A caller complained that one of his judgment creditors put a lien on his Florida homestead. The caller stated that my website said that homesteads were protected from creditors, and he wanted an explanation of how his creditor could lien his homestead. Other people from time to time have asked me to help them remove a judgment lien from their homestead. How can a creditor place a lien on a homestead when the Florida Constitution says that no judgment shall be a lien on a homestead.
A judgment creditor may record a certified copy of his judgment on the public record of any county in Florida. The recorded judgment will show up as a lien on any and all real property the debtor owns, in full or in part, in the county. The lien will record against any property for which the debtor’s name appears on the legal title.
The public record does not know what property constitutes the debtor’s current homestead. A debtor may own several houses within a county, and the debtor may have moved from a former homestead to a new address. Determination of the debtor’s current homestead is a complicated fact issue in some cases. Therefore, a judgment lien will show as an encumbrance on any and all residential property owned by the debtor.
The Florida statute Section 222.01
includes a provision by which a debtor may remove a lien from his homestead in the event the debtor wants to sell or mortgage his homestead. The statute includes a form called a Notice of Homestead which a debtor may record in the county records. The Notice is sent to all creditors who hold a judgment recorded in the county. The judgment lienor then has to initiate a legal proceeding within 45 days to contest the homestead protection. If the creditor fails to file an action within 45 days the lien shall be removed from the homestead so that the owner may sell or mortgage the property any time during the following 180 days.