Re: NEW Florida Lien Law

Posted by poor lawyer (24.88.34.92) on August 11, 2002 at 23:36:04:

In Reply to: Re: NEW Florida Lien Law posted by Why Chat on August 11, 2002 at 22:26:10:

A couple distinctions should be made first between real and personal property. The new statute only affects personal property and would have no affect on real property, a house, or a homestead.

Under Florida law, a judgment creates a lien against real property in any county in which it is filed for a period of 10 years if recorded after 7/1/94. (the 7 year period can no longer apply). The lien may be renewed once by refiling it before the lien expires. This second lien is good for an additional 10 years as of the date it is recorded, and its effective date is the date of its renewed filing (as to prior and subsequent liens.) The new florida law does not affect any of this. See 55.10 et seq.

However, the Florida constitution states that a judgment will not be a lien against a homestead, nor can a homestead be foreclosed upon based on a judgment. This exemption is applicable to up to 1/2 contiguous acres if the homestead is in a municipality and 160 contiguous acres if outside a municipality. This broad exemption does not apply to taxes and school levys, purchase contracts, improvements or construction, and other certain types of debts.

I honestly can't say what effect a judgment would have on a sale and transfer of a homestead. I couldn't find a statute on this. Would it still be a homestead if it is being sold? I don't know. I would ask a Florida attorney.

A distinction should also be made between the judgment and the judgment lien. The judgment is a decree from a court. The judgment lien is an encumbrance upon property as a result of a properly recorded judgment. The recording statutes do not affect the validity of the underlying judgment, only the validity of the judgment lien.

Unless there is a specific statute to the contrary, a judgment is valid until it is either satisfied, vacated, or overruled. A judgment is in essence a decree of that State. i.e. a judgment in the State of Florida is a demand by the State of Florida for defendant to pay plaintiff a certain sum of money.

A valid judgment can be enforced through means other than the lien and sale of property, if the state permits. garnishment of wages is one example.

Judgments do not need to be filed, or refiled, to be valid judgments. So long as the court enters the judgment on the record, it is a judgment.

Finally, it should be noted that there is a possiblity that a judgment from one state could be a lien on property in another state (assuming the foreign judgment is properly filed) even if the lien is time-barred in the original state. It would depend on the laws of the different states.

As to the credit report, FCRA 605(a)(2) limits the reporting of civil suits and civil judgments to a period of 7 years or the applicable statute of limitations, whichever is longer. A judgment is not subject to a statue of limitations, although enforcement of the judgment through a lien may be. Thus, a valid judgment may be reported for a period of up to 7 years from the time the judgment is entered by the court.

poor lawyer, esq.

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