Florida Senate - 2009 SB 874
By Senator Smith
29-00968-09 2009874__
1 A bill to be entitled
2 An act relating to real property registration;
3 providing a short title; providing definitions;
4 requiring the Department of Financial Services to
5 establish a statewide Internet registry of certain
6 vacant, abandoned, or foreclosure-proposed properties
7 for certain purposes; authorizing the department to
8 charge a fee for registry filings; requiring lenders
9 to file with the registry certain information on
10 certain properties; providing additional information
11 requirements; requiring lenders to periodically
12 determine the vacant or abandoned status of certain
13 properties in mortgage default; specifying additional
14 required information; providing additional penalties;
15 requiring lenders and the department to notify local
16 governments of properties on the registry; requiring
17 local governments to establish an e-mail address for
18 receiving such notices; providing duties of lenders
19 and local governments; requiring lenders initiating
20 foreclosure proceedings to include certain information
21 in the filings for foreclosure; providing for
22 dismissal of foreclosure proceedings under certain
23 circumstances; providing for award of certain costs;
24 authorizing lenders to correct failures to include
25 specified information and deposit certain amounts into
26 the court registry for certain purposes; authorizing
27 local governments to enter properties listed on the
28 registry for certain examination purposes; providing
29 limitations; requiring local governments to notify
30 lenders of intent to enter certain properties for
31 certain purposes; prohibiting local governments from
32 entering such properties under certain circumstances;
33 authorizing lenders to certify to local governments
34 that certain properties have been inspected and meet
35 certain criteria; providing penalties; providing for
36 nonapplication to legally occupied properties;
37 providing local governments with immunity from
38 prosecution under certain circumstances; providing an
39 exception; requiring local governments to notify
40 certain persons of certain conditions of properties
41 listed on the registry; authorizing local governments
42 to correct or repair such conditions and recover the
43 full costs of such repairs or corrections; providing
44 for superiority of liens for such costs; providing
45 requirements; specifying abandoned property as
46 nonhomestead property; protecting the right of local
47 governments to inspect properties under certain
48 circumstances; prohibiting local governments from
49 maintaining separate local property registries;
50 requiring local governments to transmit any local
51 property registry information to the department;
52 providing information requirements for lenders
53 initiating foreclosure actions; prohibiting issuance
54 of final judgments of foreclosure and sales of
55 property in foreclosure actions under certain
56 circumstances; authorizing groups of lenders to
57 establish a separate reporting system under certain
58 circumstances; providing requirements; providing an
59 effective date.
60
61 Be It Enacted by the Legislature of the State of Florida:
62
63 Section 1. (1) This section may be cited as the “Vacant or
64 Abandoned Real Property Registration, Maintenance, and
65 Foreclosure Reporting Act.”
66 (2) For purposes of this section, the term:
67 (a) “Abandoned property” means property that is not legally
68 occupied by any person, is no longer being maintained, and
69 constitutes a nuisance as described in s. 823.01, Florida
70 Statutes.
71 (b) “Department” means the Department of Financial
72 Services.
73 (c) “Legal agent” means an employee or designee of a lender
74 designated by the lender for purposes of receiving legal notices
75 relating to real property.
76 (d) “Maintenance agent” means an employee or designee of a
77 lender designated by the lender for purposes of maintaining the
78 condition of real property.
79 (e) “Vacant property” means land upon which no structure
80 has been erected and constitutes a nuisance as described in s.
81 823.01, Florida Statutes.
82 (3)(a) The department shall establish a statewide Internet
83 registry of each property specified in subsection (4) containing
84 the information required by this section.
85 (b) The department shall use the filings in the registry to
86 provide statistical information concerning vacant or abandoned
87 property and property foreclosures.
88 (c) The department may charge a fee for each filing of
89 information of property listed in the registry. Such fee may not
90 exceed the actual costs of recording such information in the
91 registry and notifying local governments.
92 (4)(a) Each lender holding a mortgage on vacant or
93 abandoned real property that the lender takes action to
94 maintain, which may be pursuant to criteria established by the
95 Federal National Mortgage Association, under the rights provided
96 in the securing mortgage documents or with respect to which the
97 lender prepares legal documents to be filed for purposes of
98 foreclosing on the mortgaged property, whichever occurs first,
99 shall file with the registry a description of such real
100 property, including the property owner's name, the address of
101 the property, and the lender's loan number together with the
102 lender's name, the lender's legal agent and maintenance agent,
103 and the agents' addresses, telephone numbers, and e-mail
104 addresses. The department may require such other information the
105 department deems necessary to fulfill the intent and purpose of
106 this section. The lender's legal agent and maintenance agent may
107 be the same person. The lender shall also notify the appropriate
108 local government of the filing of such information with the
109 registry as required in subsection (5).
110 (b) At least once every 2 months after a mortgagor is in
111 default on a mortgage, as evidenced by written notification from
112 the lender to the mortgagor, the lender shall determine if the
113 property is vacant or abandoned and shall include the
114 information required in paragraph (a), including the date of any
115 inspection, into the registry upon filing. Failure to complete
116 the determination or include the results of the determination
117 into the registry shall result in an additional penalty of $500
118 at the time of filing. Such additional penalty shall be used to
119 satisfy any local government liens upon the premises that
120 accrued prior to the filing in the registry and any excess
121 penalty moneys shall be retained by the department.
122 (5)(a) The department shall provide a copy of the registry
123 filing and any registry filing updates by e-mail to the local
124 government within the jurisdiction of which the property is
125 located. Each local government shall establish an e-mail address
126 for purposes of receiving copies of such registry filings.
127 (b)1. A local government shall electronically confirm with
128 the registry the receipt of each such registry filing received
129 from the department, and the registry shall notify the legal
130 agent by e-mail certifying receipt by the local government. If
131 the lender does not receive such certification, the lender shall
132 provide by certified mail with proof of delivery to the local
133 government the information specified in subsection (4) and
134 electronically notify the registry of such action.
135 2. A local government that receives a confirmation in error
136 shall electronically notify the registry of the error, and the
137 registry shall notify the legal agent by e-mail.
138 3. When a lender is notified that a local government
139 received a notice in error, the lender shall correct the filing
140 in the registry and ensure that the correct local government
141 receives the notification required by this section.
142 (c) Whenever any lender information is changed, the lender
143 shall update the registry, including the time the lender
144 initiates proceedings to foreclose the mortgage on any property
145 listed in the registry, complying with the requirements of
146 paragraphs (a) and (b).
147 (d) When a lender retains legal counsel to pursue a
148 mortgage collection action or foreclosure action or files
149 foreclosure proceedings in court, the lender shall include proof
150 of the registry filing certifying that the proper local
151 government has received mortgage collection or foreclosure
152 notification through the registry or through certified mail with
153 proof of delivery as provided in this subsection. Failure to
154 include such information shall cause the mortgage collection or
155 foreclosure action to be dismissed and costs shall be assessed
156 against the lender, or the lender may correct the failure to
157 include such proof before such dismissal and deposit the sum of
158 $1,000 into the court registry to be used to pay any outstanding
159 liens of the local government if the local government chooses to
160 maintain the property.
161 (6)(a) Except as provided in paragraphs (b) and (c), after
162 a property is listed in the registry, the local government may
163 physically enter upon the premises of the property in the normal
164 course of property inspections under the same legal authority
165 possessed by the lender to enter upon such property, not more
166 often than once every 3 months, for the purpose of examining the
167 property to ensure that the property is properly secured and is
168 not a danger to the surrounding area. If during the inspection
169 the local government observes violations of local government
170 ordinances, the local government may issue notices to require
171 correction of the violations. However, at least 10 days prior to
172 entering the property for purposes of such examination, the
173 local government shall electronically notify the maintenance
174 agent of the proposed inspection, including the date and time of
175 the proposed inspection, and the lender's maintenance agent may
176 accompany the local government's inspectors during such
177 inspection.
178 (b) Notwithstanding paragraph (a), a local government may
179 not enter upon the premises of any property of the lender listed
180 on the registry to perform any inspection under paragraph (a) if
181 the lender certifies to the local government under oath that the
182 lender has conducted a physical inspection of the property
183 within 10 days after the notice provided by the local government
184 required under paragraph (a) and that the property is secure, is
185 not a danger to the surrounding area, and is in compliance with
186 the local government's ordinances. The inspection conducted by
187 the lender must include the name, business address, e-mail
188 address, and telephone number of the inspector and the date of
189 the physical inspection. If it is later determined that the
190 inspection is fraudulent, the lender and inspector shall be
191 subject to a civil penalty as provided in s. 501.2075, Florida
192 Statutes. If it is later determined that the inspection is
193 incorrect or fraudulent, the local government may immediately
194 proceed to inspect and enforce the provisions of this
195 subsection.
196 (c) Paragraph (a) does not apply to legally occupied
197 properties.
198 (d) If a local government enters upon the premises of any
199 property under this subsection for purposes of this subsection,
200 the local government shall be immune from prosecution except for
201 negligence on the part of officials of the local government in
202 conducting inspections and maintaining the property.
203 (7) If any property listed in the registry is broken into
204 or vandalized, violates the local government's ordinances, or
205 otherwise falls into disrepair or becomes uninhabitable, the
206 local government may notify the maintenance agent. If, after
207 providing such notice, the property remains unsecured or
208 vandalized, in violation of the local government's laws, or in
209 disrepair or uninhabitable, the local government may, but is not
210 required to, initiate repairs and recover the full amount of the
211 cost of such repairs from the lender. If the local government
212 initiates repairs, the local government is not required to
213 continue such repairs under s. 162.09, Florida Statutes. Such
214 costs shall be assessed against the property and shall
215 constitute a lien on such property equal in priority to real
216 property taxes, including any post lis pendens assessment filed
217 by the local government, which shall be deemed valid, during a
218 foreclosure proceeding, and shall be superior to all mortgage
219 liens and other liens or judgments against such property, which
220 must be satisfied in full upon sale of the property occurring as
221 a result of the foreclosure proceeding or upon settlement or
222 dismissal in the proceeding, if the local government complies
223 with the following:
224 (a) The property must be cited by the local government's
225 code enforcement agency through the local government's code
226 enforcement process, nuisance abatement process, or unsafe
227 structure process, which citation, in addition to any other
228 required notifications, must also be provided electronically to
229 the lender's legal agent, and the local government must conduct
230 a hearing, as is typically provided in such processes, to allow
231 the lender to dispute the evidence or present evidence of its
232 intent to secure and repair the property.
233 (b) If the lender fails to comply with the decision of the
234 local government's code enforcement agency, the local government
235 may proceed to initiate and complete repairs and secure the
236 property. Thereafter, the local government may record a lien
237 assessing the property for such expenses in the public records
238 of the county and may also proceed to enforce collection of such
239 lien as provided in this section or in the same manner as other
240 liens and assessments of the local government.
241 (8) Property that has been abandoned by the property owner
242 shall no longer be deemed to be homestead property.
243 (9) This section does not prohibit a local government from
244 inspecting property and enforcing its laws or from exercising
245 any other remedies available to local governments as provided by
246 law. Additionally, if the real property poses an immediate
247 danger to the public health, safety, and welfare, the local
248 government may take any authorized action provided by law, and
249 the costs of correcting the immediate danger shall hold the same
250 status as an assessment provided in subsection (7).
251 (10) Upon the effective date of this section and upon the
252 implementation of the registry, a local government may not
253 maintain a separate local registry for lenders to file
254 descriptions of property as provided in subsection (3). Any
255 registration information held by a local government in any type
256 of local registry shall be transmitted electronically to the
257 registry by August 1, 2009, or at such time that the department
258 notifies the local government that the department is ready to
259 receive the information, whichever occurs later.
260 (11) Any lender that has initiated mortgage foreclosure
261 proceedings on a property subject to filing requirements with
262 the registry under this section by filing a foreclosure claim in
263 a foreclosure action in court prior to the effective date of
264 this section and a sale of the property has not occurred
265 pursuant to a final judgment of foreclosure or a decree of
266 foreclosure in the foreclosure action, shall comply with the
267 requirements of this section, and a final judgment of
268 foreclosure ordering the property to be sold may not be issued
269 and a sale of the property may not be made until after the
270 lender files with the court in the foreclosure proceeding the
271 required notice showing compliance in notifying the registry and
272 local government as required by this section.
273 (12) Notwithstanding the registry reporting requirements of
274 this section and subject to approval by the department, a group
275 of lenders may provide a separate system of reporting the
276 information required under this section to the department and to
277 affected local governments, provided the system satisfies the
278 reporting requirements of this section. Such lenders shall be
279 subject to the other requirements of this section.
280 Section 2. This act shall take effect July 1, 2009.