304 | enforcement board: $________ |
| 305 | 3. Costs of identifying or notifying the |
| 306 | parties: $________ |
| 307 | 4. Cost of recording the copy of the lien and proposed |
| 308 | releases: $________ |
| 309 | 5. Direct cost of enforcing the violation of codes giving |
| 310 | rise to the need for the repair: $________ |
| 311 | 6. Direct cost of making subsequent inspections to confirm |
| 312 | repairs have been made: $________ |
| 313 | TOTAL: $________ |
| 314 | |
| 315 | The total amount shall constitute a lien on the owner's |
| 316 | property, notwithstanding any homestead protections provided by |
| 317 | Article X, Section 4(a) of the State Constitution. |
| 318 | |
| 319 | The following fine pursuant to ...(Ordinance/Statute Number)... |
| 320 | shall constitute a lien on the owner's property subject to the |
| 321 | provisions of Article X, Section 4(a) of the State Constitution |
| 322 | on the following described real property in __________ County, |
| 323 | Florida: |
| 324 | First Violation: $ per day commencing ...(Date)... |
| 325 | Repeat Violation: $ per day commencing ...(Date)... |
| 326 | Property Legal Description: |
| 327 |
|
| 328 | [Must include full legal description of property, not |
| 329 | abbreviated description from tax rolls] |
| 330 |
|
| 331 | Parcel I.D. Number: |
| 332 | owned by ...(Name of Owner)... whose address is shown as |
| 333 | __________ in the tax rolls of __________ County, Florida. A |
| 334 | copy of the notification of a violation of ...(Ordinance/Statute |
| 335 | Number)... was ...(Sent by Certified Mail/Posted)... on |
| 336 | ...(Date).... |
| 337 | |
| 338 | Estoppel letters, additional information regarding this lien, |
| 339 | and satisfactions of the lien are available by contacting |
| 340 | ...(Name/Title)... at ...(Address)..., telephone number: |
| 341 | ...(Telephone Number).... |
| 342 | ...(Governmental Entity)... |
| 343 | By: ...(Name/Title)... |
| 344 | Sworn to (or affirmed) and subscribed before me this _____ day |
| 345 | of __________, 20____ by ...(Name of Notary Public).... |
| 346 | |
| 347 | (SEAL) |
| 348 | _______________________________________ |
| 349 | ...(Signature of Notary Public)... |
| 350 | Personally Known ______ OR Produced Identification ______ |
| 351 | Type of Identification Produced _________________________ |
| 352 |
|
| 353 | (3) The recorded lien for a cost assessment pursuant to s. |
| 354 | 162.09(4) or s. 162.091 constitutes a lien on such property |
| 355 | equal in priority to real property taxes and is an obligation |
| 356 | contracted for the improvement or repair of the property and an |
| 357 | assessment within the meaning of s. 4, Art. X of the State |
| 358 | Constitution. The cost assessment attaches and may be enforced |
| 359 | without regard to whether the land on which the violation exists |
| 360 | is the homestead of the owner of the property. Such lien is not |
| 361 | eliminated by the foreclosure of any mortgage or lien |
| 362 | subordinate to real property taxes and may not be prevented from |
| 363 | attaching under the lis pendens provisions of s. 48.23. |
| 364 | (4) A lien for any fine or penalty assessed pursuant to |
| 365 | this chapter, and any accrual of interest on such fine or |
| 366 | penalty, takes priority only as of the recordation of the lien, |
| 367 | may be eliminated in a foreclosure of superior liens or |
| 368 | mortgages, and is subject to the lis pendens provisions of s. |
| 369 | 48.23. The elimination of a lien for fines by foreclosure does |
| 370 | not preclude a code enforcement board from assessing future |
| 371 | violations against a subsequent owner of the property as to any |
| 372 | uncorrected violations. |
| 373 | (5) Upon petition to the circuit court, the lien such |
| 374 | order shall be enforceable in the same manner as a court |
| 375 | judgment by the sheriffs of this state, including execution and |
| 376 | levy against the property on which the violation exists or other |
| 377 | real or personal property of the violator, but the lien such |
| 378 | order shall not be deemed to be a court judgment except for |
| 379 | enforcement purposes. A fine assessed imposed pursuant to this |
| 380 | part shall continue to accrue until the violator comes into |
| 381 | compliance or until judgment is rendered in a suit filed |
| 382 | pursuant to this section, whichever occurs first. A lien arising |
| 383 | from a fine assessed imposed pursuant to this section runs in |
| 384 | favor of the local governing body. Within 30 days after payment, |
| 385 | and the local governing body or authorized officer of the local |
| 386 | governing body shall may execute and cause to be recorded a |
| 387 | satisfaction or release of lien in each recording office where |
| 388 | such lien was recorded entered pursuant to this section. After 3 |
| 389 | months from the filing of any such lien which remains unpaid, |
| 390 | the enforcement board may authorize the local governing body |
| 391 | attorney to foreclose on the lien or to sue to recover a money |
| 392 | judgment for the amount of the lien plus accrued interest. A No |
| 393 | lien for a fine assessed created pursuant to s. 162.09(3) |
| 394 | not attach to or the provisions of this part may be foreclosed |
| 395 | on real property which is a homestead under s. 4, Art. X of the |
| 396 | State Constitution. The money judgment provisions of this |
| 397 | section shall not apply to real property or personal property |
| 398 | which is covered under s. 4(a), Art. X of the State |
| 399 | Constitution. |
| 400 | Section 7. Section 162.093, Florida Statutes, is created |
| 401 | to read: |
| 402 | 162.093 Trespass.-A code inspector, any government |
| 403 | official delegated authority to make emergency repairs, and any |
| 404 | municipal or county employee or other person engaged by the |
| 405 | local government to make repairs pursuant to ss. 162.09 and |
| 406 | 162.091 may enter privately owned properties, including, but not |
| 407 | limited to, fenced yards, vacant structures, and pool |
| 408 | enclosures, for purposes of making inspections and repairs as |
| 409 | authorized by this chapter. As provided in s. 810.12(5), laws |
| 410 | relating to trespass do not apply to such persons while |
| 411 | performing services within the scope of their employment. |
| 412 | Section 8. Section 162.10, Florida Statutes, is amended to |
| 413 | read: |
| 414 | 162.10 Duration of lien.-A No lien provided under this |
| 415 | chapter may not the Local Government Code Enforcement Boards Act |
| 416 | shall continue for a period longer than 20 years after the lien |
| 417 | certified copy of an order imposing a fine has been recorded, |
| 418 | unless within that time an action is commenced pursuant to s. |
| 419 | 162.092 162.09(3) in a court of competent jurisdiction and a lis |
| 420 | pendens is filed in the official records. In an action to |
| 421 | foreclose on a lien or for a money judgment, the prevailing |
| 422 | party is entitled to recover all costs, including a reasonable |
| 423 | attorney's fee, that it incurs in the action. The local |
| 424 | governing body shall be entitled to collect all costs incurred |
| 425 | in recording and satisfying a valid lien. The continuation of |
| 426 | the lien effected by the commencement of the action shall not be |
| 427 | good against creditors or subsequent purchasers for valuable |
| 428 | consideration without notice, unless a notice of lis pendens is |
| 429 | recorded. |
| 430 | Section 9. Section 162.11, Florida Statutes, is amended to |
| 431 | read: |
| 432 | 162.11 Appeals.-An aggrieved party, including the local |
| 433 | governing body, may appeal a recorded lien or a final |
| 434 | administrative order of an enforcement board to the circuit |
| 435 | court. Such an appeal shall not be a hearing de novo but shall |
| 436 | be limited to appellate review of the record created before the |
| 437 | enforcement board. An appeal shall be filed within 30 days after |
| 438 | of the recording of the lien or execution of the order to be |
| 439 | appealed. |
| 440 | Section 10. Section 162.14, Florida Statutes, is created |
| 441 | to read: |
| 442 | 162.14 Severability; legislative declaration.-If any |
| 443 | provision of this chapter is held or declared to be |
| 444 | unconstitutional, illegal, invalid, inoperative, ineffective, |
| 445 | inapplicable, or void, such holding or declaration does not |
| 446 | affect the other provisions of this chapter or the application |
| 447 | of the other provisions of this chapter to any other |
| 448 | circumstance. The Legislature declares that any provision of |
| 449 | this chapter held as such did not induce the enactment of the |
| 450 | chapter and that without the inclusion of the provisions of this |
| 451 | chapter held as such, the Legislature would have enacted the |
| 452 | other provisions of this chapter. |
| 453 | Section 11. Section 222.01, Florida Statutes, is amended |
| 454 | to read: |
| 455 | 222.01 Designation of homestead by owner before levy.- |
| 456 | (1) Whenever any natural person residing in this state |
| 457 | desires to avail himself or herself of the benefit of the |
| 458 | provisions of the constitution and laws exempting property as a |
| 459 | homestead from forced sale under any process of law, he or she |
| 460 | may make a statement, in writing, containing a description of |
| 461 | the real property, mobile home, or modular home claimed to be |
| 462 | exempt and declaring that the real property, mobile home, or |
| 463 | modular home is the homestead of the party in whose behalf such |
| 464 | claim is being made. If relevant, such a statement may also be |
| 465 | made by a subsequent owner, lienholder, or successor in interest |
| 466 | of such property to a party who could have claimed the real |
| 467 | property, mobile home, or modular home was homestead through the |
| 468 | date his or her interest in the property was relinquished or |
| 469 | conveyed. Such statement shall be signed by the person making it |
| 470 | and shall be recorded in the circuit court. |
| 471 | (2) When a certified copy of a judgment under has been |
| 472 | filed in the public records of a county pursuant to chapter 55, |
| 473 | a code enforcement lien under chapter 162 other than a cost |
| 474 | assessment lien under s. 162.09(4), or a lien for any other |
| 475 | purpose imposed by a court or governmental body exists or has |
| 476 | been filed in the official records of a county, a person who is |
| 477 | entitled to the benefit of the provisions of the State |
| 478 | Constitution exempting real property as homestead, or a |
| 479 | lienholder, subsequent owner, or successor in interest of such |
| 480 | property, and who has a contract to sell or a commitment from a |
| 481 | lender for a mortgage on the homestead may file a notice of |
| 482 | homestead in the official public records of the county in which |
| 483 | the homestead property is located in substantially the following |
| 484 | form, with allowance for modifications if the notice is being |
| 485 | given by a lienholder, subsequent owner, or successor in |
| 486 | interest of such property: |
| 487 |
|
| 488 | NOTICE OF HOMESTEAD |
| 489 |
|
| 490 | To:...(Name and address of judgment creditor or lienholder as |
| 491 | shown on recorded judgment or lien and name and address of any |
| 492 | other person shown in the recorded judgment or lien to receive a |
| 493 | copy of the Notice of Homestead).... |
| 494 |
|
| 495 | You are notified that the undersigned claims as homestead exempt |
| 496 | from levy and execution under Section 4, Article X of the State |
| 497 | Constitution, the following described property: |
| 498 |
|
| 499 | ...(Legal description)... |
| 500 |
|
| 501 | The undersigned certifies, under oath, that he or she has |
| 502 | applied for and received the homestead tax exemption as to the |
| 503 | above-described property, that _____ is the tax identification |
| 504 | parcel number of this property, and that the undersigned has |
| 505 | resided on this property continuously and uninterruptedly from |
| 506 | ...(date)... to the date of this Notice of Homestead. Further, |
| 507 | the undersigned will either convey or mortgage the above- |
| 508 | described property pursuant to the following: |
| 509 |
|
| 510 | ...(Describe the contract of sale or loan commitment by date, |
| 511 | names of parties, date of anticipated closing, and amount. The |
| 512 | name, address, and telephone number of the person conducting the |
| 513 | anticipated closing must be set forth.)... |
| 514 |
|
| 515 | The undersigned also certifies, under oath, that the lien or |
| 516 | judgment lien filed by you on ...(date)... and recorded in |
| 517 | Official Records Book _____, Page _____, of the Public Records |
| 518 | of __________ County, Florida, does not constitute a valid lien |
| 519 | on the described property. |
| 520 |
|
| 521 | YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., |
| 522 | FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS |
| 523 | NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF |
| 524 | __________ COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO |
| 525 | DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT |
| 526 | PROPERTY OR TO FORECLOSE YOUR LIEN OR JUDGMENT LIEN ON THE |
| 527 | PROPERTY AND RECORD A LIS PENDENS IN THE OFFICIAL PUBLIC RECORDS |
| 528 | OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO |
| 529 | ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS |
| 530 | AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN |
| 531 | COMMITMENT TO TAKE FREE AND CLEAR OF ANY LIEN OR JUDGMENT LIEN |
| 532 | YOU MAY HAVE ON THE PROPERTY. |
| 533 |
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| 534 | This _____ day of _______________, 2_____. |
| 535 | ______________________________ |
| 536 | ...(Signature of Owner)... |
| 537 | ______________________________ |
| 538 | ...(Printed Name of Owner)... |
| 539 | ______________________________ |
| 540 | ...(Owner's Address)... |
| 541 |
|
| 542 | Sworn to and subscribed before me by |
| 543 | ______________________________ who is personally known to me or |
| 544 | produced ______________________________ as identification, this |
| 545 | _____ day of _______________, 2_____. |
| 546 | ______________________________ |
| 547 | Notary Public |
| 548 | (3) The clerk shall mail a copy of the notice of homestead |
| 549 | to the judgment lienor or lienholder, by certified mail, return |
| 550 | receipt requested, at the address shown in the most recent |
| 551 | recorded lien, judgment, or accompanying affidavit, and to any |
| 552 | other person designated in the most recent recorded lien, |
| 553 | judgment, or accompanying affidavit to receive the notice of |
| 554 | homestead, and shall certify to such service on the face of such |
| 555 | notice and record the notice. Notwithstanding the use of |
| 556 | certified mail, return receipt requested, service shall be |
| 557 | deemed complete upon mailing. |
| 558 | (4) A lien pursuant to chapter 55 of any lienor upon whom |
| 559 | such notice is served, who fails to institute an action for a |
| 560 | declaratory judgment to determine the constitutional homestead |
| 561 | status of the property described in the notice of homestead or |
| 562 | to file an action to foreclose the lien or judgment lien, |
| 563 | together with the filing of a lis pendens in the official public |
| 564 | records of the county in which the homestead is located, within |
| 565 | 45 days after service of such notice shall be deemed as not |
| 566 | attaching to the property by virtue of its status as homestead |
| 567 | property: |
| 568 | (a) As to the interest of any buyer or lender, or his or |
| 569 | her successors or assigns, who takes under the contract of sale |
| 570 | or loan commitment described above within 180 days after the |
| 571 | filing in the official public records of the notice of |
| 572 | homestead; or |
| 573 | (b) As to the interest of any subsequent owner, |
| 574 | lienholder, or successor in interest of the property who filed a |
| 575 | notice under subsection (2). |
| 576 |
|
| 577 | This subsection shall not act to prohibit a lien from attaching |
| 578 | to the real property described in the notice of homestead at |
| 579 | such time as the property loses its homestead status. |
| 580 | (5) As provided in s. 4, Art. X of the State Constitution, |
| 581 | this subsection shall not apply to: |
| 582 | (a) Liens and judgments for the payment of taxes and |
| 583 | assessments on real property. |
| 584 | (b) Liens and judgments for obligations contracted for the |
| 585 | purchase of real property. |
| 586 | (c) Liens and judgments for labor, services, or materials |
| 587 | furnished to repair or improve real property. |
| 588 | (d) Liens and judgments for other obligations contracted |
| 589 | for house, field, or other labor performed on real property. |
| 590 | Section 12. Section 695.01, Florida Statutes, is amended |
| 591 | to read: |
| 592 | 695.01 Conveyances, mortgages, and liens to be recorded.- |
| 593 | (1) A No conveyance, transfer, or mortgage of real |
| 594 | property, or of any interest in such property therein, and nor |
| 595 | any lease of real property for a term of 1 year or longer, is |
| 596 | not valid or shall be good and effectual in law or equity |
| 597 | against creditors or subsequent purchasers for a valuable |
| 598 | consideration and without notice, unless the conveyance, |
| 599 | transfer, mortgage, interest, or lease is same be recorded in |
| 600 | the official records, as defined in s. 28.222, of the county in |
| 601 | which the property is located, and according to law; nor shall |
| 602 | any such instrument made or executed by virtue of any power of |
| 603 | attorney is not valid or be good or effectual in law or in |
| 604 | equity against creditors or subsequent purchasers for a valuable |
| 605 | consideration and without notice unless the power of attorney is |
| 606 | be recorded in the official records of the county in which the |
| 607 | property is located before the accruing of the right of such |
| 608 | creditor or subsequent purchaser. Grantees by quitclaim may not |
| 609 | be denied the status of a bona fide purchaser without notice |
| 610 | within the meaning of the recording acts solely based upon |
| 611 | having received title by a quitclaim deed. |
| 612 | (2) Liens for improvements, services, fines, or penalties |
| 613 | attaching to real property by any governmental entity, or any |
| 614 | other quasi-governmental entity authorized to assess, impose, or |
| 615 | create such liens, except liens for taxes, special assessments |
| 616 | levied and collected under the uniform method described in s. |
| 617 | 197.3632, and utility services, are valid and effectual against |
| 618 | creditors and subsequent purchasers for a valuable consideration |
| 619 | only upon being recorded in the official records of the county |
| 620 | in which the property is located and containing the name of the |
| 621 | owner of record, a legally sufficient legal description of the |
| 622 | property, and the tax or parcel identification number applicable |
| 623 | to the property as of the date of assessment. The priority of a |
| 624 | lien described in this subsection is based upon its order of |
| 625 | recordation unless the recorded notice of such lien clearly |
| 626 | states a higher priority and includes a citation to the statute |
| 627 | or ordinance authorizing such higher priority. This section |
| 628 | supersedes any conflicting home rule power provisions and any |
| 629 | provisions granting authority under any act, ordinance, or order |
| 630 | creating any governmental or quasi-governmental entity. |
| 631 | (3) Liens assessed, imposed, or created by any |
| 632 | governmental or quasi-governmental entity may be assigned by |
| 633 | assignment recorded in the official records of the county in |
| 634 | which the property is located. Any person other than the present |
| 635 | owner of the property involved who pays any such unsatisfied |
| 636 | lien is entitled to receive an assignment of the lien and shall |
| 637 | be subrogated to the rights of the governmental or quasi- |
| 638 | governmental entity with respect to the enforcement of such |
| 639 | lien, as permitted by law. Grantees by quitclaim, heretofore or |
| 640 | hereafter made, shall be deemed and held to be bona fide |
| 641 | purchasers without notice within the meaning of the recording |
| 642 | acts. |
| 643 | Section 13. If any provision of this act or the |
| 644 | application thereof to any person or circumstance is held |
| 645 | invalid, the invalidity shall not affect other provisions or |
| 646 | applications of the act which can be given effect without the |
| 647 | invalid provision or application, and to this end the provisions |
| 648 | of this act are declared severable. |
| 649 | Section 14. This act shall take effect July 1, 2010. |