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Florida's homestead law serves a compelling public purpose of promoting stability and welfare

Author johnbsims3
Admin Male

#1 | Posted: 18 Oct 2006 20:43 
Florida homestead exemption serves a compelling public purpose of promoting stability and welfare of the state by securing to the householder a home, so that householder may live beyond reach of financial misfortune. Under Florida law, homestead exemption may not be used to shield property from: (1) payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on realty. Under Florida law, intent to establish homestead is evidenced by debtor's specific acts toward creating a permanent abode which are not contradicted by debtor's subsequent behavior, thus under Florida law, homestead is established when there is actual intent to live permanently in place, coupled with actual use and occupancy. All that is required to establish homestead is that property owner reside on property and in good faith make the same his permanent home. When there is "actual intent to live permanently in a place, coupled with actual use and occupancy" the claim must be made in writing.

If a debtor does not select exempt property prior to a levy, the officer is not bound to make the exemption for the debtor, but may seize all the property. However, if the property is claimed as exempt, the officer should make an attempt to see that the exemptions are 'set apart' or 'set out'. Failure to set apart the property under levy constitutes a waiver of that exemption. Also, creditors are presumed to know the law and its provisions as to homestead exemptions, and have it within their power to protect themselves by taking such steps as will assure them against loss.

The homestead must be selected and claimed by the homestead claimant by making, signing, and acknowledging a declaration of homestead . . . which declaration must, be legally sufficient.

If no such declaration or designation of homestead claim is filed or served as herein provided, title shall not pass to the purchaser at a subsequent sale free and clear of all homestead rights if there is a judgment against the owner. The statutes must be read together and the most reasonable construction is that the homestead is immune from judgment lien, execution or forced sale, providing a formal declaration of the existing exemption is made and filed in the court record prior to the time set for sale or execution.
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Author johnbsims3
Admin Male

#2 | Posted: 22 Oct 2006 05:57 | Edited by: johnbsims3 
Purpose of laws; public policy; preservation of home

Homestead laws are founded on considerations of public policy,[FN32] their purpose being to promote the stability and welfare of the state[FN33] by encouraging property ownership[FN34] and independence on the part of the citizen,[FN35] and by preserving a home where the family may be sheltered and live beyond the reach of economic misfortune.[FN36] More specifically, the primary purpose of the homestead provisions is to place the property designated as a homestead out of reach of creditors while it is occupied as a home[FN37] or, as otherwise stated, to secure to a debtor and his family necessary shelter from creditors.[FN38]

Provisions exempting homesteads from forced sale have been said to be intended to guarantee that the homestead will be preserved against any involuntary divestiture by the courts.[FN39] The statutes are intended to secure to the householder a home for himself and his family, and, in case of his death, for the surviving members of his family,[FN40] regardless of his financial condition as solvent or insolvent[FN41] and without reference to the number of his creditors[FN42] and without any special regard to the extent of the estate or title by which the homestead property may be owned.[FN43]

The laws are not based on the principles of equity, nor do they in any way yield thereto; their purpose is to secure the home to the family even at the sacrifice of just demands, the preservation of the home being deemed of paramount importance.[FN44] On the other hand, while recognizing that the purpose of the exemption is to protect the family and/or guarantee the family some place to live, it has also been held that the right to claim a homestead exemption is not unlimited and the court may consider the equities of the situation.[FN45]

Cases:
The purpose of the "Save Our Homes" amendment limiting annual increases in property tax assessments is to encourage the preservation of homestead property in the face of ever increasing opportunities for real estate development, and rising property values and assessments; the amendment supports the public policy favoring preservation of homesteads. West's F.S.A. Const. Art. 7, 4(c). Zingale v. Powell, 885 So. 2d 277 (Fla. 2004).
[FN32] Commonwealth Nat. Bank v. U.S., 573 F. Supp. 881, 83-2 U.S. Tax Cas. (CCH) 9636, 52 A.F.T.R.2d (P-H) 83-5996 (N.D. Tex. 1983); In re Ehnle, 124 B.R. 361 (Bankr. M.D. Fla. 1991) (not followed on state law grounds, In re Loeb, 1993 WL 837912 (Bankr. D. Mont. 1993)); Walker v. Hayes, 248 Ala. 492, 28 So. 2d 413 (1946); In re Estate of Nicole Santos, 648 So. 2d 277 (Fla. Dist. Ct. App. 4th Dist. 1995); Bartold v. Lewandowska, 304 Mich. 450, 8 N.W.2d 133 (1943); Hensley v. Fletcher, 172 Okla. 19, 44 P.2d 63 (1935); Osborn v. Warner, 694 P.2d 730 (Wyo. 1985).
[FN33] In re Grindal, 30 B.R. 651 (Bankr. D. Me. 1983); In re Ehnle, 124 B.R. 361 (Bankr. M.D. Fla. 1991) (not followed on state law grounds, In re Loeb, 1993 WL 837912 (Bankr. D. Mont. 1993)); In re Colwell, 208 B.R. 85, 38 Collier Bankr. Cas. 2d (MB) 3 (Bankr. S.D. Fla. 1997) (distinguished on other grounds by, In re Pastrana, 216 B.R. 948 (Bankr. D. Colo. 1998)); Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988); Hein v. Wahl, 170 Okla. 402, 40 P.2d 683 (1935); In re Banfield's Estate, 137 Or. 167, 296 P. 1066, 89 A.L.R. 504 (1931), modified on other grounds, 137 Or. 167, 298 P. 905 (1931); Andrews v. Security Nat. Bank of Wichita Falls, 121 Tex. 409, 50 S.W.2d 253, 83 A.L.R. 44 (1932).

The homestead exemption exists to prevent citizens from becoming dependent on the state for support. Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603 (Ct. App. 1997), reh'g denied, (Sept. 18, 1997) and cert. denied, (Apr. 10, 1998).
[FN34] In re Grindal, 30 B.R. 651 (Bankr. D. Me. 1983); In re Colwell, 208 B.R. 85, 38 Collier Bankr. Cas. 2d (MB) 3 (Bankr. S.D. Fla. 1997) (distinguished on other grounds by, In re Pastrana, 216 B.R. 948 (Bankr. D. Colo. 1998)); Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257 (1911); Volker-Scowcroft Lumber Co. v. Vance, 32 Utah 74, 88 P. 896 (1907).
[FN35] In re Colwell, 208 B.R. 85, 38 Collier Bankr. Cas. 2d (MB) 3 (Bankr. S.D. Fla. 1997) (distinguished on other grounds by, In re Pastrana, 216 B.R. 948 (Bankr. D. Colo. 1998)); Matter of Estate of Dodge, 685 P.2d 260 (Colo. Ct. App. 1984); Hill v. First Nat. Bank, 79 Fla. 391, 84 So. 190, 20 A.L.R. 270 (1920) (declined to extend on other grounds by, In re Levine, 134 F.3d 1046, Bankr. L. Rep. (CCH) 77625 (11th Cir. 1998)).

The purpose of the homestead exemption is to ensure that debtors possesses the means to avoid absolute destitution. Matter of Marriage of Beardslee, 22 Kan. App. 2d 787, 922 P.2d 1128 (1996), review denied, (Sept. 26, 1996) and related reference, 209 B.R. 1004, 38 Collier Bankr. Cas. 2d (MB) 584 (Bankr. D. Kan. 1997).

The purpose of the statutory homestead exemption is to preserve the homes of judgment debtors and their families and yet leave them at liberty to change homesteads by sale, or to remove for temporary convenience, without forfeiting the exemption. Moore v. Krueger, 179 Wis. 2d 449, 507 N.W.2d 155 (Ct. App. 1993), review dismissed, 513 N.W.2d 408 (Wis. 1993).
[FN36] In re Schriock, 192 B.R. 514 (Bankr. D.N.D. 1995); In re Ehnle, 124 B.R. 361 (Bankr. M.D. Fla. 1991) (not followed on state law grounds, In re Loeb, 1993 WL 837912 (Bankr. D. Mont. 1993)); Montgomery v. Dane, 81 Ark. 154, 98 S.W. 715 (1906); Matter of Estate of Dodge, 685 P.2d 260 (Colo. Ct. App. 1984); Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988); Williams v. Dorrell, 714 So. 2d 574 (Fla. Dist. Ct. App. 3d Dist. 1998), reh'g denied, (Aug. 5, 1998); Bank of Illmo v. Simmons, 142 Ill. App. 3d 741, 97 Ill. Dec. 4, 492 N.E.2d 207 (5th Dist. 1986); Bohl v. Bohl, 234 Kan. 227, 670 P.2d 1344 (1983); Jones v. Crawford, 119 Ky. 554, 27 Ky. L. Rptr. 191, 84 S.W. 568 (1905); Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257 (1911); Jackman v. Nance, 109 Nev. 716, 857 P.2d 7 (1993); Hensley v. Fletcher, 172 Okla. 19, 44 P.2d 63 (1935).

The purpose of the homestead provision is to protect and foster the family home. In re Goode, 146 B.R. 860 (Bankr. M.D. Fla. 1992).
[FN37] In re Mueller, 215 B.R. 1018 (Bankr. 8th Cir. 1998); In re Flatt, 160 B.R. 497, 29 Collier Bankr. Cas. 2d (MB) 1253 (Bankr. N.D.N.Y. 1993); In re Haas, 165 F. Supp. 488 (D. Colo. 1958); Smith v. James A. Merrill, Inc., 64 Cal. App. 4th 94, 75 Cal. Rptr. 2d 108 (4th Dist. 1998); Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988); Dwyer v. Cempellin, 424 Mass. 26, 673 N.E.2d 863 (1996); Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603 (Ct. App. 1997), reh'g denied, (Sept. 18, 1997) and cert. denied, (Apr. 10, 1998); Gunn v. Gunn, 505 N.W.2d 772 (S.D. 1993).

The Texas Constitution protects a homestead from a forced sale for the payment of all debts. In re Osborn, 176 B.R. 217, 26 Bankr. Ct. Dec. (CRR) 606 (Bankr. E.D. Okla. 1994), appeal decided, 83 F.3d 433 (10th Cir. 1996).
[FN38] In re Weinstein, 217 B.R. 5 (D. Mass. 1998); In re Ross, 210 B.R. 320 (Bankr. N.D. Ill. 1997); In re Moneer, 188 B.R. 25, 43 Fed. R. Evid. Serv. (LCP) 135 (Bankr. N.D. Ill. 1995); In re Martin, 875 P.2d 417 (Okla. 1994).

The rationale for the homestead exemption for certain of a debtor's property or a debtor's right to receive certain property is to protect from creditors a certain portion of the debtor's property. Cerny v. Salter, 311 S.C. 430, 429 S.E.2d 809 (1993).

The purpose of the homestead exemption is to protect the debtor from being left destitute by the creditor process. In re Latham, 182 B.R. 479 (Bankr. W.D. Va. 1995).
[FN39] Thorsby v. Babcock, 36 Cal. 2d 202, 222 P.2d 863 (1950); Butterworth v. Caggiano, 605 So. 2d 56, 16 A.L.R.5th 1118 (Fla. 1992) (not followed on state law grounds, Tellevik v. Real Property Known as 6717 100th Street S.W. Located in Pierce County, 83 Wash. App. 366, 921 P.2d 1088 (Div. 2 1996)) and (distinguished by, In re Kravitz, 225 B.R. 515 (Bankr. D. Mass. 1998)).
[FN40] Matter of Claflin, 761 F.2d 1088 (5th Cir. 1985); In re Jones, 106 F.3d 923 (9th Cir. 1997) (disagreed with on other grounds by, Teaman v. Wilkinson, 59 Cal. App. 4th 1259, 69 Cal. Rptr. 2d 705 (2d Dist. 1997)) and (disagreed with on other grounds by, Smith v. James A. Merrill, Inc., 64 Cal. App. 4th 94, 75 Cal. Rptr. 2d 108 (4th Dist. 1998)); Sims v. Cox, 611 So. 2d 339 (Ala. 1992); Thorsby v. Babcock, 36 Cal. 2d 202, 222 P.2d 863 (1950); Karsznia v. Kelsey, 262 S.W.2d 844 (Mo. 1953).
[FN41] Matter of Lombard, 739 F.2d 499, Bankr. L. Rep. (CCH) 69952 (10th Cir. 1984); In re Haas, 165 F. Supp. 488 (D. Colo. 1958); Sims v. Cox, 611 So. 2d 339 (Ala. 1992); Walker v. Hayes, 248 Ala. 492, 28 So. 2d 413 (1946); Matter of Estate of Dodge, 685 P.2d 260 (Colo. Ct. App. 1984).
[FN42] Scofield v. Hopkins, 61 Wis. 370, 21 N.W. 259 (1884).
[FN43] Deere v. Chapman, 25 Ill. 610 (1861); Sears v. Hanks, 14 Ohio St. 298, 1863 WL 16 (1863).

Some of the homestead provisions are designed to protect the family while both husband and wife are living, regardless of which one of them is vested with title to the land occupied as the homestead. In re Carothers' Estate, 196 Okla. 640, 167 P.2d 899 (1946).
[FN44] Hill v. First Nat. Bank, 79 Fla. 391, 84 So. 190, 20 A.L.R. 270 (1920); Hammond State Bank & Trust Co. v. Broderick, 179 La. 693, 154 So. 739 (1934); Grace v. Grace, 96 Minn. 294, 104 N.W. 969 (1905); Bunker v. Coons, 21 Utah 164, 60 P. 549 (1900); Burch v. Monroe, 67 Wash. App. 61, 834 P.2d 33 (Div. 1 1992).
[FN45] In re Glaze, 169 B.R. 956 (Bankr. D. Ariz. 1994).
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Basics About Exemptions Florida Homestead Services - Florida Homestead Exemption Act Forum / Basics About Exemptions /
Florida's homestead law serves a compelling public purpose of promoting stability and welfare
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