Florida Homestead Services - Florida Homestead Exemption Act Forum
Visit our main website at Florida Homestead Services.com
 | Forums | Sign Up | Reply | Search | Statistics |
Florida Case Law Florida Homestead Services - Florida Homestead Exemption Act Forum / Florida Case Law /  

Continuous uninterrupted physical presence and Homestead

Author johnbsims3
Admin Male

#1 | Posted: 1 Dec 2006 07:35 
Continuous uninterrupted physical presence is not required to create homestead.

M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71 (Fla.App. 2 Dist.,1982)
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#2 | Posted: 16 Dec 2006 13:57 
Continuous uninterrupted physical presence is not required to create a homestead. Novoa v. Amerisource Corp., 860 So. 2d 506 (Fla. Dist. Ct. App. 3d Dist. 2003).

860 So.2d 506, 28 Fla. L. Weekly D2717


District Court of Appeal of Florida,
Third District.
Tony NOVOA and Drumia Novoa, Appellants,
v.
AMERISOURCE CORPORATION, Appellee.
No. 3D03-161.
Nov. 26, 2003.
Creditor brought action in foreclosure. The Circuit Court, Miami-Dade County, Philip Bloom, J., granted creditor's motion for summary judgment, and debtors appealed. The District Court of Appeal, Shevin, J., held that genuine issue of material fact remained whether property subject to foreclosure was debtors' homestead.
Reversed and remanded.
Cope, J., filed concurring opinion.
West Headnotes

[1] KeyCite Notes

228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185.3 Evidence and Affidavits in Particular Cases
228k185.3(15) k. Liens and Mortgages. Most Cited Cases

Genuine issue of material fact remained as to whether property that creditors attempted to foreclose was debtors' homestead, thus precluding summary judgment, in light of evidence that debtors, who were living in Costa Rica, intended to return to property as soon as legal problems were resolved.

[2] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(C) Acquisition and Establishment
202k37 k. Extent of Occupancy. Most Cited Cases

Continuous uninterrupted physical presence is not required to create a homestead.

[3] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k164 k. Acquisition of Other Domicile or Homestead. Most Cited Cases

A homestead is abandoned by taking up a permanent abode at a distant place.

[4] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k154 k. Loss or Relinquishment of Right in General. Most Cited Cases

Whether there has been an abandonment of a homestead should be determined by a consideration of all the pertinent facts and circumstances of each case.

[5] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k162 Intent to Return
202k162(1) k. In General. Most Cited Cases

The status of homestead is preserved when the family unit is temporarily removed from the homestead but the homestead remains the permanent abode to which the family unit intends to return.

[6] KeyCite Notes

228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(5) k. Weight and Sufficiency. Most Cited Cases

Determinations of witness credibility are reserved for the jury and are improper on a motion for summary judgment.

*507 Woodbury & Santiago and Michael P. Woodbury, for appellants.
Raul Gastesi and Leonardo G. Renaud, for appellee.

Before COPE, LEVY and SHEVIN, JJ.


SHEVIN, Judge.
Tony Novoa and Drumia Novoa appeal an order granting a summary judgment in favor of judgment creditor, Amerisource Corporation, in its action to foreclose on real property. We reverse.
Mr. Novoa argues on appeal that he presented sufficient evidence at the summary judgment hearing that the property was homestead, and not subject to foreclosure by the creditor, to create an issue of fact precluding summary judgment. Mrs. Novoa asserts that the court erred in granting summary judgment in view of her testimony that her husband's creditor could not attach the property because, despite a clerical error in the title, the parties intended to hold the property as tenants by the entireties.
The court in Jebailey v. Watsky & Co., 676 So.2d 1036 (Fla. 5th DCA 1996), was presented with a similar scenario. Jebailey sold his homestead in Florida and was living in Lebanon. His creditors sought to attach the proceeds of the sale. The Fifth District held that testimony from Jebailey's daughter-explaining her parents' intent to purchase another Florida property as homestead with those proceeds-precluded summary judgment. In the case before us, there was sufficient record evidence to create genuine issues of material fact regarding Mr. Novoa's intention to continue to use the property as his homestead. Novoa testified that he intended to continue using the property as his homestead and would be returning to the property as soon as his legal problems in the United States had been resolved. This created a factual issue that precluded summary judgment.
[1] [2] [3] [4] [5] Amerisource argues that the Novoas abandoned the homestead because they are currently living in Costa Rica. Novoa refuted this allegation by testifying that he is in Costa Rica pending resolution of his legal problems, and that he intends to return to the property as homestead when these problems abate. "Continuous uninterrupted physical presence is not required to create a homestead." Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981). "A homestead is abandoned by taking up a permanent abode at a distant place. Whether there has been an abandonment of a homestead should be determined by a consideration of all the pertinent facts and circumstances of each case." Miller v. West Palm Beach Atlantic Nat'l Bank, 142 Fla. 22, 194 So. 230 (1940). In Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982), the court found that involuntary absence from homestead, caused by legal problems of the owner, are insufficient to constitute abandonment of the homestead. The status of homestead is preserved "when the family unit is temporarily removed from the homestead but the homestead remains the permanent abode to which the family unit intends to return." Dean, 409 So.2d at 158. Novoa's testimony created an issue of fact as to his intention to return, and not abandon the homestead.
[6] Moreover, in granting summary judgment in this case, the trial court impermissibly weighed the credibility of Mrs. Novoa and disregarded her testimony that they intended to title the property as tenants by the entireties. This was improper, as credibility determinations must be made by a jury at trial. Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000); Jebailey.
*508 Based on the foregoing, we reverse summary judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.

LEVY, J., concurs.

COPE, J. (concurring).
In the present posture of the case I concur in reversing for further proceedings.
I write separately, however, to point out what I believe to be an important underlying issue in the case, the doctrine of judicial estoppel. See Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061 (Fla.2001); SCI Funeral Servs. of Florida, Inc. v. Henry, 839 So.2d 702 (Fla. 3d DCA 2002). The doctrine of judicial estoppel precludes "the option of pursuing an entirely inconsistent position in a subsequent suit." Blumberg, 790 So.2d at 1067.
The parties have framed the question to be whether the Novoas abandoned the homestead, but to me the more basic problem is that the Novoas have taken inconsistent positions in court. Since the issue has not been briefed by the parties, it is an issue which should be addressed on remand. The issue clearly exists as to Tony Novoa, and quite possibly also exists as to the appellant wife, Drumnia Marquez Novoa.
The summary judgment record reflects that in prior litigation between Tony Novoa and Amerisource Corporation, Tony Novoa consistently took the position that the family had relocated to Costa Rica. These representations were made so that he could not be compelled to come to Miami-Dade County in connection with pending civil lawsuits as well as a pending Medicaid investigation. Tony Novoa's status as a resident of Costa Rica was repeatedly presented to the trial court by his counsel.
In the civil lawsuits Amerisource recovered substantial judgments against Tony Novoa, which it is now seeking to enforce against real estate titled in Tony Novoa's name in Miami-Dade County. Seeking to block the Amerisource judgments, the Novoas argue that Miami-Dade County has at all times remained their homestead, and that they were physically present in Miami-Dade County several days each month.
The trial court had a clear understanding of Tony Novoa's previous litigation position that he was a Costa Rican resident, not a Florida resident. It was the inconsistency of the Novoas' litigation position that troubled the trial court, and rightly so. While Florida cases have in some circumstances allowed homestead status to be retained notwithstanding the absence of the owner from the jurisdiction for a period of time, see majority opinion at 2-3, those cases do not rule out the possibility of the application of the doctrine of judicial estoppel, and the cited cases differ from the circumstances present here. In Jebailey v. Watsky & Co., 676 So.2d 1036 (Fla. 5th DCA 1996), the proceeds of the sale of the Jebaileys' homestead were placed in the registry of the court thus preventing the Jebaileys from buying another homestead until resolution of the lawsuit regarding entitlement to the proceeds. In those circumstances, the Jebaileys returned to their home country until such time as the litigation could be resolved. The case does not involve the taking of inconsistent litigation positions, which is what the doctrine of judicial estoppel is designed to prevent.
In Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982), William Dean was arrested and ordered as a condition of bail to leave Jackson County where the homestead was located. Plainly under those circumstances there could be no abandonment, because the departure from the *509 homestead was ordered by the court. Again, no such circumstances exist here.
The other cases cited in the majority opinion, Miller v. West Palm Beach Atlantic Nat'l Bank, 142 Fla. 22, 194 So. 230 (1940), and Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981), both involve the effect of a separation by husband and wife on the status of the marital abode as homestead. In Miller it was found that there had been an abandonment and the husband was estopped to say otherwise. 194 So. at 232. In Burdick, there was found to be no abandonment. Id. at 413. Those cases likewise present no barrier to application of the doctrine of judicial estoppel in an appropriate case.
Fla.App. 3 Dist.,2003.
Novoa v. Amerisource Corp.
860 So.2d 506, 28 Fla. L. Weekly D2717


Briefs and Other Related Documents (Back to top)

3D03-161 (Docket) (Jan. 14, 2003)



[FN13] In re Brown, 165 B.R. 512 (Bankr. M.D. Fla. 1994).
[FN14] Collins v. Collins, 150 Fla. 374, 7 So. 2d 443 (1942).
[FN15] Hussa v. Hussa, 65 So. 2d 759 (Fla. 1953).
[FN16] In re Frederick, 183 B.R. 968 (Bankr. M.D. Fla. 1995), determination sustained, (May 18, 1995).
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).
http://www.floridahomesteadservices.com

Florida Case Law Florida Homestead Services - Florida Homestead Exemption Act Forum / Florida Case Law /
Continuous uninterrupted physical presence and Homestead
Top
Your Reply Click this icon to move up to the quoted message
 

 ?
Only registered users are allowed to post here. Please, enter your username/password details upon posting a message, or register first.
 
  Powered by Forum Software miniBB®