Homestead Sweet Homestead? How Code Enforcement Liens Should Be Treated Under the Constitutional Homestead Exemption

Cherry picking is when someone only looks at information that supports their opinion and ignores other information that doesn’t. This happens a lot in the legal field, especially when it comes to homestead property law. People will often only focus on certain court cases that seem to say code enforcement liens can’t be put on homestead property, but if you look closer, you’ll see that’s not always the case. The law actually allows for liens to be put on homestead property in certain situations. So, it’s important to look at all the information, not just the parts that seem to agree with what you already think. The court said that a lien from a code enforcement board doesn’t count on homestead property. So, it’s not a problem unless the property stops being a homestead. If that happens, then the lien can be enforced. But the court didn’t say the lien should be removed if the property is a homestead. The Florida Supreme Court upheld a rule in Ilkanic v. City of Ft. Lauderdale, 705 So. 2d 1371 (Fla. 1998), stating that the homestead exemption only prevents the forced sale of homestead property and does not stop a lien from being placed on it. This rule was further clarified in Miskin v. City of Ft. Lauderdale, 661 So. 2d 415 (Fla. 4th DCA 1995), where the court explained that the lien remains valid but cannot be enforced as long as the property is a homestead. If a homeowner has a code enforcement lien recorded against their homestead property, they can seek a declaration that the lien does not actually apply to their property. This is the proper remedy for this situation. The court emphasized that even though the lien may appear valid to others, it is not enforceable on homestead property. This means that it cannot be used to make the homeowner sell their property or take out a loan. Another option is to take legal action to show that the lien is not actually valid or enforceable. In simple terms, when a property has a lien on it for code violations, the lien stays on the property even if the property is protected as a homestead. This is because the city or county needs to be able to enforce the lien if the homestead status is lost. If the government couldn’t keep the lien on the property, it wouldn’t be able to get paid for the violations. Even if the property is sold, the city can still enforce the lien and get paid from the sale proceeds. In one case, the court ruled that the city could get paid from the proceeds of a foreclosure sale because the former owners didn’t plan to use the money to buy another homestead. However, another court made a confusing decision based on a different type of lien, which added to the confusion about whether the city can keep its lien on a homestead property. In Florida, code enforcement liens can be recorded against homestead property, but they can’t be enforced as long as the property is still considered a homestead. If a homestead property owner wants to sell or refinance, they need to get a court declaration that the property is still a homestead and that the code enforcement order doesn’t count as a lien. If they do this, the local government can’t enforce the lien. But if they don’t, the lien could affect the sale or refinance. This is important for homeowners to know, and for lending institutions and title companies to understand. If the property loses its homestead status, the code enforcement lien can attach to the proceeds from the sale of the property. And if there’s a code enforcement lien on a property, the owner can’t just get rid of it. So, it’s important to understand the law and get legal advice if needed. “Cherry picking is the practice of choosing only the best or most favorable information, while ignoring the rest. It can happen in legal cases, where someone might only mention the parts of a law or court decision that support their argument, and ignore the parts that don’t. This can be a problem because it doesn’t give the full picture or a fair representation. It’s important to consider all the information and not just pick and choose the parts that help your case.” This column is from a group of lawyers who want to help people and make sure the justice system works well. They follow rules to make sure they do their job properly. They want to teach their members to do their work well and help the community, improve how the justice system works, and make the study of law better.

TL;DR: This is a column from a group of lawyers who want to do their job well, help the community, improve the justice system, and make the study of law better.

Source: https://www.floridabar.org/the-florida-bar-journal/homestead-sweet-homestead-how-code-enforcement-liens-should-be-treated-under-the-constitutional-homestead-exemption/