The Key To Quickly Resolving an Outstanding Code Enforcement Lien? STOP TALKING!
(About the underlying case that is.)
One of the most common problems code departments experience when citizens come in to pay or remove their liens are the laundry list of common complaints about the code enforcement case before the lien was even created. You know the complaints:
Concepts in Lien Enforcement
“But….I resolved the violations years ago.”
“The code officer was unfairly targeting me.”
“I didn’t know anything at all about the case.”
“This lien was on my mom, not me.”
“This is just so unfair.”
“I’m a sovereign citizen.”
Just think for a moment how much time your department spends trying to resolve lien settlements and how much of that time is spent addressing arguments and questions surrounding those issues and statements provided above. Well, a critical concept that departments and anyone involved in lien resolutions MUST understand is that:
None of these issues are proper subjects for discussions at any point in time after a code enforcement case is properly conducted, closed and a lien recorded.
The important legal concept that must be incorporated into the policy and practices of code enforcement departments is the need to respect the dignity and legal finality of a properly recorded code enforcement or municipal lien. Far too often, departments, individual employees and even political officials spent a great deal of time re-litigating issues related to the underlying code case. They spend time at the front desk, they ask for managers, then when this doesn’t work they start in on political or appointed officials. But after a properly conducted case is closed and the lien recorded, there exists nearly no legal basis whatsoever to challenge the facts, findings and conclusion related to that case. I will provide the case law support for this statement below, but the point that I want to make here is that departments need to first understand and respect the concept of finality in a code case and next, departments need to put into place programs that respect this concept of finality and the important legal principle behind it. The bottom line here is that the policy adopted and response to all such inquiries must be,
“I’m sorry, but the law prevents us from re-litigating the underlying case after your period for appeal has ended. If you did not appeal that code case and the lien, as much as we want to help you and be responsive to your concerns, the law prevents us from getting into those details anymore.”
First, please notice that this statement contains a critically important qualifier, “a properly conducted” case. Next, think of how much time and energy putting this into practice. Importantly, it is very important, from a legal perspective, that this legal concept of finality be respected…both by constituent citizens and by other departments and public officials. And with this concept of finality firmly in place, any discussions about lien reductions take place based on clearly established policies and protocols that serve your community interest. (i.e. all violations abated or complete waiver for new build or appropriate use.)
KEY CONCEPT: ENSURING THE INTEGRITY OF THE OVERALL CODE ENFORCEMENT PROCESS
For every step in the underlying case, great care must always be taken to properly identify the title owners of record at the beginning of the case in particular and at important milestones in the process. To this point, an important reminder must be taken into consideration. While it may be convenient to examine the information in your county’s property appraiser database to provide you information on ownership, we all know this information is not always accurate. There are a multitude of ways in which the information on the property appraiser’s website is not correct. As an example, if a property owner seeking to avoid liability or responsibility for dangerous conditions on their property marches down to the clerk of court and records a deed transferring their property to Bank of America, the clerk of court will perform their ministerial function and record that deed and the property appraiser will likewise perform their ministerial function and show the property on their records as owned by Bank of America. But that is a “wild” deed and Bank of America has no ownership, liability or notice interests in the property. Of course deeper digging in the Official Records can provide more insight and information, but remember that the only way to properly confirm ownership and interests is through a properly conducted formal title examination. (And a title insurance policy issued based on that search when real potential liability exists.)
Okay, so now you’ve confirmed that you’ve got a properly conducted and noticed code case which is the foundation upon which your code enforcement lien rests. The authority for the position that further discussion or litigation of the facts surrounding that case are no longer appropriate comes to us from a long established court case, Kirby v. City of Archer. In that case, the facts were simple. The city obtained a judgement to auction the property, but the property owner challenged the sale. The court found his time to challenge the underlying case had long passed:
The City’s lien arose from fines imposed pursuant to sections 162.06-162.11, Florida Statutes (1997), by the City’s Code Enforcement Board. The fines levied against Kirby were based upon the Board’s findings, following a hearing, that Kirby had violated section 10-21 of the Code of Ordinances of the City which prohibited the maintaining of “any abandoned vehicle partially dismantled, nonoperating, wrecked or junked vehicle or vehicle in a state of substantial disrepair” on any real property within the City. Kirby did not appeal the final order of the Code Enforcement Board which levied the fine and led to the filing of the lien under section 162.09(3).
In the foreclosure action below, Kirby filed an affidavit in opposition to the motion for summary judgment in which he stated that “all motor vehicles on [his] property were fully operable, and were capable of being started and driven.” On appeal, Kirby argues that the trial court erred in granting summary judgment in the foreclosure action because, based on his affidavit, disputed issues of fact existed as to the findings of the Board. He also contends that section 10-21 of the City’s Code of Ordinances was unconstitutionally applied against him.
Kirby makes his arguments too late. If he contested the facts raised by the Code Enforcement Board, he was obligated to present his evidence to the Board at that time. If he then disputed the final order of the Board, his remedy was to file an appeal in the circuit court pursuant to section 162.11, Florida Statutes (1997). Having failed to challenge the Board’s action, Kirby cannot raise factual disputes with the Board’s findings in the foreclosure action. “Matters determined in an order which has become final without appeal are not later subject to appellate review….”
The legal principle underlying this case provide very clear direction that must be understood and specifically put into practice and procedures in every department. First, conduct a careful examination of every procedure that underlies your code case process. Do you use proper procedures to identify ownership and recorded interests? (Title search) Do you provide proper notice. (Hand delivery, with Affidavit of Service) Do you conduct code cases that respect due process? (Proper Records and Evidence). Assuming all of that is correct and that all those boxes are checked, then the ongoing practice must be to not litigate the case or those facts again. The policy must be to cite the Kirby case and make it firmly clear that,
“While we understand your position, we have been specifically advised by our attorneys that we are not in a position to engage in any discussions related to those issues.”
CONCLUSION: Develop Abatement And Lien Release Policies That Serve Important Community Goals!
Once the concept of finality is put into place departments can and should adopt lien release policies, procedures and programs that serve community established goals of providing code enforcement lien resolutions under terms and conditions that serve clearly established policy goals. In practice, eliminating the argument and conflict over the prior case serves an important negotiating and strategic goal. The messaging is simple and effective: “We’re not fixated on what happened in the past, we want to work with you to get you and this property moving forward in a direction that serves both your interests and those of the community.”
If you found this article on Lien Enforcement interesting and useful, please SHARE it and SUBSCRIBE for future updates. In future updates, I’ll be discussing every one of the important legal cases that provide the very specific rules and procedures that MUST be followed to ensure a successful and legally compliant code enforcement program!
