Florida Senate - 2011                                    SB 1072
       
       
       
       By Senator Latvala
       
       
       
       
       16-00275-11                                           20111072__
    1                        A bill to be entitled                      
    2         An act relating to real property; amending s. 222.01,
    3         F.S.; revising procedures for a person, including
    4         certain lienholders, subsequent owners, and successors
    5         in interest, to claim that a property is exempt from
    6         forced sale; authorizing the exemption from forced
    7         sale to be claimed if a code enforcement lien exists
    8         or has been recorded against a property; providing a
    9         form notice of exemption from forced sale for use by
   10         certain lienholders, subsequent owners, or successors
   11         in interest; requiring a clerk of court to mail a
   12         notice of exemption from forced sale to a judgment
   13         lienor or lienholder; providing that the judgment lien
   14         or lien of a lienor or lienholder who fails to
   15         institute certain legal actions within a certain time
   16         does not attach to the interest of a subsequent owner,
   17         lienholder, or successor in interest who files a
   18         notice of exemption from forced sale; amending s.
   19         695.01, F.S.; providing that certain conveyances,
   20         transfers, or mortgages of real property are not valid
   21         against creditors or subsequent purchasers unless such
   22         documents are recorded in the official records;
   23         providing that a lien imposed on real property by a
   24         governmental or quasi-governmental entity for certain
   25         purposes is not valid against a creditor or subsequent
   26         purchasers unless the lien is recorded; specifying the
   27         priority of liens; providing for the assignment of a
   28         lien; amending s. 695.27, F.S.; including s. 695.28,
   29         F.S., in the Uniform Real Property Electronic
   30         Recording Act; extending the existence of the
   31         Electronic Recording Advisory Committee; creating s.
   32         695.28, F.S.; providing for the validity of certain
   33         documents that have been recorded electronically;
   34         providing that the act is intended to clarify existing
   35         law and applies retroactively; providing effective
   36         dates.
   37  
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Effective July 1, 2011, section 222.01, Florida
   41  Statutes, is amended to read:
   42         222.01 Designation of homestead by owner before levy.—
   43         (1)(a)A natural person may claim the exemption from forced
   44  sale of real property under s. 4, Art. X of the State
   45  Constitution by recording a signed written statement in the
   46  circuit court in the county in which the property is located:
   47         1. Describing the real property, mobile home, or modular
   48  home for which the exemption is claimed; and
   49         2. Declaring that the real property, mobile home, or
   50  modular home is the person’s homestead.
   51         (b) The exemption from forced sale of real property under
   52  s. 4, Art. X of the State Constitution may be claimed by a
   53  subsequent owner, lienholder, or successor in interest of the
   54  property if the subsequent owner, lienholder, or successor in
   55  interest records a signed written statement in the circuit
   56  court:
   57         1. Describing the real property, mobile home, or modular
   58  home for which the exemption is claimed; and
   59         2. Declaring that the real property, mobile home, or
   60  modular home was a homestead until the person eligible to claim
   61  the property as his or her homestead relinquished or conveyed
   62  his or her interest in the property to the claimant. Whenever
   63  any natural person residing in this state desires to avail
   64  himself or herself of the benefit of the provisions of the
   65  constitution and laws exempting property as a homestead from
   66  forced sale under any process of law, he or she may make a
   67  statement, in writing, containing a description of the real
   68  property, mobile home, or modular home claimed to be exempt and
   69  declaring that the real property, mobile home, or modular home
   70  is the homestead of the party in whose behalf such claim is
   71  being made. Such statement shall be signed by the person making
   72  it and shall be recorded in the circuit court.
   73         (2)(a)If When a certified copy of a judgment under has
   74  been filed in the public records of a county pursuant to chapter
   75  55 or a code enforcement lien under chapter 162 exists or has
   76  been recorded against a property that is exempt from forced sale
   77  under s. 4, Art. X of the State Constitution, a person who is
   78  entitled to the exemption from forced sale benefit of the
   79  provisions of the State Constitution exempting real property as
   80  homestead and who has a contract to sell or a commitment from a
   81  lender for a mortgage on the homestead may record file a notice
   82  of homestead in the official public records of the county in
   83  which the homestead property is located. The notice must be in
   84  substantially the following form:
   85  
   86                         NOTICE OF HOMESTEAD                       
   87  
   88         To:...(Name and address of judgment creditor or
   89         lienholder as shown on recorded judgment or lien and
   90         name and address of any other person shown in the
   91         recorded judgment to receive a copy of the Notice of
   92         Homestead)....
   93  
   94         You are notified that the undersigned claims as
   95         homestead exempt from levy and execution under Section
   96         4, Article X of the State Constitution, the following
   97         described property:
   98  
   99                      ...(Legal description)...                    
  100  
  101         The undersigned certifies, under oath, that he or she
  102         has applied for and received the homestead tax
  103         exemption as to the above-described property, that
  104         .... is the tax identification parcel number of this
  105         property, and that the undersigned has resided on this
  106         property continuously and uninterruptedly from
  107         ...(date)... to the date of this Notice of Homestead.
  108         Further, the undersigned will either convey or
  109         mortgage the above-described property pursuant to the
  110         following:
  111  
  112         ...(Describe the contract of sale or loan commitment
  113         by date, names of parties, date of anticipated
  114         closing, and amount. The name, address, and telephone
  115         number of the person conducting the anticipated
  116         closing must be set forth.)...
  117  
  118         The undersigned also certifies, under oath, that the
  119         judgment lien or lien recorded filed by you on
  120         ...(date)... and recorded in Official Records Book
  121         ...., Page ...., of the Public Records of ........
  122         County, Florida, does not constitute a valid lien on
  123         the described property.
  124  
  125         YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01
  126         ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER
  127         THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN
  128         THE CIRCUIT COURT OF ........ COUNTY, FLORIDA, FOR A
  129         DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL
  130         HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO
  131         FORECLOSE YOUR JUDGMENT LIEN OR LIEN ON THE PROPERTY
  132         AND RECORD A LIS PENDENS IN THE OFFICIAL PUBLIC
  133         RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED.
  134         YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR
  135         LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER
  136         THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN
  137         COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN
  138         OR LIEN YOU MAY HAVE ON THE PROPERTY.
  139  
  140         This .... day of ............, 2.....
  141  ........................
  142  ...(Signature of Owner)...
  143  
  144  ........................
  145  ...(Printed Name of Owner)...
  146  
  147  ........................
  148  ...(Owner’s Address)...
  149  
  150         Sworn to and subscribed before me by
  151         ........................ who is personally known to me
  152         or produced ........................ as
  153         identification, this .... day of ............, 2.....
  154  
  155  ........................
  156  Notary Public
  157  
  158         (b) If a certified copy of a judgment under chapter 55 or a
  159  code enforcement lien under chapter 162 exists or has been
  160  recorded against a property that is exempt from forced sale
  161  under s. 4, Art. X of the State Constitution, a lienholder,
  162  subsequent owner, or successor in interest to a person who was
  163  entitled to the exemption may record a notice of exemption from
  164  forced sale in the public records of the county in which the
  165  property is located. The notice must be in substantially the
  166  following form:
  167  
  168                  NOTICE EXEMPTION FROM FORCED SALE                
  169  
  170         To:...(Name and address of judgment creditor or
  171         lienholder as shown on recorded judgment or lien and
  172         name and address of any other person shown in the
  173         recorded judgment to receive a copy of the Notice of
  174         Homestead)...
  175  
  176         You are notified that the undersigned claims that the
  177         property described below is exempt from forced sale
  178         under Section 4, Article X of the State Constitution:
  179  
  180                      ...(Legal description)...                    
  181  
  182         The undersigned certifies, under oath, that the
  183         property is exempt from forced sale because the
  184         undersigned is either:
  185         .... A lienholder having a lien that is an exception
  186         to the exemption from forced sale under Section 4,
  187         Article X of the State Constitution; or
  188         .... A subsequent owner or successor in interest who
  189         acquired an interest in the property from a person who
  190         used the property as a homestead until the property
  191         was transferred or conveyed to the subsequent owner or
  192         successor in interest.
  193  
  194         The undersigned further certifies, under oath, that
  195         the homestead tax exemption was received as to the
  196         above-described property, that .... is the tax
  197         identification parcel number of this property, and
  198         that the property has been homestead property from
  199         ...(date)... to the date of this Notice of Exemption
  200         from Forced Sale or the date that the subsequent owner
  201         or successor in interest acquired an interest in the
  202         property. Further, the undersigned will either convey
  203         or mortgage the above-described property pursuant to
  204         the following:
  205  
  206         ...(Describe the contract of sale or loan commitment
  207         by date, names of parties, date of anticipated
  208         closing, and amount. The name, address, and telephone
  209         number of the person conducting the anticipated
  210         closing must be set forth.)...
  211  
  212         The undersigned also certifies, under oath, that the
  213         judgment lien or lien recorded by you on ...(date)...
  214         in Official Records Book ...., Page ...., of the
  215         Public Records of ........ County, Florida, does not
  216         constitute a valid lien on the described property.
  217  
  218         YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01
  219         ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER
  220         THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN
  221         THE CIRCUIT COURT OF ........ COUNTY, FLORIDA, FOR A
  222         DECLARATORY JUDGMENT TO DETERMINE WHETHER THE SUBJECT
  223         PROPERTY IS EXEMPT FROM FORCED SALE AND RECORD A LIS
  224         PENDENS IN THE OFFICIAL RECORDS OF THE COUNTY WHERE
  225         THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL
  226         RESULT IN ANY BUYER OR LENDER, OR HIS OR HER
  227         SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED
  228         CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND
  229         CLEAR OF ANY JUDGMENT LIEN OR LIEN YOU MAY HAVE ON THE
  230         PROPERTY.
  231  
  232         This .... day of ............, 2.....
  233  ........................
  234  ...(signature of lienholder, subsequent owner, or successor in
  235  interest)...
  236  
  237  ........................
  238  ...(printed name of lienholder, subsequent owner, or successor
  239  in interest)...
  240  
  241  ........................
  242  ...(address of lienholder, subsequent owner, or successor in
  243  interest)...
  244  
  245         Sworn to and subscribed before me by
  246         ........................ who is personally known to me
  247         or produced ........................ as
  248         identification, this .... day of ............, 2.....
  249  
  250  ........................
  251  Notary Public
  252  
  253         (3) The clerk shall mail a copy of the notice of homestead
  254  or notice of exemption from forced sale to the judgment lienor
  255  or lienholder, by certified mail, return receipt requested, at
  256  the address shown in the most recent recorded lien, judgment, or
  257  accompanying affidavit, and to any other person designated in
  258  the most recent recorded lien, judgment, or accompanying
  259  affidavit to receive the notice of homestead, and shall certify
  260  to such service on the face of such notice and record the
  261  notice. Notwithstanding the use of certified mail, return
  262  receipt requested, service is shall be deemed complete upon
  263  mailing.
  264         (4) A lien pursuant to chapter 55 of any lienor or
  265  lienholder upon whom such notice is served, who fails to
  266  institute an action for a declaratory judgment to determine
  267  whether the constitutional homestead status of the property is
  268  exempt from forced sale described in the notice of homestead or
  269  to file an action to foreclose the judgment lien, together with
  270  the filing of a lis pendens in the official public records of
  271  the county in which the homestead is located, within 45 days
  272  after service of such notice shall be deemed as not attaching to
  273  the property: by virtue of its status as homestead property
  274         (a) As to the interest of any buyer or lender, or his or
  275  her successors or assigns, who takes under the contract of sale
  276  or loan commitment described above within 180 days after the
  277  filing in the official public records of the notice of
  278  homestead; or
  279         (b) As to the interest of any subsequent owner, lienholder,
  280  or successor in interest of the property who filed a notice of
  281  exemption from forced sale.
  282  
  283  This subsection does shall not act to prohibit a lien from
  284  attaching to the real property described in a the notice of
  285  homestead at such time as the property loses its homestead
  286  status.
  287         (5) As provided in s. 4, Art. X of the State Constitution,
  288  this subsection does shall not apply to liens and judgments for:
  289         (a) Liens and judgments for The payment of taxes and
  290  assessments on real property.
  291         (b) Liens and judgments for Obligations contracted for the
  292  purchase of real property.
  293         (c) Liens and judgments for Labor, services, or materials
  294  furnished to repair or improve real property.
  295         (d) Liens and judgments for Other obligations contracted
  296  for house, field, or other labor performed on real property.
  297         Section 2. Effective July 1, 2011, section 695.01, Florida
  298  Statutes, is amended to read:
  299         695.01 Conveyances, mortgages, and liens to be recorded.—
  300         (1) A No conveyance, transfer, or mortgage of real
  301  property, an or of any interest in the real property therein, or
  302  a nor any lease for a term of 1 year or longer is not valid,
  303  shall be good and effectual in law or equity against creditors
  304  or subsequent purchasers for a valuable consideration and
  305  without notice, unless the conveyance, transfer, mortgage,
  306  interest, or lease is same be recorded in the official records
  307  of the county in which the property is located. according to
  308  law; nor shall Any such instrument made or executed by virtue of
  309  a any power of attorney is not valid be good or effectual in law
  310  or in equity against creditors or subsequent purchasers for a
  311  valuable consideration and without notice unless the power of
  312  attorney is be recorded in the official records of the county in
  313  which the property is located before the accruing of the right
  314  of such creditor or subsequent purchaser accrues. The receipt of
  315  title under a quitclaim deed alone does not disqualify the
  316  grantee as a bona fide purchaser without notice within the
  317  meaning of the recording acts.
  318         (2) A lien by a governmental entity or quasi-governmental
  319  entity which attaches to real property for an improvement,
  320  service, fine, or penalty is valid and effectual against
  321  creditors and subsequent purchasers for a valuable consideration
  322  only if the lien is recorded in the official records of the
  323  county in which the property is located. The recorded notice of
  324  lien must contain the name of the owner of record, a legally
  325  sufficient legal description of the property, and the tax or
  326  parcel identification number applicable to the property as of
  327  the date of assessment. The priority of a lien described in this
  328  subsection is based on the order in which it is recorded, unless
  329  the recorded notice of such lien clearly states a higher
  330  priority and includes a citation to the statute or ordinance
  331  authorizing a higher priority. This section prevails over any
  332  conflicting home rule power or authority granted under any act,
  333  ordinance, or order creating the governmental or quasi
  334  governmental entity. The requirements to state the legal
  335  description and a tax or parcel identification number in a
  336  notice of lien do not apply to liens evidenced by a recorded
  337  mortgage; liens created pursuant to a court order or judgment;
  338  liens for local, state, and federal taxes; liens for special
  339  assessments levied and collected under the uniform method
  340  described in s. 197.3632; liens for utility services; liens for
  341  child and marital support; hospital liens; or liens imposed in
  342  connection with federal or state RICO claims and criminal
  343  prosecutions.
  344         (3) A lien assessed, imposed, or created by a governmental
  345  or quasi-governmental entity may be assigned by recording an
  346  assignment in the official records of the county in which the
  347  property is located. A person other than the present owner of
  348  the property involved who pays the unsatisfied lien is entitled
  349  to receive an assignment of the lien and shall be subrogated to
  350  the rights of the governmental or quasi-governmental entity with
  351  respect to the enforcement of the lien. Grantees by quitclaim,
  352  heretofore or hereafter made, shall be deemed and held to be
  353  bona fide purchasers without notice within the meaning of the
  354  recording acts.
  355         Section 3. Subsections (1), (2), and (5) of section 695.27,
  356  Florida Statutes, are amended to read:
  357         695.27 Uniform Real Property Electronic Recording Act.—
  358         (1) SHORT TITLE.—This section and s. 695.28 may be cited as
  359  the “Uniform Real Property Electronic Recording Act.”
  360         (2) DEFINITIONS.—As used in this section and s. 695.28:
  361         (a) “Document” means information that is:
  362         1. Inscribed on a tangible medium or that is stored in an
  363  electronic or other medium and is retrievable in perceivable
  364  form; and
  365         2. Eligible to be recorded in the Official Records, as
  366  defined in s. 28.222, and maintained by a county recorder.
  367         (b) “Electronic” means relating to technology having
  368  electrical, digital, magnetic, wireless, optical,
  369  electromagnetic, or similar capabilities.
  370         (c) “Electronic document” means a document that is received
  371  by a county recorder in an electronic form.
  372         (d) “Electronic signature” means an electronic sound,
  373  symbol, or process that is executed or adopted by a person with
  374  the intent to sign the document and is attached to or logically
  375  associated with a document such that, when recorded, it is
  376  assigned the same document number or a consecutive page number
  377  immediately following such document.
  378         (e) “Person” means an individual, corporation, business
  379  trust, estate, trust, partnership, limited liability company,
  380  association, joint venture, public corporation, government or
  381  governmental subdivision, agency, instrumentality, or any other
  382  legal or commercial entity.
  383         (f) “State” means a state of the United States, the
  384  District of Columbia, Puerto Rico, the United States Virgin
  385  Islands, or any territory or insular possession subject to the
  386  jurisdiction of the United States.
  387         (5) ADMINISTRATION AND STANDARDS.—
  388         (a) The Department of State, by rule pursuant to ss.
  389  120.536(1) and 120.54, shall prescribe standards to implement
  390  this section in consultation with the Electronic Recording
  391  Advisory Committee, which is hereby created. The Florida
  392  Association of Court Clerks and Comptrollers shall provide
  393  administrative support to the committee and technical support to
  394  the Department of State and the committee at no charge. The
  395  committee shall consist of nine members, as follows:
  396         1. Five members appointed by the Florida Association of
  397  Court Clerks and Comptrollers, one of whom must be an official
  398  from a large urban charter county where the duty to maintain
  399  official records exists in a county office other than the clerk
  400  of court or comptroller.
  401         2. One attorney appointed by the Real Property, Probate and
  402  Trust Law Section of The Florida Bar Association.
  403         3. Two members appointed by the Florida Land Title
  404  Association.
  405         4. One member appointed by the Florida Bankers Association.
  406         (b) Appointed members shall serve a 1-year term. All
  407  initial terms shall commence on the effective date of this act.
  408  Members shall serve until their successors are appointed. An
  409  appointing authority may reappoint a member for successive
  410  terms. A vacancy on the committee shall be filled in the same
  411  manner in which the original appointment was made, and the term
  412  shall be for the balance of the unexpired term.
  413         (c) The first meeting of the committee shall be within 60
  414  days of the effective date of this act. Thereafter, the
  415  committee shall meet at the call of the chair, but at least
  416  annually.
  417         (d) The members of the committee shall serve without
  418  compensation and shall not claim per diem and travel expenses
  419  from the Secretary of State.
  420         (e) To keep the standards and practices of county recorders
  421  in this state in harmony with the standards and practices of
  422  recording offices in other jurisdictions that enact
  423  substantially this section and to keep the technology used by
  424  county recorders in this state compatible with technology used
  425  by recording offices in other jurisdictions that enact
  426  substantially this section, the Department of State, in
  427  consultation with the committee, so far as is consistent with
  428  the purposes, policies, and provisions of this section, in
  429  adopting, amending, and repealing standards, shall consider:
  430         1. Standards and practices of other jurisdictions.
  431         2. The most recent standards adopted by national standard
  432  setting bodies, such as the Property Records Industry
  433  Association.
  434         3. The views of interested persons and governmental
  435  officials and entities.
  436         4. The needs of counties of varying size, population, and
  437  resources.
  438         5. Standards requiring adequate information security
  439  protection to ensure that electronic documents are accurate,
  440  authentic, adequately preserved, and resistant to tampering.
  441         (f) The committee shall terminate on July 1, 2013 2010.
  442         Section 4. Section 695.28, Florida Statutes, is created to
  443  read:
  444         695.28Validity of recorded electronic documents.—
  445         (1) A document that is otherwise entitled to be recorded
  446  and that was or is submitted to the clerk of the court or county
  447  recorder by electronic means and accepted for recordation is
  448  deemed validly recorded and provides notice to all persons
  449  notwithstanding:
  450         (a) That the document was received and accepted for
  451  recordation before the Department of State adopted standards
  452  implementing s. 695.27; or
  453         (b) Any defects in, deviations from, or the inability to
  454  demonstrate strict compliance with any statute, rule, or
  455  procedure to submit or record an electronic document in effect
  456  at the time the electronic document was submitted for recording.
  457         (2) This section does not alter the duty of the clerk or
  458  recorder to comply with s. 695.27 or rules adopted pursuant to
  459  that section.
  460         Section 5. This act is intended to clarify existing law and
  461  applies retroactively.
  462         Section 6. Except as otherwise expressly provided in this
  463  act, this act shall take effect upon becoming a law.