County and Municipal governments, while carrying out its obligation to provide code enforcement services to address violations of codes and ordinances, will often apply fines for cases where compliance is not achieved in a timely manner. Penalties are typically applied after a hearing has been held and a time-frame to achieve compliance is provided to a violator. The majority of violations are usually corrected within the time-frame provided by the code enforcement officer however, since a proportion of property owners fail to bring their properties into compliance, these fines can quickly add up. If the county or municipality was required to perform any abatement services, such as mowing, trash removal or demolition, those costs also become outstanding bills that are owed by the property owner. When the fines remain unpaid, this may result in the filing of liens for unpaid fines or bills.
Simple primer on code enforcement case procedure
Typically, the code enforcement process begins after an investigation has been performed and a notice that one or more violations exist, is provided to a violator, which is usually the property owner. This notification includes information which is required by law and basically serves to provide a description of the violations which may exist on a particular property or location, steps needed to obtain compliance, and a time-frame for which the violations must be corrected. If an extension of time is not granted and the violations are not corrected, the violations may be referred to an administrative hearing conducted by a Code Enforcement Board or Special Magistrate Judge for adjudication to determine if violations are, in fact, valid and to provide a violator or respondent with due process rights to a hearing.
After a hearing is held and violations are upheld, an order providing an additional time-frame for obtaining compliance is provided with a penalty amount or fine for each day that the violations are not corrected. If the violations are corrected prior to this date, then no fine may accrue. However, if the violations are not corrected by this time-frame, then a daily fine begins until the property is brought into compliance. Once compliance is acknowledged by the code enforcement officer then the daily fine stops and this amount becomes a fine which is owed to the County or Municipality. If compliance is not achieved, the fine continues to accrue. Usually, another hearing to determine if violations were not corrected in a timely manner and to impose the penalty is scheduled and notification of the hearing is provided to the violator. If the fine is upheld, then an order establishing a fine is provided to the violator. This fine may become a lien if the County or Municipality so chooses.
In the State of Florida, Florida Statute Section 162.09 (3) provides that a certified copy of an order by a Code Enforcement Board or a Special Magistrate imposing a fine may be recorded in the public records which results in a lien placed against the land on which the violation exists and upon any other real or personal property owned by the violator.
Purpose of the code enforcement penalty versus a lien
In the simplest of terms, a lien is a legal claim on someone’s property as security for a debt or an amount owed for services provided for which payment was not received. It basically serves to detain the property of someone until that claim is satisfied. The amount of the penalty that is imposed by a code enforcement board or special magistrate occurs after reviewing three important factors; one, the gravity of the violation; two, any actions taken by the violator to correct the violation; and three, any previous violations committed by the violator. Once the fine is recorded, it now is known as a lien. The certified copy of the order will usually state the amount of the fine or a daily penalty and may include a provision for accrued interest until satisfied. After 3 months from the filing of a lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose or to sue to recover a money judgment for the amount plus accrued interest. This provision, however, does not apply on real property or personal property which is a homestead under s. 4, Art. X of the Florida State Constitution.
The state statute describes the fine and the recording of it separately, as they are not one in the same. The penalty that is imposed, due to noncompliance with an order, continues to accrue until compliance is met and therefore the fine no longer continues to run or if suit has been filed and a judgment is rendered. However, the lien that results from a fine that was imposed, rests with the local governing body as it is an amount that is owed. According to Florida Statute Section 162.10, a code enforcement lien is valid for 20 years from the date of recording.
In 1986, the Florida Attorney General provided further clarification as to the mechanics of the code enforcement lien by answering a question posed by the City Attorney for the City of Tallahassee in Advisory Legal Opinion AGO 86-10. The review concluded that the law does not allow for the continuation of a fine against property in noncompliance for code violations following the entering of a lien against a property and that the original lien may not be amended for accumulation of a fine after the lien is filed or recorded. This is also true of a repeat violation of a previous order and a hearing and a new order imposing a penalty for a separate and distinct lien is required. Further clarification was also provided in a similar opinion which acknowledged that a lien must be extinguished if it is paid, without respect to noncompliance.
The lien is an instrument which serves to force payment of the fine which was ordered by an administrative board or special magistrate after failure to comply with an order of the board or magistrate. The potential for receiving a fine is the principal deterrent to remaining in violation of local codes and ordinances. This makes sense because the purpose of the lien is to obtain payment for a fine that is owed, not as an incentive for bringing a property into compliance after it is filed. The purpose of code enforcement is to ensure compliance with codes and ordinances, not to impose penalties. Adequate time and mechanisms to obtain additional time to bring properties into compliance are required by law. It would however, be in the best interest of a violator to bring the property into compliance or find some other means of remedies for the property violations, in order to prevent receiving additional violations and subsequent penalties. In most cases, if property owners work closely with code enforcement personnel, most cases do not result in liens being placed for minor violations because compliance is the ultimate goal.
This article was designed to provide accurate and authoritative information in regard to the subject matter covered. It was written with the understanding that the author is not engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.