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The necessity of a declaration of homestead

Author johnbsims3
Admin Male

#1 | Posted: 23 Oct 2006 14:56 
Necessity of declaration of homestead

The homestead exemption provisions of a number of states require a homestead claimant to make a designation or declaration of the homestead property before the exemption from creditor claims may take effect. Under some provisions requiring the selection or designation of the homestead property, there cannot be a homestead right in any specific property until a selection of a homestead has been made, evidenced in writing, and recorded in accordance with certain requirements. Ordinarily, however, no selection need be made until there is an execution levied against the homestead claimant's property.

As a general rule, a person can file a declaration of homestead at any time before the date of a forced sale, and such filing will protect the property from sale. Once the declaration of homestead has been filed, such declaration constitutes prima facie evidence of the validity of the facts stated therein. A declaration of homestead may be filed during the pendency of litigation at any time before the judgment has become a lien on property; if it is filed after the rendition of the judgment, it will defeat an existing attachment lien; if it is filed after levy of execution and there is no valid and subsisting judgment lien, the property is not subject to execution sale except on proceedings to reach the excess in value over the homestead exemption.

In other jurisdictions, the protections provided by homestead exemption provisions operate automatically, and thus there is no need to make a formal declaration that certain land has been selected as a homestead in order to invoke the exemption. The automatic homestead exemption attaches upon occupancy and use of real property as a home by the owner or owner's family. In a few jurisdictions, there are provisions both for a declared homestead and an automatic exemption, with each provision conferring different rights on the homesteader, without overlap between those rights.

In jurisdictions where the homestead exemption provision requires the filing of a formal declaration of homestead property, it must be filed of record in the prescribed manner. In order to claim the homestead exemption, the claimant must show that there has been substantial compliance with the provisions of the statute, and the declaration of homestead must have been executed and filed exactly as therein provided.

A declaration of homestead which completely omits any of the statutory requirements is fatally defective and confers no exemption rights on the declarants. Although a complete failure to state an "actual cash value" in a declaration of homestead, as required by the statute, renders the homestead invalid, there need be only substantial compliance with this requirement, which is satisfied where an estimate is entered even though it does not properly reflect the true cash value of the property. Likewise, a description of the premises claimed in a declaration of homestead, if required by statute, need not be more particular than is required in the case of an ordinary conveyance.

A declaration ordinarily requires a statement that the person making it is residing on the premises at the time of filing such declaration, and the absence of the residency statement may well render the declaration ineffectual. For example, one court held that a homestead declaration which failed to state that the declarants were residents of the state at the time the declaration was made, as required by statute, was invalid. In another case, the court held that a homestead declaration was invalid because the claimant vacated the premises he selected as a homestead and permanently moved to another state before the declaration was filed with the county auditor, even though the claimant was in full compliance with the residence requirements of the statute when he signed the declaration. On the other hand, a residency statement may be excused where the person is allowed to make the declaration while not a resident, as where the wife is allowed to make a declaration but she is absent from the premises because of the wrongful acts of her husband.

A homestead claimed by a husband on a home jointly owned with his wife was valid even though the wife had a separate interest in the property and did not join in executing the declaration, where the homestead was filed while the husband and wife occupied the home, in that the community interest was sufficient to support the homestead claim and the wife's signature was not necessary to validate it.

These are reasons why it is crucial to utilize our service as our registered and copyright form for the State of Florida is legally sufficient and cannot be attacked. Do not attempt to utilize other states forms as they are not sufficient for the State of Florida.

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Basics About Exemptions Florida Homestead Services - Florida Homestead Exemption Act Forum / Basics About Exemptions /
The necessity of a declaration of homestead
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