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The foregoing
is a retyped exact version of original letters received by
Florida Homestead Services, LLC. The legal opinion was issued
in direct response to one of our clients being denied the
filing of his homestead asset protection claim in Ocala by the
Clerk of the Circuit Court, Office of the Marion County
Recorder. Our clients' written complaint to both the State
Attorney General and State Representative Baxley prompted the
below correspondence, which fully supports and defends our
services, forms and process. A copy of the original version
may be obtained, upon request, by contacting Representative
Baxley or the Attorney General Charlie Crist, or by clicking here.
You can also view the original correspondence from the
Attorney General by clicking here. |
The
Capitol PL-01
Tallahassee
,
FL
32399-1050
850-414-3300
Advisory
Legal Opinion - AGO 2005-17
Number: AGO 2005-17
Date:
March 29, 2005
Subject: Official records, recording documents
The
Honorable David R. Ellspermann
Clerk of the Circuit Court
Marion County
Post Office Box 1030
Ocala, Florida 34478-1030
RE: CLERK OF COURTS–OFFICIAL
RECORDS HOMESTEAD DECLARATIONS–authority of clerk of courts to
record declarations of homestead and head of household affidavits.
ss. 28.222 and 222.01, F.S.
Dear Mr. Ellspermann:
You ask substantially the
following question:
Does a "Designation
of
Homestead
" or "Head of
Family Affidavit" created by an individual and offered for
recording in the Official Records comply with the statutory
requirements for recording under
Florida
law?
You have provided copies
of a "Designation of Homestead" and a "Head of Family
Affidavit" that was presented to your office for recording, but
refused due to their not being in compliance with Florida Statutes.
The individual has complained to this office regarding your failure
to record the documents he has offered. You have asked this office
to determine whether the documents provided meet the statutory
requirements for recording.
Initially, I would note
that this office has no enforcement powers over the clerks of courts
of this state, nor can we make factual determinations as to whether
a particular document may be recorded. It is the duty of the clerk
of court to make such a determination, and in the event an
individual claims that the clerk has failed to carry out his or her
ministerial duty to record a document, the aggrieved individual may
seek a mandamus order compelling the clerk to act.[1]
Section 28.222, Florida
Statutes, provides that the clerk of court "shall be the
recorder of all instruments that he or she may be required or
authorized by law to record in the county where he or she is
clerk."[2] The statute enumerates certain instruments that must
be recorded and recognizes the clerk's responsibility to record,
upon payment of the service charges prescribed by law, "any
other instruments required or authorized by law to be
recorded."[3] It has been the position of this office that the
clerk of court is a ministerial officer whose authority and
responsibility are derived from both constitutional and statutory
provisions.[4] Thus, this office has determined that if an
instrument is entitled to be recorded, it must be recorded by the
clerk if properly executed and upon payment of the clerk's fee.[5]
In performing this duty, the clerk of circuit court acts in a purely
ministerial capacity and has no discretion.[6]
However, this office has
also stated that the clerk of court may not accept for recording in
the official records any document that the law does not authorize or
require him or her to record. In Attorney General Opinion 90-69,
this office considered whether the clerk of court must record
documents not identified in section 28.222, Florida Statutes, such
as living wills, child custody agreements between parties without
court approval, foreign state birth certificates, foreign country
birth certificates and documents in a foreign language without an
English translation. The opinion focused on the limitation upon the
authority of the clerk to perform only those duties authorized by
law and recognized the statutory mandate that the clerk record
"all instruments that he or she may be required or authorized
by law to record in the county where he or she is clerk." Based
on these considerations, this office concluded that the clerk is not
authorized to record any document or instrument that is not
specifically required or authorized to be recorded by section
28.222,
Florida
Statutes, or by any other
provision of law.
Pertinent to your inquiry,
section 222.01(1), Florida Statutes, states:
"Whenever any natural
person residing in this state desires to avail himself or herself of
the benefit of the provisions of the constitution and laws exempting
property as a homestead from forced sale under any process of law,
he or she may make a statement, in writing, containing a description
of the real property, mobile home, or modular home claimed to be
exempt and declaring that the real property, mobile home, or modular
home is the homestead of the party in whose behalf such claim is
being made. Such statement shall be signed by the person making
it and shall be recorded in the circuit court." (e.s)
While section 222.01,
Florida Statutes, does not prescribe a form to be used when making a
declaration of homestead, it does set forth the necessary elements
constituting a declaration of homestead.[7] To the extent the
document presented by an individual for recording constitutes a
"Declaration of Homestead" contemplated by section
222.01(1), Florida Statues, the clerk of court is required by law to
record such document. However, the clerk's acceptance and recording
of the document does not ensure the legal effect of such document.
Rather, the clerk is merely performing his or her ministerial duty.
I have not found a
statutory provision, nor has one been drawn to my attention, for a
"Head of Family Affidavit" to be recorded by the clerk of
court. As discussed above, absent such a statutory direction the
clerk is not authorized to record such a document.
Sincerely,
Charlie Crist
Attorney General
CC/tls
-------------------------------------------------------------------
[1] See Melkonian
v. Goldman, 647 So. 2d 1008 (Fla. 3rd DCA 1994) (mandamus used
to enforce established legal right by compelling person in official
capacity to perform an indisputable ministerial duty required by
law).
[2] Section 28.222(1),
Fla.
Stat.
[3] Section 28.222(3)(h),
Fla.
Stat.
[4] See Ops. Att'y
Gen.
Fla.
79-70 (1979); 86-38
(1986); 97-67 (1997) and 98-65 (1998). See also Alachua County v.
Powers, 351 So. 2d 32, 35 (
Fla.
1977).
[5] See Op. Att'y
Gen. Fla. 75-309 (1975) (clerk is required to record any deed
properly executed upon proper payment of the clerk's service charge
if such deed is otherwise entitled to be recorded under s. 28.222,
Fla. Stat.). And see Op. Att'y Gen. Fla. 67-6 (1967) (clerk
has no duty, responsibility or authority to examine an instrument
presented for filing to determine if the requisites of the Uniform
Commercial Code have been met except that statute requires clerk to
insure that instrument contains a statement to the effect that the
documentary stamp tax has been paid).
[6] See Op. Att’y
Gen.
Fla.
91-18 (1991) and cases
cited therein.
[7] Cf., e.g., LexisNexis
Florida
Real & Personal
Property Forms, Form 14.01
Homestead
Declaration, Where
Property Has One Declared Owner.
[FHS
NOTE: Head of Family affidavits per F.S. 222.11, 12; F.S. 77.041(1)
are filed in the court case record.]
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
OFFICE OF THE ATTORNEY GENERAL
Opinion Division
CHARLIE
CRIST
FL 01 The Capitol
ATTORNEY
GENERAL
Tallahassee, Florida 32399-1050
STATE
OF
FLORIDA
(850) 414-3300
________________________________________________________________________________________________________
February 8, 2005
The
Honorable Dennis Baxley
Representative,
District 24
111
Southwest 25th Avenue
Ocala,
Florida 34471-9179
Dear Representative
Baxley,
You have asked for a
review of section 222.02 Florida Statutes. The following general
comments are offered in an effort to provide assistance.
Section 222.01,
Florida Statutes, authorizes the designation of homestead property
[1] in order to shield it from forced sale under any process of law.
The protection against forced sale of homestead property originates
in section 4, Article X of the Florida Constitution. It has been
found that the constitutional prohibition against the forced sale of
a Florida homestead precludes the use of process to force the sale
and does not invalidate a debt or lien, but makes such unenforceable
against the property. [2] There is no protection, however, from
liens or judgments arising from "the payment of taxes and
assessments thereon,...improvement or repair thereof, or obligations
contracted for house, field or other labor performed on the realty.
[3]
Section 222.02,
Florida Statutes, provides:
'Whenever a levy is
made upon the lands, tenements, mobile home, or modular home of such
person whose homestead has not been set apart and selected, such
person, or the person's agent or attorney, may in writing notify the
officer making such levy, by notice under oath made before any
officer of this state duly authorized to administer oaths, at any
time before the day appointed for the sale thereof, of what such
person regards as his or her homestead, with a description thereof;
and the remainder only shall be subject to sale under such levy.'
This statute provides
a means to protect homestead property from forced sale where such
property has not previously been set apart as homestead, but would
otherwise qualify as homestead as evidenced by written notification
under oath. There is no distinction as to what may or may not
constitute a levy, but as noted above, homestead property is
protected from judicial process to enforce a debt or lien other than
under the specifically enumerated exceptions. In bankruptcy
proceedings, however, where a debtor has used non-exempt assets to
purchase a homestead and the transaction was made with the intent to
hinder, delay or defraud a creditor, a debtor will be denied
homestead protection. [4]
I trust that these
informal comments will be of assistance in your evaluation of
section 222.02, Florida Statutes. Should you have further questions
regarding the application of the statute to particular facts, please
do not hesitate to contact this office.
Sincerely,
/s/ Lagran Saunders
Assistant Attorney
General
LS/tfl
______________________________________________________________________________________________________
Footnotes:
[1] Section 4(a)(1),
Art. X, Fla. Const., prescribes homestead as follows:
"...if
located outside a municipality, to the extent of one hundred sixty
acres of contiguous land and improvements thereon, which shall not
be reduced without the owner's consent by reason of subsequent
inclusion in a municipality; or if located within a municipality, to
the extent of one-half acre of contiguous land, upon which the
exemption shall be limited to the residence of the owner or his
family;"
[2]
Fong v. Town of Bay Harbor Islands, 864 So.2d 76 (Fla. 3rd DCA 2003)
(constitutional prohibition against forced sale of homestead
property prevents town from imposing lien on owner's real property
for continuing code violations where property had not lost its
homestead status); Miskin v. City of Fort Lauderdale, 661
So.2d 415 (Fla. 4th DCA 1995) (lien for code violation not
enforceable against homestead property).
[3]
Section 4(a), Art. X, Fla. Const. See also In re Clements,
194 B.R. 923, 925 (M.D. Fla. 1996) (homesteads in Florida may not
used to satisfy court judgments, except: unpaid property taxes for
homestead itself, mortgages for purchase or improvements of
homestead itself, or mechanic's lien's for work performed on
homestead).
[4]
See In re Lapea, 254 B.R. 501, 507 (M.D. Fla. 2000), citing Palm
Beach Savings & Loan Ass'n v. Fishbein, 619 So.2d 267, 270
(Fla. 1993) (homestead cannot be employed as an instrumentality of
fraud).
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