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Continuous Use & Residency regarding homestead

Author johnbsims3
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#1 | Posted: 20 Oct 2006 16:45 | Edited by: johnbsims3 
Continuous Use & Residency

The purpose of the homestead exemption is to protect a debtor and his or her family in a home from forced sale on execution or attachment. See Fisher v. Kellogg, 128 Neb. 248, 258 N.W. 404 (1935). Any interest in real estate, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Mainelli v. Neuhaus, 157 Neb. 392, 59 N.W.2d 607 (1953). See, also, Fisher v. Kellogg, supra. It is not necessary that the ownership be of an estate in fee simple, but any interest, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Id.

Although the Constitution limits the quantity of homestead property that may be exempted, it does not define or limit the estates therein to which the exemption may apply.[FN72] It is established that the claimant need not hold a fee simple title in the property,[FN73] nor even a freehold estate therein.[FN74] For the purposes of the homestead exemption, it is enough if the one claiming the homestead exemption has any beneficial interest in the property; it is not necessary that he hold any legal title to the property.[FN75] Indeed, the homestead exemption extends to any right or interest the claimant may hold in land.[FN76] But property in which another has a life estate cannot be the homestead of one who has the remainder interest.[FN77] The reason for this rule is that the holder of a remainder interest in property in which another has a life estate as her home place, has no right to the occupancy of such property as his home place until the life estate has terminated, and therefore cannot claim homestead exemption in such property. By the great weight of authority the claim of homestead may not attach to either vested or contingent future estates or interests in land, because a remainder expectant upon cessation of the preceding estate creates no present right to possession and is not susceptible to immediate occupancy by the remainderman.[FN78] The consent by a life tenant to a remainderman's occupancy does not divest the life tenant of a paramount present interest.[FN79]


Cases:
Florida homestead exemption law does not distinguish between different types of ownership interests in determining whether debtor may claim homestead exemption for his or her ownership interest in land. West's F.S.A. Const. Art. 10, 4. In re Ballato, 318 B.R. 205 (Bankr. M.D. Fla. 2004).
An individual claiming a homestead exemption need not hold fee simple title to the property. Fla. Const. Art. 10, 4. Callava v. Feinberg, 864 So. 2d 429 (Fla. Dist. Ct. App. 3d Dist. 2003), reh'g denied, (Jan. 30, 2004).
Constitutional provision exempting a homestead from forced sale does not designate how title to the property is to be held and it does not limit the estate that must be owned. Fla. Const. Art. 10, 4. Callava v. Feinberg, 864 So. 2d 429 (Fla. Dist. Ct. App. 3d Dist. 2003), reh'g denied, (Jan. 30, 2004).
A fee simple estate evidenced by a warranty deed is not essential for a cooperative (co-op) owner to claim the homestead exemption from forced sale under State Constitution; a life estate interest that gives the owner the right to use and possess a co-op as his or her residence may be sufficient. Fla. Const. Art. X, 4(a)(1). Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 27 Fla. L. Weekly D552 (Fla. Dist. Ct. App. 5th Dist. 2002).


[FN72] Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN73] Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946).
[FN74] Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN75] In re Wainsztein, 116 B.R. 300 (Bankr. S.D. Fla. 1990), related reference, 117 B.R. 742 (Bankr. S.D. Fla. 1990); In re Robinett, 47 B.R. 591 (Bankr. S.D. Fla. 1985).
[FN76] Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946); Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).

Estate or interest in real property to which a homestead claim may attach, 74 A.L.R. 2d 1355.
[FN77] Aetna Ins. Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969); Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN78] Aetna Ins. Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969); Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN79] Aetna Ins. Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969)

Mere possession without any title whatever is sufficient to support the claim of homestead, where such possession is lawful, as where it is with the consent and on the agreement of the owner.[FN80] Thus, a debtor whose home was located on public land and subject to a long term ground lease could claim a homestead exemption in the home.[FN81]


[FN80] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN81] In re McAtee, 154 B.R. 346 (Bankr. N.D. Fla. 1993).
Any equitable or beneficial interest in land gives the claimant the right to exempt it as his homestead.[FN86] This principle has been applied so as to entitle a husband to claim homestead property for which he has paid the consideration, though title has been taken in the name of his wife.[FN87]

Cases:
Divorced wife was entitled to claim constitutional homestead exemption, in former attorney's action seeking foreclosure of equitable lien on wife's residence for unpaid attorney fees arising out of dissolution of marriage proceeding, even though legal title to residence was held by trustee, and wife had beneficiary interest; wife did not need to hold legal title in order to claim exemption. Fla. Const. Art. 10, 4. Callava v. Feinberg, 864 So. 2d 429 (Fla. Dist. Ct. App. 3d Dist. 2003), reh'g denied, (Jan. 30, 2004).

The exemption from liens and forced sales accorded by the Constitution extends to whatever undivided interest the claimant may have in the lands which he or she may be in possession of and living on.[FN88] This rule is applicable where the homestead claimant has, in the disputed property, an undivided one-half interest.[FN89] Likewise, the claim of homestead may be sustained where it is shown that the claimant is in possession as a tenant in common.[FN90] However, a joint tenant who purchased his cotenant's portion of property would not be allowed to claim a homestead interest in the property, where he did not record the deed to the property until a creditor of the cotenant acquired a judgment lien against the property.[FN91]
The measure of the claimant's right of exemption is the quantity of his interest in the common property as limited by the amount specified by the constitutional homestead provisions. The claim may not exceed such limitations.[FN92]
A former spouse cannot create an enforceable lien on his undivided one-half interest in homestead property by executing a mortgage.[FN93] When the property loses it status as homestead, the lien would then be subject to enforcement.[FN94] However, homestead property is subject to partition and forced sale at the instance of one cotenant, where that is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.[FN95]


[FN88] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN89] Daniels v. Katz, 237 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1970).
[FN90] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN91] In re McCall, 69 B.R. 975 (M.D. Fla. 1987), related reference, 74 B.R. 666 (Bankr. M.D. Fla. 1987).
[FN92] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN93] Daniels v. Katz, 237 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1970).
[FN94] Daniels v. Katz, 237 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1970).
[FN95] Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978).

It frequently happens that a homesteader may own two separate pieces of property within the state, both of which he may occupy at intervals. It is a general principle, however, that there must be an intention to reside on the property as a permanent place of residence before a claim of homestead rights therein may be sustained.[FN17] And it seems clear that the claimant cannot have two permanent residences at the same time, the designation of one property as the home being a question of fact.[FN18] If it is shown that the owner has ceased to occupy the disputed premises and has established his residence elsewhere, he may not successfully claim a homestead right therein.[FN19]

Illustration:
Where a debtor owned and resided in a two-bedroom condominium apartment, he could not claim any part of a 160-acre tract as his homestead.[FN20]


[FN17] 39.
[FN18] McGregor v. Kellum, 50 Fla. 581, 50 Fla. 589, 39 So. 697 (1905).
[FN19] McGregor v. Kellum, 50 Fla. 581, 50 Fla. 589, 39 So. 697 (1905).
[FN20] In re Samson, 105 B.R. 124 (Bankr. S.D. Fla. 1989)

In addition to the element of occupancy of the property claimed as a homestead,[FN21] the courts require an intention to reside on it as a permanent place of residence.[FN22] Actual use and occupancy coupled with the intent to remain in the home are key qualifications for purposes of the homestead exemption.[FN23] In order to show an intent to establish a homestead, the debtor must demonstrate specific acts toward creating a permanent abode, which acts are not refuted by later behavior.[FN24] "Permanency," when used in this sense, means the presence of the intention to reside at the particular place for an indefinite period of time, and not a conclusive intent to remain there forever.[FN25] And there must be a present intention of occupying it as a homestead, manifested by an open visible act by which the intention of the owner may be apparent to others.[FN26] A Canadian citizen, present in Florida as a tourist in the company of his family, all of whom had temporary visas only, was not entitled to claim a Florida residence as his homestead, in that he could not in good faith declare an intention to reside for any fixed period of time within the United States because of the temporary nature of his visa.[FN27] Likewise, a taxpayer was not occupying the property in good faith so as to entitle her to claim a homestead exemption upon her claim that she used the property for her year-round residence where the local zoning and the articles of incorporation for the condominiums involved prohibited the use of the property as a year-round residence.[FN28] However, a house would be considered a debtor's homestead, where the debtor intended to reside in the house permanently and where he actually used the house as a residence, even though the debtor and his former wife were trying to sell the house and even though the debtor stored personal possessions elsewhere.[FN29] Similarly, debtors would be entitled to a homestead exemption, even though they spent three nights in their rented apartment between the closing and permanent occupation of their new home, as the debtors transferred some of their possessions to the new house and cleaned and fixed up the new premises during this time and as the debtors clearly intended to leave the rented apartment, which could not be claimed as a homestead.[FN30] Likewise, a debtor was allowed to claim the homestead exemption where he held a proprietary lease to a cooperative apartment unit which ran in perpetuity, where the debtor intended to and actually did occupy the premises as his residence, where he listed the address of the premises on his driver's license, and where the debtor did not own any other residence.[FN31]

CUMULATIVE SUPPLEMENT:

Cases:
To determine individual Chapter 11 debtor's right to claim protections of Florida homestead exemption law, after relocating to Florida and purchasing Florida residence shortly after entry of multimillion dollar judgment against him, bankruptcy court had to determine: (1) whether debtor was physically present in Florida for greater part of the 180 day period preceding petition date; and (2) whether debtor intended to remain in Florida indefinitely. Bankr.Code, 11 U.S.C.A. 522(b)(2)(A); West's F.S.A. Const. Art. X, 4. In re Adell, 321 B.R. 562 (Bankr. M.D. Fla. 2005), related reference, 321 B.R. 573 (Bankr. M.D. Fla. 2005).
Under Florida law, homestead is established when there is actual intent to live permanently in a place, coupled with actual use and occupancy. West's F.S.A. Const. Art. X, 4. In re Prestwood, 322 B.R. 463 (Bankr. S.D. Fla. 2005).

[FN21] 36, 37.
[FN22] Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So. 2d 448 (1943); Miller v. West Palm Beach Atlantic Nat. Bank, 142 Fla. 22, 194 So. 230 (1940).
[FN23] In re Bratty, 202 B.R. 1008 (Bankr. S.D. Fla. 1996); In re Brown, 165 B.R. 512 (Bankr. M.D. Fla. 1994); In re McCarthy, 13 B.R. 389 (Bankr. M.D. Fla. 1981); Edward Leasing Corp. v. Uhlig, 652 F. Supp. 1409 (S.D. Fla. 1987).
[FN24] In re Wilbur, 206 B.R. 1002 (Bankr. M.D. Fla. 1997), related reference, 1997 WL 375687 (Bankr. M.D. Fla. 1997), related reference, 211 B.R. 98 (Bankr. M.D. Fla. 1997), related reference, 217 B.R. 314 (Bankr. M.D. Fla. 1998).
[FN25] Engel v. Engel, 97 So. 2d 140 (Fla. Dist. Ct. App. 2d Dist. 1957).
[FN26] First Nat. Bank v. Peel, 107 Fla. 413, 145 So. 177 (1932).
[FN27] Matter of Cooke, 412 So. 2d 340 (Fla. 1982).
[FN28] Kogan v. Robbins, 594 So. 2d 355, 17 Fla. L. Weekly D681 (Fla. Dist. Ct. App. 3d Dist. 1992).
[FN29] In re Wilbur, 206 B.R. 1002 (Bankr. M.D. Fla. 1997), related reference, 1997 WL 375687 (Bankr. M.D. Fla. 1997), related reference, 211 B.R. 98 (Bankr. M.D. Fla. 1997), related reference, 217 B.R. 314 (Bankr. M.D. Fla. 1998).
[FN30] In re Krueger, 90 B.R. 553 (Bankr. S.D. Fla. 1988).
[FN31] In re Dean, 177 B.R. 727 (Bankr. S.D. Fla. 1995).
With some exceptions,[FN45] homesteads are exempt from forced sale under process of any court, and no judgment, decree, or execution can be a lien thereon.[FN46] The right of the owner to have the homestead exempt from liability in any form is deemed superior to the claim of the creditor to have the property applied to the payment of his debt.[FN47] Unless the obligation is in the excepted class, the rendition of judgment against the homestead claimant, or the levying of execution or attachment against the property, is nugatory and ineffectual.[FN48] Though the homestead interest should be protected from forced sale whenever possible, it should not be protected at the expense of others owning an interest in the property.[FN51]


Cases:
Even if child support obligor qualified to invoke homestead exemption, exemption would not automatically shield his personal property from being sold to generate funds to purge contempt for failure to make child support payments. Department of Revenue ex rel. Greene v. Bush, 838 So.2d 653.
Other than the three constitutional exceptions and the occasional equitable lien, debtor's homestead exemption is inviolable under Florida law. West's F.S.A. Const. Art. X, 4. In re Potter, 320 B.R. 753 (Bankr. M.D. Fla. 2005).
Under Florida law, each of the three exceptions to exempt nature of homestead property, for unpaid property taxes, mortgages for purchase or improvement of homestead, and mechanics' liens for work performed on homestead, is narrowly construed. West's F.S.A. Const. Art. X, 4. In re Potter, 320 B.R. 753 (Bankr. M.D. Fla. 2005).
Burden was upon creditor challenging debtor's right to Florida homestead exemption to make strong showing that debtor was not entitled to the claimed exemption. West's F.S.A. Const. Art. 10, 4. In re Ballato, 318 B.R. 205 (Bankr. M.D. Fla. 2004).
Homesteads are protected from forced sale by creditors, and restrictions are placed on a homestead owner when he or she attempts to alienate or devise the homestead property. West's F.S.A. Const. Art. 10, 4(ac). Warburton v. McKean, 877 So. 2d 50 (Fla. Dist. Ct. App. 4th Dist. 2004), reh'g denied, (June 9, 2004).
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Continuous Use & Residency regarding homestead
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