Can't touch FL. Homestead
In Florida when you get ready to sell a homestead property you can file (for no cost) "Notice of Homestead" under section 222.01. The lien holder has 45 days to prove the property is not homestead property or the lien is removed. If you are thinking of selling or going for a refi then file this form. I filed it last week agianst the City of St. Pete for codes violations just to have the illegal liens removed. This is a Fl. Supreame Court ruling and homestead property is about as untouchable as you can get. Ask OJ about that. Florida law and case law is...
Florida Constitution
Article X SECTION 4.* Homestead; exemptions.--
(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, 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 the owner's family;
(2)**personal property to the value of one thousand dollars.
(b)**These exemptions shall inure to the surviving spouse or heirs of the owner.
(c)**The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
History.--Am. H.J.R. 4324, 1972; adopted 1972; Am. H.J.R. 40, 1983; adopted 1984; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
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CASE LAW:*
Florida Supreme Court in the case of Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371
This question was asked of the Florida Supreme Court in the case of Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371. The Supreme Court said that "the legal effect of a statutory lien on homestead property was analyzed in Demura v. County of Volusia, 618 So.2d 754. In that case, land owners sued to quiet title to a homestead against a lien that had been imposed by the County for noncompliance with an Order of the Code Enforcement Board. The County argued that the Constitution only prohibits the forced sale of homestead property and does not prohibit the imposition of a lien. The Court properly held that, "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. In like manner, the civil restitution lien cannot be a cloud on homestead property."
The paper to file with the clerk looks like this...
NOTICE OF HOMESTEAD
To:Lien Holder
You are notified that the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution, the following described property:
Parcel # your numbers
The undersigned certifies, under oath, that he or she has applied for and received the homestead tax exemption as to the above-described property, that Parcel # 111111111 is the tax identification parcel number of this property, and that the undersigned has resided on this property continuously and uninterruptedly from 4/17/91 to the date of this Notice of Homestead.
The undersigned also certifies, under oath, that the judgment lien filed by you on 6/2/2004 and recorded in Official Records Book #0000 Page 1022, and 7/1/2004 recorded in Official Records Book #77 Page 29, and 8/10/2004 recorded in Official Records Book #61 Page 127, of the Public Records of Pinellas County, Florida, does not constitute a valid lien on the described property.
YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF PINELLAS COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE PROPERTY.
This _____ day of _______________, 2_____.
______________________________
*(Signature of Owner)*
______________________________
*(Printed Name of Owner)*
*(Owner's Address)*
Sworn to and subscribed before me by your name who is personally known to me or produced Fl. Drivers License as identification, this _____ day of _______________, 2_____.
______________________________
Notary Public
(3)**The clerk shall mail a copy of the notice of homestead to the judgment lienor, by certified mail, return receipt requested, at the address shown in the most recent recorded judgment or accompanying affidavit, and to any other person designated in the most recent recorded judgment or accompanying affidavit to receive the notice of homestead, and shall certify to such service on the face of such notice and record the notice. Notwithstanding the use of certified mail, return receipt requested, service shall be deemed complete upon mailing.
(4)**A lien pursuant to s. 55.10 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional homestead status of the property described in the notice of homestead or to file an action to foreclose the judgment lien, together with the filing of a lis pendens in the public records of the county in which the homestead is located, within 45 days after service of such notice shall be deemed as not attaching to the property by virtue of its status as homestead property as to the interest of any buyer or lender, or his or her successors or assigns, who takes under the contract of sale or loan commitment described above within 180 days after the filing in the public records of the notice of homestead. This subsection shall not act to prohibit a lien from attaching to the real property described in the notice of homestead at such time as the property loses its homestead status.
(5)**As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to:
(a)**Liens and judgments for the payment of taxes and assessments on real property.
(b)**Liens and judgments for obligations contracted for the purchase of real property.
(c)**Liens and judgments for labor, services, or materials furnished to repair or improve real property.
(d)**Liens and judgments for other obligations contracted for house, field, or other labor performed on real property.
In Florida when you get ready to sell a homestead property you can file (for no cost) "Notice of Homestead" under section 222.01. The lien holder has 45 days to prove the property is not homestead property or the lien is removed. If you are thinking of selling or going for a refi then file this form. I filed it last week agianst the City of St. Pete for codes violations just to have the illegal liens removed. This is a Fl. Supreame Court ruling and homestead property is about as untouchable as you can get. Ask OJ about that. Florida law and case law is...
Florida Constitution
Article X SECTION 4.* Homestead; exemptions.--
(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, 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 the owner's family;
(2)**personal property to the value of one thousand dollars.
(b)**These exemptions shall inure to the surviving spouse or heirs of the owner.
(c)**The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
History.--Am. H.J.R. 4324, 1972; adopted 1972; Am. H.J.R. 40, 1983; adopted 1984; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
*
***
CASE LAW:*
Florida Supreme Court in the case of Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371
This question was asked of the Florida Supreme Court in the case of Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371. The Supreme Court said that "the legal effect of a statutory lien on homestead property was analyzed in Demura v. County of Volusia, 618 So.2d 754. In that case, land owners sued to quiet title to a homestead against a lien that had been imposed by the County for noncompliance with an Order of the Code Enforcement Board. The County argued that the Constitution only prohibits the forced sale of homestead property and does not prohibit the imposition of a lien. The Court properly held that, "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. In like manner, the civil restitution lien cannot be a cloud on homestead property."
The paper to file with the clerk looks like this...
NOTICE OF HOMESTEAD
To:Lien Holder
You are notified that the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution, the following described property:
Parcel # your numbers
The undersigned certifies, under oath, that he or she has applied for and received the homestead tax exemption as to the above-described property, that Parcel # 111111111 is the tax identification parcel number of this property, and that the undersigned has resided on this property continuously and uninterruptedly from 4/17/91 to the date of this Notice of Homestead.
The undersigned also certifies, under oath, that the judgment lien filed by you on 6/2/2004 and recorded in Official Records Book #0000 Page 1022, and 7/1/2004 recorded in Official Records Book #77 Page 29, and 8/10/2004 recorded in Official Records Book #61 Page 127, of the Public Records of Pinellas County, Florida, does not constitute a valid lien on the described property.
YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF PINELLAS COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE PROPERTY.
This _____ day of _______________, 2_____.
______________________________
*(Signature of Owner)*
______________________________
*(Printed Name of Owner)*
*(Owner's Address)*
Sworn to and subscribed before me by your name who is personally known to me or produced Fl. Drivers License as identification, this _____ day of _______________, 2_____.
______________________________
Notary Public
(3)**The clerk shall mail a copy of the notice of homestead to the judgment lienor, by certified mail, return receipt requested, at the address shown in the most recent recorded judgment or accompanying affidavit, and to any other person designated in the most recent recorded judgment or accompanying affidavit to receive the notice of homestead, and shall certify to such service on the face of such notice and record the notice. Notwithstanding the use of certified mail, return receipt requested, service shall be deemed complete upon mailing.
(4)**A lien pursuant to s. 55.10 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional homestead status of the property described in the notice of homestead or to file an action to foreclose the judgment lien, together with the filing of a lis pendens in the public records of the county in which the homestead is located, within 45 days after service of such notice shall be deemed as not attaching to the property by virtue of its status as homestead property as to the interest of any buyer or lender, or his or her successors or assigns, who takes under the contract of sale or loan commitment described above within 180 days after the filing in the public records of the notice of homestead. This subsection shall not act to prohibit a lien from attaching to the real property described in the notice of homestead at such time as the property loses its homestead status.
(5)**As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to:
(a)**Liens and judgments for the payment of taxes and assessments on real property.
(b)**Liens and judgments for obligations contracted for the purchase of real property.
(c)**Liens and judgments for labor, services, or materials furnished to repair or improve real property.
(d)**Liens and judgments for other obligations contracted for house, field, or other labor performed on real property.