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Rental of homestead

Author johnbsims3
Admin Male

#1 | Posted: 27 Dec 2006 16:49 
F.S.A. § 196.061

Florida Statutes Annotated Currentness
Title XIV. Taxation and Finance (Chapters 192-221)
Chapter 196. Exemption (Refs & Annos)
196.061. Rental of homestead to constitute abandonment


The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years. The provisions of this section shall not apply to a member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States.


CREDIT(S)
Amended by Laws 1995, c. 95-404, § 5, eff. Jan. 1, 1996; Laws 1996, c. 96-397, § 8, eff. Oct. 1, 1996.

HISTORICAL AND STATUTORY NOTES
Derivation:
Laws 1969, c. 69-55, §§ 1, 2.
Fla.St.1967, § 192.141.
Laws 1967, c. 67-459, § 1.
Laws 1959, c. 59-270, § 1.

Amendment Notes:

The 1967 amendment inserted in the second proviso the words, "or who volunteers for service as a member of the armed forces of the United States".

The 1969 amendment renumbered the section as 196.011 from 192.141.

Laws 1995, c. 95-404, § 5, eff. Jan. 1, 1996, separated the former language into three sentences; added "so long as this provision is not used for two consecutive years" at the end of the second sentence; and made nonsubstantive language and punctuation changes throughout.

Laws 1996, c. 96-397, § 8, eff. Oct. 1, 1996, at the end, deleted ", provided, however, that this section shall have no effect on the status of any property involved in litigation pending on June 12, 1959".


CROSS REFERENCES
Exemption of homestead, see Const. Art. 7, § 6; Const. Art. 10, § 4.

LAW REVIEW AND JOURNAL COMMENTARIES

Survey of Florida real property law. Ralph E. Boyer, 16 U.Miami L.Rev. 139 154 (Winter 1961).

Survey of real property law. Ralph E. Boyer, 14 U.Miami L.Rev. 638 (Summer 1960).


LIBRARY REFERENCES

1999 Main Volume
Homestead 168.
Westlaw Topic No. 202.
C.J.S. Homesteads § 117.

RESEARCH REFERENCES

Encyclopedias

FL Jur. 2d Taxation § 1490, Renting of Property.

FL Jur. 2d Taxation § 1491, Renting of Property -- Military Personnel's Property.

FL Jur. 2d Taxation § 1492, Renting of Property -- Rental of Portions of Homestead.


NOTES OF DECISIONS
In general 1
Incompetents 5
Military personnel 4
Purpose 2
Temporary renting 3

1. In general

Florida statute regarding effect of renting homestead property on one's ability to get tax credit on homestead real estate tax exemption was directed solely to tax exemption on homestead property, and not to debtor's ability to claim homestead exemption on leased property upon her bankruptcy filing. Matter of Betancourt, Bkrtcy.S.D.Fla.1993, 154 B.R. 90. Homestead 168

Rental of an apartment in an adjoining county to pursue work, in and of itself, does not constitute abandonment of the homestead when the taxpayer returns on weekends to the alleged homestead which is not rented and which is the sole property owned by said taxpayer. Whether or not abandonment has occurred must be determined from all facts and circumstances applicable to each particular situation. Op.Atty.Gen., 076-177, Aug. 23, 1976.

Whether a homestead, which was leased or rented to others for a number of years by a person who by virtue of governmental employment was required to reside elsewhere, could continue as an exempt homestead under § 7 of former Art. 10 of the Florida Constitution (see, now, Art. 7, § 6) depended upon the facts, circumstances and evidence applicable in each particular case. 1958 Op.Atty.Gen. 058-329, 058-229 (Revised), Dec. 10, 1958.
2. Purpose

The purpose of Laws 1967, c. 67-459 seemed to be to provide the benefits to all members of the armed services who had claimed a homestead exemption in the State of Florida and then by reason of the fact that such persons were members of the armed services were compelled to move to other states or overseas. 1968 Op.Atty.Gen., 068-1, Jan. 5, 1968.
3. Temporary renting

Property owner who stored furniture in attic of home and rented it on a month to month basis and lived elsewhere in order to obtain nursing to regain her health and who intended to resume occupancy of house when health permitted was not entitled to homestead tax exemption on such property. McCullough v. Forbes, 47 So.2d 780 (1950). Taxation 2317

There must be an intention, either express or implied from facts, to abandon premises as a homestead before owner should be denied homestead exemption from taxation, and a temporary renting of the homestead is not an abandonment thereof, if there is no intention to abandon the premises as a homestead, and no other homestead has been acquired. 1958 Op.Atty.Gen. 058-229, July 22, 1958.

Where owner of residence in Lake County was entitled to homestead tax exemption under the constitution, and he accepted employment in state government service and was required to move to Tallahassee where he lived for fourteen years, and he rented his residence in Lake County, but maintained his voting registration and voted in Lake County and stated that when his state employment terminated he expected to return to residence in Lake County, question whether there had been abandonment of homestead was a question of fact for tax assessor. 1958 Op.Atty.Gen. 058-229, July 22, 1958.
4. Military personnel

Homestead exemption could not apply to property purchased by but never occupied by a service person, and the service applicant for homestead exemption must previously have been a resident of the state and received homestead exemption under provisions now constituting this section, construed in the light of former Const. Art. 10, § 7 (see, now, Const. Art. 7, § 6). 1968 Op.Atty.Gen., 068-33, Mar. 6, 1968.

It was not necessary in order to be entitled to the benefits of former § 192.141 that the servicemen who were either drafted or volunteered for service had previously qualified for homestead exemption as civilians. 1968 Op.Atty.Gen., 068-1, Jan. 5, 1968.

Citizenship is not a prerequisite to a serviceman's being entitled to a homestead tax exemption. 1968 Op.Atty.Gen., 068-1, Jan. 5, 1968.

Former § 192.141, did not state that exemption was to be limited to solely situations where the person who volunteered for the armed services previously claimed a homestead exemption in Florida in his capacity as a civilian. 1968 Op.Atty.Gen., 068-1, Jan. 5, 1968.

State resident entitled to and claiming homestead exemption on homestead upon being involuntarily called into armed services of United States necessitating removing family to other quarters and renting out temporarily abandoned homestead, with intention of returning and again making same his home after discharge is entitled to homestead exemption from taxation notwithstanding nonresidence upon property. 1950 Op.Atty.Gen. 227.
5. Incompetents

Temporary absence of a person committed to a mental hospital does not of itself constitute an abandonment of homestead rights previously acquired by him, but rental of the homestead by his legal guardian would terminate the exemption. Op.Atty.Gen., 071-398, Dec. 28, 1971.

If the entire dwelling of a person who was committed to a state institution as a mentally incompetent was rented to another by his guardian, the dwelling as a homestead was abandoned pursuant to provisions now constituting this section, and the homestead tax exemption granted by former Const. Art. 10, § 7 (see, now, Const. Art. 7, § 6) was lost. 1963 Op.Atty.Gen., 063-8, Jan. 25, 1963.

West's F. S. A. § 196.061, FL ST § 196.061
Current through Chapter 362 (End) of the 2005 Special 'B' Session of the
Nineteenth Legislature

END OF DOCUMENT
§ 1490. Renting of property


West's Key Number Digest
West's Key Number Digest, Taxation 219

By statute, the rental of an entire dwelling previously claimed to be a homestead for tax purposes constitutes its abandonment as a homestead, and the abandonment is to continue until the dwelling is physically occupied by the owner.[FN89] However, such abandonment of homestead property by renting it to another after January 1 of any year will not affect the exemption for tax purposes for that particular year so long as the statutory provision is not used for two consecutive years.[FN90]

Observation:
Apparently, the statute has made the act of renting conclusive on the issue of abandonment; therefore, the general rule that abandonment is a question of fact must yield to the terms of the statute.

A homestead owner who is required to reside in Washington, D.C. by reason of an appointment to employment in the federal government may not rent his Florida homestead property during his absence, as this would be considered abandonment under the statute.[FN91]
The statute regarding the effect of renting homestead property on one's ability to get a tax credit on the homestead tax exemption was directed solely to tax
exemption on homestead property, and not to a debtor's ability to claim homestead exemption on leased property upon her bankruptcy filing.[FN92]

[FN89] FS § 196.061.

[FN90] FS § 196.061.

[FN91] Fla Admin Code Rule 12D-7.013(2).

[FN92] Matter of Betancourt, 154 B.R. 90 (Bankr. S.D. Fla. 1993).
http://www.floridahomesteadservices.com

Author Dave
Participant Male

#2 | Posted: 19 Jan 2007 18:14 
First, thank you for all the useful information in this forum and associated website. I have a question please: I am currently active duty military serving in another state, (because of military orders) away from my FL homestead. I am currently renting my home while maintaining my homestead tax exemption as the statute allows. I signed a multi-year lease with the tenants which will end, not this summer, but the next (2008). It looks like I will retire from the military this Fall (2007) if I don't make promotion (small chance). I hope to return to the area where my homestead is, find a job and a temporary place to live, and return to my homestead when the lease there ends. My question is: will I lose my homestead exemption while I am waiting for my homestead to become available to me? I called my FL county property tax office, explained my situation to them, and they said if I don't get back in my homestead by Jan 1, 2008 I will loose my exemption. Is this right? I suppose I can ask the tenants to leave early, but they have been very good and I would prefer to not make things difficult for them. Any advice or help anyone can give me concerning my problem would be most appreciated. Thank you,
Dave

Author johnbsims3
Admin Male

#3 | Posted: 20 Jan 2007 09:11 
Dave,

You are quite welcome...

Here are some issues regarding military residence. I will do some more research on your specific question.

John

###

Number: AGO 79-50
Date: May 8, 1979
Subject: Homestead exemption, residence requirements
Randy Miller
Executive Director
Department of Revenue
Tallahassee

QUESTIONS:

1. Is it necessary for all persons, including military personnel, to have ever resided in a home in order for it to be impressed with homestead status?

2. If a serviceperson is assigned by military orders to government quarters (it is not mandatory that the serviceperson reside in such quarters), is it necessary for that person to have ever resided in a home (located in the same county in which the person is stationed) in order for it to be impressed with homestead exemption?

3. Can the real property of a serviceperson be impressed with homestead status when it has been continuously occupied by a tenant of the serviceperson from the date of the property's acquisition by the serviceperson through January 1 of the year for which homestead exemption is claimed?

SUMMARY:

It is necessary for all persons, including military personnel, who own real property, or those persons who are legally or naturally dependent upon such owners, to occupy the real property as a permanent home or place of residence in order for the owner thereof to be entitled to the constitutional homestead exemption from taxation.

Your first question is answered in the affirmative, and the remaining questions are, therefore, rendered moot.

The answers to your questions involve the interplay of the homestead exemption statutes, the constitutional provisions relating thereto, and the rules of the Department of Revenue.

At the outset it is important to note that it is an elemental part of the tax law of Florida that, in order to qualify for the benefit of a tax exemption, the person seeking the exemption must clearly bring himself within the requirements and scope of the law granting the exemption. See Green v. Pederson, 99 So.2d 292 (Fla. 1957). While doubtful language in taxing statutes should be resolved in favor of the taxpayer, the reverse is applicable in the construction of exceptions and exemptions from taxation. United States Gypsum Company v. Green, 110 So.2d 409 (Fla. 1959); Straughn v. Camp, 293 So.2d 689 (Fla. 1974); State v. Thompson, 101 So.2d 381 (Fla. 1958); and Lake Garfield Nurseries Company v. White, 149 So.2d (2 D.C.A. Fla., 1963).

Further, it must be pointed out that the questions you ask are mixed questions of law and fact and must be determined in the first instance by the property appraiser; a decision to grant or deny a homestead exemption may not be made by this office. Attorney General Opinions 058-329, 072-154, and 074-115. Of necessity, therefore, your questions will be dealt with in a general manner, and my answer will be limited to a discussion of the law as it relates to the determination which must be made by the property appraiser pursuant to ss. 196.131, 196.141, and 196.151, F. S. 1977.

From your inquiry and other data and correspondence attached thereto, it is apparent that the claimant in question has never resided on, or maintained his permanent place of residence on, the property sought to be exempted. I assume further that the property has been at all times rented to and occupied by third-party tenants, if not from the time of acquisition by the claimant, then for some lengthy period of time. I am not advised as to any dependents of the claimant who are residing, or who have ever resided, on the property as their permanent place of residence. It is against this backdrop that you inquire of the necessity for a homestead exemption claimant 'to have ever resided in a home,' or on the real property in question, in order for it to be impressed with homestead status for homestead tax exemption purposes.

Rule 12D-7.07(1), F.C.A., promulgated by the Department of Revenue, sets forth the requirement that, for a person 'to make a certain parcel of land his permanent home he must reside thereon with a present intention of living there indefinitely . . ..' (Emphasis supplied.) For purposes of your inquiry, the term 'permanent home' does not differ materially from the term 'permanent residence' as used in the 1968 Constitution. The rule employs the term 'to reside thereon (a certain parcel of land)' which conveys a meaning that does not materially differ from the meaning of the term 'maintain thereon (real estate)' as used in s. 6, Art. VII, State Const., i.e., the owner of the real property keeps thereon his permanent residence or makes the same his permanent place of residence.

This same similarity is found when s. 196.031, F. S. 1977, is compared to the provisions of the 1885 Constitution and the 1968 Constitution relating to homestead exemptions.

Section 196.031(1), F. S. 1977, reads in pertinent part:
Every person who has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent home . . . shall be entitled to an exemption . . .. (Emphasis supplied.)

This language is the same as that contained in the homestead exemption provision of the 1885 Constitution. The relevant part of the statute, as amended, has remained materially unchanged since its passage under the 1885 Constitution and is presumptively valid and must be given effect until the courts determine otherwise. See, e.g., Evans v. Hillsborough County, 186 So. 193 (Fla. 1938). Like Rule 12D-7.07(1), F.A.C., the statute requires homestead exemption claimants to 'reside(s) thereon (the real property).'

In the case of Read v. Leitner, 86 So. 425, 426 (Fla. 1920), the court was construing s. 1, Art. X of the 1885 Constitution, which exempted homesteads from forced judicial sale. In that case the court stated:
The Constitution does not expressly require the owner of a homestead . . . to occupy the home place that may be exempt . . . but the word 'homestead' implies occupancy as a home place . . .. (Emphasis supplied.)

Likewise, I feel, the language of s. 6(a), Art. VII, State Const., 'and maintains thereon the permanent residence of the owner or another legally or naturally dependent upon the owner . . ..', implies occupancy as a permanent home or place of residence of the owner or his dependents. Such occupancy, therefore, seems essential to the establishment of a homestead and, it follows, the entitlement to a homestead exemption from taxation.

Section 6, Art. VII, State Const., in pertinent part, also requires that the owner of real property claiming an exemption from taxation 'maintain(s) thereon the permanent residence of the owner . . ..' (Emphasis supplied.)

It has long been held in Florida that words used in constitutional provisions are to be construed in their usual and ordinary sense unless the tax in which they are used implies or suggests that their usage is technical in nature. See, e.g., Wilson v. Crews, 34 So.2d 114 (Fla. 1948), and Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950). It does not appear that anything other than the usual and ordinary meaning of the words 'maintain(s),' 'permanent,' and 'residence' was intended by Art. VII of the Constitution.

The noun 'residence' in its usual and ordinary sense means the place in which one lives or resides, a dwelling or home. The Random House Dictionary of the English Language, the unabridged ed., p. 1220. It is further defined as where a person actually dwells, a fixed and permanent abode. 77 C.J.S. Residence, p. 289, at 299-301.

'Residence' is modified by the adjective 'permanent' which connotes a substantial or indefinite period of time as contrasted to a temporary state. 70 C.J.S. Permanent, p. 560, et seq., The Random House Dictionary of the English Language, supra, p. 1073.

The word 'maintain' is one of broad meaning. Oftentimes its meaning depends upon the intention of the parties and the context in which it is used. It has been held to be a word of 'broad and comprehensive meaning, having no precise legal significance and no technical meaning.' 54 C.J.S. Maintain, p. 897 at 898. In the context used by the Constitution, however, it would seem that the most appropriate meaning of the word contemplates the preserving or keeping of something already in existence, and, therefore, something must already be in existence before it can be maintained. 54 C.J.S. Maintain, at 898. See also definitions of 'keep' in Black's Law Dictionary (4th Rev. ed.), p. 1006 and 'maintain,' p. 1105.

This reasoning appears to indicate, absent judicial determination to the contrary, that the wording used in s. 196.031, F. S. 1977, which, as noted above, tracks the wording of the 1885 constitutional provision relating to homestead exemption, is not inconsistent with, and, therefore, not repugnant to, the provisions of s. 6, Art. VII, State Const. This reasoning appears to have been expressed by my predecessor in AGO 074-115, which states, inter alia, that both military personnel and civilians must satisfy the permanent residence requirement of the Constitution and the statutes before a homestead exemption may be granted; therefore, military personnel stationed in Florida may qualify for the homestead exemption provided they establish the homestead as their permanent residence. See also AGO 068-33 concluding that:
. . . [a] member of the military service who had purchased a parcel of property, located in the state, but never occupied said property, would not be entitled to the homestead tax exemption in light of the provisions of s. 7, Art. X, State Const.

In summary, therefore, it is my opinion that, unless and until the courts of this state determine to the contrary, it is necessary for all persons (including military personnel) who own real property, or those persons who are legally or naturally dependent upon such owners, to occupy the real property as a permanent home or place of residence in order for the owner thereof to be entitled to the homestead exemption from taxation granted by s. 6, Art. VII, State Const.

Prepared by:

William D. Townsend
Assistant Attorney General
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#4 | Posted: 20 Jan 2007 09:12 | Edited by: johnbsims3 
Fla. AGO 2002-19
Office of the Attorney General
State of Florida

AGO 2002-19
March 1, 2002

RE: HOMESTEAD–TAXATION–TAX EXEMPTION–MILITARY PERSONNEL& #8211;determining homestead exemption for military personnel. ss. 196.031 and 196.071, Fla. Stat.; Art. VII, s. 6, Fla. Const.

The Honorable J. Hal Chewning, Jr.
Dixie County Property Appraiser
Post Office Box 260
Cross City, Florida 32628-0260

Dear Mr. Chewning:

You have asked for my opinion on substantially the following question:
Can an individual serving on active military duty meet the residency requirements for the tax exemption for homesteads in Dixie County while serving outside the State of Florida if the service member's official home of record at the time of enlistment was in another county and the service member had no title to property in Dixie County at the time of entry into active duty?
In sum:
A military service member may meet the residency requirements for a tax exemption for homesteads in Dixie County although his or her former official home of record was in another county and the service member had no property titled in his or her name in Dixie County.
It is an elemental part of Florida tax law that, in order to qualify for the benefit of a tax exemption, the person seeking the exemption must clearly come within the requirements and scope of the law granting the exemption. [FN1] While questionable language in taxing statutes should be resolved in favor of the taxpayer, the reverse is true in the construction of exceptions and exemptions from taxation. [FN2] The question of residence and its permanency must be initially determined from all the facts and circumstances by the property appraiser and may not be undertaken by this office or by another entity. [FN3]
Florida's tax exemption for homesteads is provided by Article VII, section 6, Florida Constitution, and section 196.031, Florida Statutes. The constitutional provision does not establish an absolute right to a homestead exemption; rather, the exemption may be granted to an applicant only "upon establishment of right thereto in the manner prescribed by law." [FN4] However, interpretations of the homestead exemptions under Florida law are entitled to consideration in the "liberal and beneficent spirit in which they were enacted to protect the family home." [FN5]
Section 196.031, Florida Statutes, which substantially tracks the language of and implements the constitutional provision, states:
"(1) Every person who, on January 1, has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent residence, or the permanent residence of another or others legally or naturally dependent upon such person, is entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of $25,000 on the residence and contiguous real property, as defined in s. 6, Art. VII of the State Constitution." [FN6]
*2 Thus, based on the use of the conjunctive "and" in section 196.031(1), Florida Statutes, entitlement to Florida's homestead exemption from taxation is determined by the simultaneous existence of three factors on January 1 of the tax year: 1) possession of legal or equitable title to the property, and 2) residence on the property, and 3) the intention of the taxpayer to make the property his or her permanent residence. [FN7]
Considering the constitutional provision and the statute, this office concluded in Attorney General's Opinion 79-50 that "it is necessary for all persons, including military personnel, who own real property, or those persons who are legally or naturally dependent upon such owners, to occupy the real property as a permanent home or place of residence in order for the owner thereof to be entitled to the constitutional homestead exemption from taxation." [FN8] As the opinion notes, the language of Article VII, section 6, Florida Constitution, makes occupancy essential to the establishment of a homestead and entitlement to a homestead tax exemption.
However, the courts have noted that mere physical presence on the property is not determinative in resolving entitlement to a homestead exemption. In Crain v. Putnam, [FN9] the Fourth District Court of Appeal reviewed the denial of a homestead exemption because the property owner, who had not lived in her home since 1992, had been placed in a nursing home in a vegetative state.
In that case the property owner had been involuntarily taken from her homestead to the hospital and, because of her physical and mental condition, could not have communicated any intention regarding her residence. She remained hospitalized in a vegetative state. Her furniture, clothing and most of her other possessions remained in the residence, and her mail was delivered there. The appellate court recognized that all the evidence considered together indicated the intent that the home was the residence of the property owner and held that her physical presence on the property was not a requirement for the exemption.
Further, the language of section 196.031(1), Florida Statutes, recognizes that the owner of property may claim a homestead exemption without the necessity of physical presence on the property. The statute provides that if the property is "the permanent residence of another or others legally or naturally dependent upon such person," the property owner may be eligible for a homestead tax exemption without regard to whether the property owner resides on the property.
With regard to military personnel, the statutes contain specific language acknowledging that physical presence is not essential to a determination of permanent residence. Section 196.061, Florida Statutes, generally makes the rental of homestead property to another an abandonment of such property for homestead tax exemption purposes. However the statute contains this exception: "The provisions of this section shall not apply to a member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States." Thus, service personnel who are called to active duty and rent their homestead property to another may continue to qualify for and receive a homestead tax exemption on such property under the terms of this statute. Clearly, actual physical presence on homestead property is not determinative in resolving entitlement to a homestead exemption for military personnel.
*3 Pursuant to section 196.015, Florida Statutes, intention to establish a permanent residence in this state is a factual determination that is initially made by the property appraiser. This statute provides that although no one factor is conclusive of the establishment of permanent residence, a number of relevant factors that may be considered by the property appraiser are relevant in making this determination:
"(1) Formal declarations of the applicant.
(2) Informal statements of the applicant.
(3) The place of employment of the applicant.
(4) The previous permanent residency by the applicant in a state other than Florida or in another country and the date non-Florida residency was terminated.
(5) The place where the applicant is registered to vote.
(6) The place of issuance of a driver's license to the applicant.
(7) The place of issuance of a license tag on any motor vehicle owned by the applicant.
(8) The address as listed on federal income tax returns filed by the applicant.
(9) The previous filing of Florida intangible tax returns by the applicant."
All of these factors may be considered by the property appraiser in making a determination of whether permanent residency has been established.
In addition, a consideration of the Soldiers" and Sailors" Civil Relief Act of 1940 is necessary to any consideration of the residency status of military personnel. That federal provision states that for purposes of taxation, those serving in the military do not lose their residence or domicile in a particular state or political subdivision by reason of their absence therefrom in compliance with military or naval orders. [FN10] Thus, for taxation purposes, federal law creates a presumption that a member of the military is a resident of the county in which he or she was a permanent resident upon entering military service.
Florida clearly recognizes the significance of extending the homestead exemption to members of the armed forces:
"Every person who is entitled to homestead exemption in this state and who is serving in any branch of the Armed Forces of the United States, shall file a claim for such exemption as required by law, either in person, or, if by reason of such service he or she is unable to file such claim in person he or she may file such claim through his or her next of kin or through any other person he or she may duly authorize in writing to file such claim." [FN11]
However, as discussed above, the person seeking the exemption must clearly come within the requirements and scope of the law granting the exemption.
The issue of residence and its permanency must be resolved by the property appraiser based on all the facts and circumstances in a particular case. [FN12] It is my opinion, therefore, that the fact that a military service member's former official home of record was in another county and the service member had no property titled in his or her name at the time of entry into active military service is not conclusive of the entitlement to a homestead exemption in Dixie County.

Sincerely,

*4 Robert A. Butterworth
Attorney General

[FN1]. See, Green v. Pederson, 99 So. 2d 292 (Fla. 1957).

[FN2]. United States Gypsum Company v. Green, 110 So. 2d 409 (Fla. 1959); Straughn v. Camp, 293 So. 2d 689 (Fla. 1974); State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So. 2d 381 (Fla. 1958); and Lake Garfield Nurseries Company v. White, 149 So. 2d 576 (Fla. 2d DCA 1963).

[FN3]. See, s. 196.151, Fla. Stat. And see, Ops. Att'y Gen. Fla. 82-99 (1982), 79-50 (1979), 74-115 (1974), 72-154 (1972), and 58-329 (1958).

[FN4]. Horne v. Markham, 288 So. 2d 196, 199 (Fla. 1973).

[FN5]. See, e.g., Op. Att'y Gen. Fla. 71-398 (1971); and cf., In re Estate of Skuro, 467 So. 2d 1098 (Fla. 4th DCA 1985), aff'd, 487 So. 2d 1065 (Fla. 1986) and Cain v. Cain, 549 So. 2d 1161 (Fla. 4th DCA 1989) (homestead exemption is to be construed liberally for benefit of those whom it is designed to protect).

[FN6]. See, s. 196.031(3)(e), Fla. Stat., changing the assessed valuation from $5,000 to $25,000 for levies of taxing authorities other than school districts.

[FN7]. See, s. 196.015, Fla. Stat., setting forth relevant factors that may be considered by the property appraiser in making his or her determination regarding the establishment of permanent residency in this state. And see, Rule 12D-7.007, Florida Administrative Code, which provides:
"(1) For one to make a certain parcel of land his permanent home, he must reside thereon with a present intention of living there indefinitely and with no present intention of moving therefrom. (2) A property owner who, in good faith, makes real property in this state his permanent home is entitled to homestead tax exemption.'

[FN8]. And see, Op. Att'y Gen. Fla. 74-115 (1974) ('Both military personnel and civilians must satisfy the permanent residence requirement of the Constitution and statutes before a homestead exemption may properly be granted. An exception is provided by ss. 196.061 and 196.071, F.S., so that military personnel who have qualified for Florida's homestead tax exemption but later transfer their residence temporarily to another location because of their military duties will not lose their Florida homestead tax exemption.")

[FN9]. 687 So. 2d 1325 ((Fla. 4th DCA 1997).

[FN10]. See, 50 App. USCA s. 574(1), of the Soldiers" and Sailors" Civil Relief Act of 1940.

[FN11]. Section 196.071, Fla. Stat.

[FN12]. As this office concluded in Attorney General's Opinion 74-115 (1974):
"An applicant for Florida's homestead tax exemption is not required to be a citizen or to have purchased Florida license plates for his of her motor vehicles nor to have registered to vote in the county in which the homestead property is located in order to qualify for the homestead tax exemption. Such facts may be looked to by the assessor in making his or her determination of whether the applicant has established his or her "permanent residence" on the property, but the presence or absence of such facts is not conclusive of the establishment or nonestablishment of permanent residence. Military personnel may establish permanent residence in Florida and qualify for Florida's homestead tax exemption, but if such personnel retain their legal residence of domicile in another state by availing themselves of certain provisions of the Soldiers and Sailors Civil Relief Act, such action would appear to negate any assertion that Florida is their permanent residence."
http://www.floridahomesteadservices.com

Author Dave
Participant Male

#5 | Posted: 25 Jan 2007 10:10 
John,

Thank you very much for the supplemental information. I've read it, but still feel like my situation is in a very gray area. Have you had a chance to do more research on my specific question? Any advice at all would be most appreciated. Thanks,

Dave
Dave

Author johnbsims3
Admin Male

#6 | Posted: 21 Aug 2007 08:52 
ABANDONMENT OF HOMESTEAD

Florida Stat. §196.061 Rental of homestead to constitute abandonment.--The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years. The provisions of this section shall not apply to a member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States.
History.--s. 1, ch. 59-270; s. 1, ch. 67-459; ss. 1, 2, ch. 69-55; s. 5, ch. 95-404; s. 8, ch. 96-397.
Note.--Former s. 192.141.

A recorded document, executed by those claiming a homestead exemption, giving up said homestead. Not applicable to all states and procedure must be according to local statutes.

Section 196.061, Florida Statutes," Rental of homestead to constitute abandonment", states in material part:

The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years.


Loss of Homestead

The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute abandonment of said dwelling as a homestead. Abandonment of such homestead after January 1st of any year shall not affect the homestead exemption for tax purposes for that particular year.
Section 196.061, Florida Statutes,"Rental of homestead to constitute abandonment", states in material part:
The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years.
After the property has been designated as a homestead, it continues to be impressed wit the homestead character, until the homestead character is lost by dissolution of the family relationship, a sale of the homestead, or its being abandoned as a homestead. Therefore, once it appears that property has been the homestead of a man and wife, any attempt to encumber of sell the property without conforming to the rules mentioned above would be invalid unless it can be proven that the property is no longer the homestead, due to some abandonment or termination of homestead rights. Abandonment of homestead is a question of fact to be determined on a case-by-case basis by a court or by a jury, and turns mainly on a question of intent of the parties to a transaction. Thus, if there is a temporary removal from the presumes, i.e. where a person is temporarily out of the country, moves temporarily for health purposes, or other such instances, there is no abandonment of the homestead, if it can be proved that the intent of the homestead claimants was to return to the property as their permanent homestead.
B. In a dispute between a homestead claimant and one who is attempting to put a lien on homestead property, the issue is frequently whether or not the homestead claimant has disclaimed his homestead rights, or would be estopped to raise this homestead claim. One of the basic principles is that a homestead claimant may not, merely by the fact of signing a written disclaimer of property as his homestead, preclude himself from later claiming the property as his homestead, even if this written disclaimer includes someone else to lend money against the homestead. Therefore, in such a case it would behoove the lender to make an examination of the occupancy of the property, and if the person is in fact residing in the property which is being mortgaged, a disclaimer signed by the person attempting to borrow money against homestead, would be invalid, if the claimant later contests that disclaimer and denies that the property was ever abandoned as his homestead.
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Rental of homestead
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