Legal Question in Real Estate Law in Florida
judgment lien on homestead property & sale closing
Our closing date is in less than two weeks. Our house is homestead exempt & we plan to use the proceeds to buy another. We've just been told the title company found a $2000 money judgment which should be exempt from being a lien against homestead proceeds. We sold by owner & our attorney has done an excellent job, but he is quite elderly & said the 2005 homestead law is beyond his purview. He said we would have to retain another attorney to deal with this issue. Apparently we need to file a special ''Declaration of Homestead,'' & the lien holder has 45 days to challenge it. This would delay closing which is something we cannot do, but it is our understanding that the lien amount can be held in escrow until resolved & the closing can occur as scheduled. Also, we would need a separate bank account so as not to commingle exempt funds. Would the attorney handle this also? Is it proper to hire a separate attorney to handle this without conflicting with the attorney we hired for the sale? If possible we would like to save at least part of the $2000 that would have been exempt anyway if we had known about it earlier. Also, can the attorney's fees be deducted from the proceeds without losing the exemption on the balance?
2 Answers from Attorneys
Re: judgment lien on homestead property & sale closing
NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.
Before proceeding with the Declaration, has your attorney determined that the judgment is still valid? Can it be settled in a timely manner for less than the cost of the filing of the Declaration? I often find either of these to be areas that are neglected by attorneys who are not truly comfortable with the closing and negotiation process.
Second, I do not understand why your closing attorney cannot handle this matter unless he simply does not know the procedures. It is a relatively straight forward action to determine that the property is your homestead.
If the closing agent is willing to close with enough monies to satisfy the judgment in escrow while the Declaration is filed, then you are best served. The proceeds of the sale can be held by your attorney in escrow so as to preserve your homestead status. This would not be a conflict of interest. The attorney's fees and costs can be deducted from your closing proceeds if the attorney agrees.
I am located in Miami-Dade County. Please feel free to contact my office if I may be of service to you.
Scott R. Jay, Esq.
Re: judgment lien on homestead property & sale closing
I am familiar with the procedure to declare this property your homestead and it is also necessary that you specifically set up a homestead account to receive the net proceeds of the sale of your homestead. If the title company will escrow the funds necessary to satisfy the judgment than you can retrieve them after the lien holder's time to challenge the homestead claim has been exhausted. In this situation you could retain my law firm to assist you in the closing transaction involving the setting up of the homestead account and the process to notify the lien holder so that eventually your homestead proceeds would be payable to you. My attorney fees can be deducted from the closing proceeds without losing the exemption. If you would like to retain my law firm please send me an email immediately or call my office on Monday, April 9th, as it seems like time is of the essence.
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