If a lien is placed on your personal or business assets, the effects can have serious consequences. You can be prevented from refinancing your property, taking out a loan, or using your assets. Furthermore, your credit suffers. Each citizen, however, has certain due process rights to prevent governmental agencies from improperly placing liens on one’s property without property notice and hearing. One California resident recently claimed that one California governmental agency violated her due process rights when placing a lien on her property.
California Challenges Lien Placed by California Department of Toxic Substances Control
In Van Horn v. Department of Toxic Substances Control, Marilyn Van Horn challenged that the procedures used by the Department of Toxic Substances Control to place a lien on real property violated the landowner’s due process rights. Van Horn owns a 64-acre site in Jackson, California comprised of five parcels, which includes an 11-acre portion of (historical) arsenopyrite mine tailings, known as “Tim’s Corner.”
In 1998 after performing testing on the property, the Department constructed a fence around Van Horn’s property and posted a lien for almost $250,000 pursuant to California’s Superfund statute. The statute “sets forth a comprehensive regulatory scheme and authorizes the Department, among other things, to investigate, remove and/or remediate hazardous substances at contaminated sites.” Any costs or damages incurred by the Department under the statute constitute a claim or lien upon the property. The statute also establishes that a lien shall be subject to certain and notice and hearing procedures required by due process.
In 2007, the Department made an imminent or substantial endangerment determination regarding the property and Van Horn requested an evidentiary hearing to contest the determination. The Department did not provide a Van Horn a hearing and sent a letter to Van Horn with a basis for its determination. Then, without notice, the Department secured property inspection warrants in 2008 and 2010.
What happens when the State of California ups the ante? Does a property holder have the right to due process in California? Call us at 866-631-3470 for a free consultation, or check back tomorrow for “Part 2”.