Thursday, September 18, 2008

4th District - Court Enforcement Orders Cloud TItle

In Henly v. McDonald, 971 So.2d 998 (Fla. 4th DCA 2008), the court found that the existence of a code enforcement action against property constitutes a cloud on the title. This case involved a dispute over a home sale when the code enforcement action was brought while the property was under contract, but the key finding is critical in other areas.

By clouding title to the property, the imposition of a code enforcement order or lien impugns the property and therefore implicates the due process clause -- substantive and procedural - and could involve 42 USC 1983 - including damages if the order is improperly applied or prosecuted.

Section 162.06(5) provides that setting a code enforcement matter for hearing puts notice disclosure requirements on a property owner selling the property. Harm therefore can attach to the property owner based only on the code enforcement officer's non-noticed, non-hearing determination that a violation exists. The statute therefore creates the possibility of
a pre-hearing deprivation of property. This is in addition to the (uncorrected) problems in the statute and many ordinances identified in Massey v. Charlotte County and Wilson v. County of Orange.

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