Barrett Henry is a Broker Associate at REMAX Collective with 23+ years of Florida real estate experience. He helps Florida homeowners and investors navigate complex lien issues during foreclosure across all 67 Florida counties. Direct service in Tampa Bay; referral connections statewide.
One of the least-discussed complications in Florida foreclosure is what happens to government-imposed liens -- including those arising from code enforcement actions related to accessibility violations. Whether you are a homeowner trying to sell before foreclosure, an investor buying at a Florida foreclosure auction, or a lender evaluating title risk, understanding which government liens survive the sale and which are extinguished is essential.
ADA vs. Code Enforcement: Two Very Different Animals
The Americans with Disabilities Act (ADA, 42 U.S.C. 12101 et seq.) and Florida building code enforcement liens under F.S. 162.09 are frequently confused but operate completely differently in the context of real property law:
- ADA violations do not create automatic property liens. The ADA is a federal civil rights law enforced through lawsuits, Department of Justice actions, and private complaints. An ADA violation is an obligation tied to the use and operation of a place of public accommodation -- it follows the use, not the deed. A foreclosure sale does not extinguish the obligation to comply with the ADA; the new owner must bring the property into compliance.
- Code enforcement liens under F.S. 162.09 are different -- these are recorded against the property in county official records after a municipality issues a code enforcement order, gives the owner an opportunity to cure, and then reduces unpaid fines to a lien. These liens behave like judgment liens and can survive or be extinguished by foreclosure depending on when they were recorded relative to the mortgage being foreclosed.
Understanding this distinction matters enormously if you are buying a commercial property at a Florida foreclosure auction. Learn about the full Florida foreclosure process and what encumbrances follow the property through a judicial sale.
Which Properties Are Subject to ADA Accessibility Requirements?
The ADA applies to three categories of entities:
- Title I -- employers with 15 or more employees
- Title II -- state and local government programs and facilities
- Title III -- places of public accommodation and commercial facilities (restaurants, hotels, retail stores, medical offices, theaters, and more)
Single-family homes, private residential condominiums (not open to the public), and personal residences are NOT places of public accommodation and are not subject to ADA Title III requirements. If you are facing foreclosure on your own home, the ADA does not create any liens against your property.
However, certain residential uses CAN implicate ADA or related laws. Group homes operating as places of public accommodation, adult care facilities licensed under Florida law, and home-based businesses with regular customer visits may trigger accessibility requirements. The Florida homestead exemption also has no bearing on ADA compliance -- they address entirely separate legal issues.
How Florida Code Enforcement Liens Work
Under F.S. 162.09, Florida municipalities and counties can:
- Issue a notice of violation with a compliance deadline
- Hold a code enforcement board hearing if the violation is not cured
- Impose daily fines (up to $1,000 per day per violation for willful violations)
- Reduce the accrued fines to a recorded lien in the official records of the county
Once recorded, the code enforcement lien is a cloud on title that affects the property's marketability. The lien accrues interest at the statutory rate. In a foreclosure, code enforcement liens are treated based on their recording date:
- Recorded before the mortgage being foreclosed: The code enforcement lien is senior and typically survives the foreclosure sale. The buyer takes the property subject to the obligation to resolve the lien.
- Recorded after the mortgage being foreclosed: The code enforcement lien is junior. If the municipality is named as a defendant in the foreclosure and served properly, the lien is typically extinguished by the foreclosure sale. If the municipality is NOT named as a defendant, the lien survives.
This is why the foreclosure complaint's defendant list matters so much. See our guide to the Florida foreclosure summons and complaint for more on how junior lienholders are joined in the action.
Accessibility-Related Code Violations That Create Florida Liens
Local code enforcement actions can include accessibility-related violations under the Florida Building Code (which incorporates accessibility standards from the 2010 ADA Standards for Accessible Design for covered facilities). Common examples include:
- Missing accessible parking spaces at commercial properties
- Ramps or entrance modifications required for licensed care facilities
- Accessible restroom requirements at businesses open to the public
- Fair Housing Act accessibility features missing from post-1991 multi-family construction
If these violations led to recorded code enforcement liens on a property that is now in foreclosure, the lien analysis follows the same rules described above. The Florida title search guide explains how to identify all liens recorded against a property before buying at a foreclosure sale or completing a pre-foreclosure sale.
Impact on Pre-Foreclosure Sales and Short Sales
If you are trying to sell your property before the foreclosure auction, any recorded code enforcement liens will appear in the buyer's title search and must be resolved at closing. This includes accessibility-related liens. Your options:
- Pay off the lien: Contact the municipality to get a payoff figure. If you can cure the underlying violation, they may reduce or waive the accrued fines.
- Negotiate a reduction: Many Florida municipalities will accept significantly less than the full accrued lien amount to resolve it, especially when the property is in financial distress.
- Include in short sale negotiations: In a short sale, the lender may agree to fund the code enforcement lien payoff from the sale proceeds as part of the approval.
- Deed in lieu coordination: In a deed in lieu of foreclosure, the lender takes the property and inherits the obligation to resolve any remaining code enforcement liens -- this can be negotiated into the deed in lieu agreement.
What Buyers at Florida Foreclosure Auctions Need to Know
Buyers at Florida foreclosure auctions take the property as-is, subject to all liens that survive the sale. This means:
- Code enforcement liens recorded before the foreclosed mortgage survive
- Government liens (property taxes, IRS) typically survive or have special redemption rights
- ADA compliance obligations follow any commercial property regardless of how it was acquired
- Senior liens (first mortgages, property taxes, municipal assessment liens) survive
Always order a complete title search before bidding at a Florida foreclosure auction. The guide to bidding at Florida foreclosure auctions explains what due diligence to complete and what survives the sale.
Free Resources for Florida Homeowners Facing Code Enforcement Issues
If code enforcement liens are complicating your foreclosure situation, free help is available. A HUD-approved housing counselor can help you understand how liens affect your sale options. Florida legal aid organizations provide free representation to income-qualifying homeowners. See our full resources page for contacts throughout Florida.
For a complete picture of how the Florida foreclosure process works and what to do if you are behind on your mortgage, see our guide to stopping foreclosure in Florida and the Florida foreclosure checklist.
Need help navigating code enforcement liens or a pre-foreclosure sale? Get free help today -- no cost, no obligation.
