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HomeMy WebLinkAbout1994 - Riverfront Assessment Information & ChangesCity of Sebastian 1225 MAIN STREET o SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 o FAX (407) 589-5570 M E M O R A N D U M TO: Marilyn Swichkow Finance Director FROM: Jan King DATE: September_23, 1994 RE: Preliminary Assessment - Riverfront Water Service On September 23, 1994, Sandra McCann phoned me to inquire about several notices she has received regarding the preliminary assessment for the riverfront water service meeting scheduled for September 28, 1994. One of Ms. McCann's properties Townhomes. She was curious as $ .00 (as her letter stated). is located in the River Oaks to why her assessment would be After some research, I realize why this happened. The townhomes are located on one parcel of land (Map ID. #175), but have 15 different parcel ID. numbers. The assessment information for the entire property appears to have been sent to 06-31-39-00023-0001-00001.0 Marjorie Lutkemeier. The other 14 owners (including Ms. McCann) probably received letters showing $ .00 assessment. A similar condition exists on Map ID. #90. Three owners with three parcel ID. numbers are assigned to the same property. However, it would appear from the computer list that all three have been assessed $ .00. The assessment roll should reflect approximately .28 acres for this property. Several addresses have been corrected and the notification letters regarding the September 28, 1994 meeting have been sent out. The field for the street address information may be a little too small. The Sebastian Inlet Marina notices were returned because the suite number was printed as 20 instead of 201. If I can be of any further help to you regarding this matter, let me know. 10 IC .7k ` LAw Orricss or POTTER, MCCLELLAND, MARKS & HEALY, P. A. WILLLfx C. POTTER CLIFTON A. XCCLELLA.NLI, JR. DOUOLAs D. %UREs A PATRLcx F. HEALT TIMOTHY K. WILLIAMS LAVRA ft. BxTTxx nrn iQQd HARRY A JONES ,,,eJVed 01 COUNSEL Managers �Ity 13ttice Mr. Joel L. Koford City Manager City of Sebastian 1225 Main Street Sebastian, FL 32958 Dear Mr. Koford: FIRST UvioN B"x BviLUnio SUITE 400 700 SOUTH BARCOCX STREET PosT OrriCE BOX 2523 MELBOURNE, FLORIDA 32902-2523 (4077) 964.2700 FAX: (407) 723.4092 November 30, 1994 Please find enclosed Section 192.037 of the Florida Statutes, which pertains to special assessments on time-share properties. Section 718.120 of the Florida Statutes requires that all special assessments by taxing authorities shall be assessed against the condominium parcels and not upon the condominium property as a whole. 'The statute also says that no special assessments shall be assessed against recreational facilities or other common elements if such facilities are common elements or owned by the condominium association or owned jointly by the owners of the condominium parcels. Each condominium parcel shall be separately assessed for special assessments as a single parcel. The statute further states the condominium property divided into time-share property shall be assessed for special assessments as provided in Section 192.037.- Subsection 1 of Section 192.037 states for special assessments, the managing entity responsible for operating and maintaining the time-share property shall be considered the taxpayer as an agent for the time-share titleholders. If you have any additional questions, please contact me. CAM/tah Enclosures Respectfully, Q . tik `cL-`.� , 4 _ . Clifton A. McClelland, Jr. I INDIAN RIVER COUNTY D :407-770-5095 DEE 21 '94 11 ta00� hlo� 001 P-08 D„V RESOLUTION N 95- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, CONFIRMING THE SPECIAL ASSESSMENTS IN CONNECTION WITH PHASE IV OF THE WATER MAIN EXTENSION GROWTH PLAN AND PROVIDING FOR SPECIAL ASSESSMENT LIENS TO BE MADE OF RECORD. WHEREAS, the Board of County Commissioners of hiidian River County has, by Resolution No. 94-156, adopted December 6, 19941, determined to make special asseRements against certain properties to be serviced by Phase IV of, the Water Main Extension Growth Plan of the County; and WHEREAS, said resolution described the (manner in which said spacial asseBoments shall be made and how said special assessments are to be paid; and WHEREAS, the resolution was published in the 'Vero Beach Press Journal, as required by Section 206.04, Indian River County Code; and WHEREAS, the Board of County Commissioners of Indian River County ,passed Resolution No. 94-157 on December 6, 1994, which act a time and place for a public hearing at which the owners of the: properties to be assessed and other intereat.erd persons would have the nhance to be heard as to any and all complaints as to said project and said special assessmentR, and for the Board to art as required by Section 206.079 Indian River County Code; and WHEREAS, notice of the time and place of the public hearing was published in the Press Journal Newspaper on Friday, December 9, 19940 and Friday, December iia, 1994 (twice one week apart; the last being at least one week prior to the hearing) , as required by Section 206.06, Indian River County Code; and WHEREAS, the land owners of record were mailed notices at leant ten days prior to the hearing, as required by Section 206.06, Indian River County Code; and WHEREAS, the Board of County Commissioners of Indian River County on Tuesday, January 10� 1995, at 0:05 a.m. conducted tlrcI public hearing with regard to the special assessments, INDIAN RIVER COUNTY D:407-770-5095 DP06m� 21 194 11 :00 No .001 P.09 RESOLUTION NO. 95 - NOW, THEREFORE$ BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, as follows: 1. The special assessments shown on the attached assessment roll are hereby confirmed and approved, and shall remain legal, valid, and binding first liens against 1.1m properties assessecl u»til laid in full. 2. The County will record the special assessments Hnd this resolution tion , which describes the properties assessod and the amounts of the special assessments, on the pttblic records, which Sllall constitute prima facie evidence of tho validity or the special aEmessments. The resolution was moved for adoption by Commissioner , and the motion was seconded by Commiasioner , and, upon being put to a vote, this vote was as follows Chairman Viae; Chairman commissioner Commissioner Commissioner The Chairmen thereupon declared the resolution duly passed and adopted this 10th day of January, 1995. BOAR13 OF COUNTY COMM1SS10NERS Attest INDIAN RIVER. COUNTY, FLORIDA By Jeffrey K. Barton, Clerk Chairman Attachment: ASSESSMENT ROLL aw City of Sebastian .7 1= MAIN STRE=-1 M SEBASTLANI. FLORIDA 32-O58 T.E. �EHONG (407) 589-5330 M FAX (407) 589-555 MAN.SMii IAL SlJ-L.LJL" 770 Too. MOM: D -1T smm.. DATE: Tcr."AL NMCBL-R OF ?AGS (INMTJDI-NG S R. =7 YOU DO Nold"o, ALL PAGES.- PIZASE CALL (407) 589-5330 .fir T'' �• cR` ff' FLOP IDA .� STATE O OFFICE OF A31 OnxzY CtE`EB.o.L L� RoeEar A. BLrTE$woArr3 June 21, 1994 Mr. Gerald T. Buhr Zolfo Springs Town Attorney Post Office Box 1647 Lutz, Florida 33549 Dear Mr. Buhr: CO k�k,g0 4 �G 94=57 On behalf of the Town of Zolfo Springs, you ask substantially the following question: May a municipality, subject to the limitations of section 180.135, Florida Stattutes, grant automatically perfected liens for unpaid utility services against the property served or must it perfect its lien-. by. filing with the clerk of the circuit court? In sum: While a municipality may impose a lien for unpaid " utility services against the property served,, it must. perfect its lien by filing with the clerk of the circuit court in order for its claim to be. effective against creditors or subsequent purchasers for consi-. deration. Pursuant to Article VIII, section 2, Florida Constitution, as. implemented by chapter 166, Florida Statutes, municipalities in Florida have been granted broad home rule powers. Section 166.021(1), Florida Statutes, recognizes that the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, with certain enumerated exceptions .-1 I;i addition, . section 166.201, Florida Statutes, provides that a municipality may raise by user charges or fees authorized by ordinance,-..... amounts of money that are necessary for the conduct. of municipal government and may enforce their receipt.. and collection in the manner prescribed by ordinance not inconsistent with law. /IMN Mr. Gerald T. Buhr Page Two • ' 94-57 The courts have recognized the authority of a -municipality to impose a lien for the failure to pay service.charges.Z In Attorney General Opinion 84-84, this office stated that a municipality appears to possess -the power to impose by ordinance liens on all properties served by the utility system for unpaid utility service fees, and to provide -for the enforcement- of such liens. However, while a municipality possesses -home rule powers, it may not act in conflict with the provisions.of.state law. -For example, the court in City of Miami Beach v., RociQ Cor�orat; on; 3 while recognizing that concurrent legislation may -be enacted -by both the state and local government in areas riot preempted to the state, concluded that such concurrent -legislation enacted by. municipalities may not conflict with state law. -If such -conflict arises, state law prevails.` - Section 180.135, Florida Statutes,* provides: Any other provision of law to the contrary notwithstanding, no municipality may refuse services. or discontinue utility, water, -or sewer services:to the owner of any rental unit or to a tenant.or pro- spective tenant of such rental unit for non-payment of service charges incurred by-a•former accupant- of - the rental unit; and any such unpaid service charges incurred by a former occupant "will -not be the basis for any lien against the rental property except to the extent that the present tenant- or -owner benef itt.ed.:: - directly from the service provided to the former occupant. This section applies only when­the*former,., occupant of the rental unit contracted for such - services with the municipality.' Accordingly, a municipality would be'prohibited by section 180.135, Florida Statutes, from imposing a lien against rental property where tenants contracted directly for utility services. In addition, section 695.01(1), Florida Statutes," provides: HQ conveyance, transfer, or mortgage.of real property, or of aav interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice,•unless the - same shall be recorded acGordinq tolaw _ (e, s . ) The clerk of the circuit court is the recorder of*all instruments' that he may be*required or authorized by law to record in the ' Mr. Gerald T. Buhr Page Three county. where he is clerk. 6Section 28-222 (3) (a) Statutes, provides that the clerk of the circuit record the following instruments presented to him upon payment of the service charges prescribed by 94-57 Florida court shall for recording. law: Deeds, leases, bills of sale, agreements,. mortgages, not4Ces gr claims Qf lien, notices of - levy, tax warrants, tax executions, and other ingtrumenta relating tQ the ownership, transfer, encumbrance,Qf or claims a(Gainst real Qr Pez'sQnAl nrmarti Qx any interest in -it; extensions, assignments, releases, cancellations, or satisfactions of. mortgages or liens; and powers of attorney relating to any of the instru- ments. (e.s.) The Marketable Record Titles to Real Property Act.. chapter.712,, Florida Statutes, provides that in order to preserve and protect an interest in land from extinguishment by the operation of the act, a notice as prescribed therein must be filed with the clerk of the circuit court of the county where the landis situated.' Thus, the statutes require that a lien be -.recorded in order'.for the lien to be effective against other creditors or -.subsequent purchasers for valuable consideration.- A municipal -ordinance providing that the lien need not be filed with the clerk:of.*. the circuit court would appear to be in conflict with..Ehe alovie statutes. Accordingly, I am of the impose a lien for unpaid served, it must file its circuit court in order to subset 1,u,,7chasers. Sincere y Robert A. Butterworth Attorney General RAB/tgk opinion that'while.a municipality may utility services against the property lien by filing with ...the ,clerk clerk-of.the. be effective against credit6_r­s­o*r­ I Section 166.021(3), Fla. Stat. (1993), excepts from municipal regulation the subjects of annexation, merger and the exercise of extraterritorial power, any subject expressly prohibited by the constitution or expressly preempted to the state or county by the Mr. Gerald T. Buhr 94-57 Page Four constitution or by general law, or any subject preempted to th,= county pursuant to county charter. 2 Ston v. Town- of Mexico Beach 348 So. 2d 40 (Fla. 1st DCA 1977), upholding the validity of a town ordinance imposing liens - for the nonpayment of garbage collection charges. And Sep., Stel v. City of Miami Raag:h, 250 So. 2d 289 (Fla. 3d DCA .1971). 404 So. -2d 1066 (Fla. 3d DCA 1981), petitiQn fgr re"Via denied, 408 So.2d 1092 (Fla. 1981). And See, 1homas v., State 614 So. 2d 468 (Fla. 1993) (municipal ordinances are inferior J to state laws and must not conflict with any controlling provision' of statute). 4 And spa,. City Qf Cajsp.1b.=,.r7-v v. Oranap, County Vol ige Rene 12nt AssQriation,, 482 So. 2d 336 (Fla. 19-86) (if specific' conflict arises, state statute will prevail); City of ljidleah-ir.. Martinez, 402 So. 2d 602 (Fla. 3d DCA 1981), ngti-tion'fox: rev_ i X- disMisgnd, 411 So. 2d 380 (Fla. 1981) ',RinZI gr v., Ca=sQn 262 So. 2d 661, 668 (Fla. 1972) (municipality cannot forbid.whIat----` the Legislature has authorized or required, nor may -it.ailthorizei what the Legislature has forbidden); Scayglla v. ?a=andAZ,, 371 So. 2d 535 (Fla. 3d DCA 1979) (county ordinance requiring claims* against county be filed within 60 days was in conflict with and was superseded by state statute allowing 3 years for filing). err; v Citv of Miami Beach, 568 So. 2d 108 (Fla. 3'd ­DCA* 1990). I=.. s. 28.222(1), Fla. Stat. (1993). SL=j ss. 712-05 and 712.06, Fla. Stat. (1993) , re­spectli'viely- providing for the effect of filing the notice and prescribing the contents of the required notice. /001�1 I IF %S -\\[)I%( t %IHR •\%1L 1 • §S.SS will be payable each tine an additional amount is borrowed ora.future advance is made. F.S. 199.143(l). Similarl iow;; iii'tc est accrues on. the - original indebtedness under sn adjubtable rate note or mortgage. any increase in the amount of the ori,inal indebtedness is taxed as a future advance to the extent that the increase is a computable sum certain when the document _ is executed. provided that the initial interest rate adjustment period:is not less than six. months. F.S. 201.08. The practitioner should be cautious when dealing with assumptions:. of existing notes and mortgages. If the nonrecurring intangible tax has been: paid previously and the amount of the indebtedness is unchanged, no.: ` additional tax is due regardless of whether the original obligor is. released- from eleasedfrom liability for the debt. F.S. 199.145(3). When the note or mortgage is refinanced with the original obligee or an assignee, however, no additional nonrecurring tax is due if the principal balance of the new obligation is less than or equal to the unpaid principal balance of the original obligation plus accrued but unpaid interest. Additional nonrecurring intangible tax is due,.. however, if the principal balance of the new obligation exceeds the principal. balance of the original obligation plus accrued but unpaid interest -as. of... the date fi of the re nancing. In that situation, if the original obligor is not liable to the obligee under the new obligation, the nonrecurring taxis computed on the entire principal balance of the new obligation; otherwise the additional nonrecurring tax is computed on the excess of the principal. - balance of the new obligation over the principal balance of the original obligation plus accrued but unpaid interest as of the date of the refinancing,. F.S. 199.145(4). Failure to place the notation or to pay the proper tax does not affect the constructive notice of a recorded mortgage or future advance, but.affects the enforcement ability of the holder of the mortgage. See §5.6; see. also Documentary Stamp and Intangible Taxes on ,'Votes and Mortgages.,16' The Fund Concept 53,61 (July, Aug. 1984). F. (§5.55] Municipal Assessment Liens The attorney should note that municipal assessment liens are superior to all other liens, titles, and claims and remain liens until paid. F. S. 170.04.: F.S. 170.09 also provides that special assessments are payable according to the language of the applicable resolution and that the liens of- such assessments "shall remain liens. coequal with the lien of all state. county; = - district and municipal taxes."Once the assessment is approved by resolution or ordinance of the local governing authorities, the assessment is deemed' a valid and binding first lien on the assessed properties. The assessments' = 507 /dm"� %O� VR401*1 4ii I I I it i \NDINM RANCE are recurded by the city clerk in the"Improvement Lien Book." This record is evidence of the vniijity of the lien. F.S. 170.OS. The lien of an assessment improvement is purely statutory. 48 FLAJ U R.2d Special.4ssessinents §41. A problem arises, however. because of the variety of statutory sources authorizing improvement liens. F.S Chapter 170 provides for makingilkical municipal impro'vemeniES. A special assessment lien attaches to real property when the governing body of the municipality equalizes and approves the special assessment by resolution or ordinance. F.S. 170.08. This is true even if the improvements have not been completed. AGO 076-16' 3. In mann Florida cities the municipal charter provides that municipal assessments are a lien on the property assessed from the date of the passage of the resolution or ordinance authorizing the improvement. Unless satisfactory evidence is obtained from the cities confirming the absence of these liens, an owner's title insurance policy should contain an exception. as follows: Any unpaid service charges creating a lien pursuant to Chapter 159, Florida tv Statutes, or any other statute in favor of anv city, town, village. or port authority for any water, sewer, or gas system serving the land described herein. Municipal improvement liens may attach before the commencement. of improvements for which the assessment is made, notwithstanding that no svecial assessment certificate is recorded by the municipality in the office. of the circuit court ce-k. The only evidence of attachment of the lien may be the resolution or ordinance authorizing the improvement. Depending on the local practices, the title examiner may or may not have to go beyond. -.- the the abstract to determine whether the governing body of the municipality has passed a resolution or ordinance required to fix the attachment date of a special assessment lien. 7 It had been held that former F.S. 95.021. repealed by Chapter 74- 382, Laws of Florida. rendered F.S. 95-28 (now 95.281) applicable to municipal liens. Smith v. Citi. of Arcadia. 185 So.2d 762 (Fla. 2d DCA 1966); Ware v. Ciij- of Miami. 13 2 So.2d 446 (Fla. 3d DCA 1961). cert. den. 140 So.2d 302. F.S. 95.021 was enacted in 1953 and provided that the provisions of existing law"wherebyan action is barred if not commenced within twenty years, shall apply to any action by the state. or any of its agencies. or by any officer or persons on behalf of the state or any Of its. agencies. or by am county or municipal corporation of the state. /4811 LIENS -NN;(? FNC'.- %1RR.XNCES §5.57 F.S. 95.281 provides that it is applicable to the "lien of a mortgage or other instruments encumbering real property" with specific exceptions. Because municipal assessment liens are not a special exception. F.S. 95.281 probably is applicable to municipal liens. See §5.19 for information regarding the duration of liens. See Title Notes 25.03.05, 25-03.09,3 0.06.01. G. [§5.56] Liens For Unemployment Contributions F.S. 443.14I(3)(a)l creates a lien in favor of the Division of Employment Security of the Department of Commerce on all of the property, real and personal, of any emplover liable for the payment of any contribution levied and imposed under Florida's Unemployment Compensation Law. The lien attaches on the recording by the clerk of the circuit court of a notice of lien. the amount of which together Mth recording costs and interest ... shall become a lien upon the title to and interest, whether legal or equitable, in any real property, chattels real, or personal property of such employer against whom such notice of lien is issued, in the same manner as a judgment of the circuit court duly docketed in the office of such circuit court clerk with execution duly issued thereon and in the hands of the sheriff for levy.... [Emphasis added] No particular period of limitation is specified in the statute. F.S. 95.281. however. appears to apple by its term "[t]he lien of a mortgage or other instrument encumbering real property." It also might be compared to the duration of a judgment lien as covered by F.S. 55.081. VII. VENDO RS' LI ENS A. [§5.57] In General The leading Florida case on vendors' liens appears to be Alabama - Florida Co. r..tfars, I I 1 Fla. 100, 149 So. 61(1933).91 A.L.R. 139, which recognizes four classifications of so-called vendors' liens: I. The implied lien. An implied lien. properly known as a vendor's lien. -is a creature of courts of equity. founded upon the equitable presumption that, where the vendor has parted with his title and taken no security for the payment of the purchase money, the Y9 d City of ►astian i POST OFFICE BOX 780127 D SEBASTIAN, FLORIDA 32979 ' TELEPHONE (407) 589-5330 FAX (407) 589-5570