IS A LIEN PURSUANT TO THE CIVIL RESTITUTION LIEN AND CRIME VICTIMS' REMEDY ACT A LIEN AGAINST HOMESTEAD PROPERTY?
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 non-compliance 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."
While the Supreme Court tells us what the law is, whether property is or is not homestead at the time of a sale or mortgage transaction is a factual determination that must be made at that time.
In the section "Exemption from Forced Sale" in the Florida Supplement to the Company's Underwriting Guide, the statement is made that in order to insure title free and clear of liens as to homestead property, either the lien would have to be satisfied or released as to this property or a judicial determination of homestead be made where the creditor was before the court. The requirement would apply in the situations as described herein.