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Homestead, Involuntary Absence and Abandonment, Removal

Author johnbsims3
Admin Male

#1 | Posted: 23 Oct 2006 14:43 | Edited by: johnbsims3 
In re Estate of Melisi, 440 So.2d 584
Fla.App. 4 Dist.,1983
Homestead character of property is not abandoned when owner involuntarily changes his residence, as in case where infirmity requires residence in nursing home or hospital facility.



M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71
Fla.App. 2 Dist.,1982
Where on October 18, husband left parties' home saying he was going to nearby convenience store and would be right back, but did not return, wife filed for dissolution of marriage on November 3 for primary purpose of securing title to home for support and benefit of her self and minor child, creditor obtained full final judgment against husband on December 24, and creditor was owned by father of former husband and husband either worked or was very closely associated with father's business until his abrupt and apparently total unexpected disappearance, evidence supported finding that headship of family continued in husband from date of his departure until entry of judgment dissolving marriage, and failed to support finding of abandonment or loss of constitutional protection of homestead for benefit of wife and minor child.



Dean v. Heimbach, 409 So.2d 157
Fla.App. 1 Dist.,1982
Involuntary absence of family head from homestead cannot by itself support finding of abandonment of homestead.



Olesky v. Nicholas, 82 So.2d 510
Fla.,1955
Where husband and wife acquired property in 1940, and section of house was converted into and operated as a sundry store and husband prior to 1947 found it necessary due to poor business conditions to seek employment elsewhere and part of house operated as store became vacant until 1950 when husband resumed operation of store and husband died in 1950, and store was operated by wife until her death in 1952, parties did not abandon as homestead property the portion of the building used as a sundry store. F.S.A.Const. art. 10, 1.



Barlow v. Barlow, 23 So.2d 723
Fla.,1945
A homestead is abandoned when owner removes therefrom, without intending to return, and takes up permanent abode and pursues his livelihood at another place.



Lanier v. Lanier, 116 So. 867
Fla.,1928
Permanent abandonment of homestead deprives property of homestead character.



Nelson v. Hainlin, 104 So. 589
Fla.,1925
Whether homestead has been abandoned so as to deprive it of exemption character under Constitution should be determined by facts and circumstances of each case, having in view organic provisions that homestead should be exempt from forced sale, and that exemptions should inure to widow and heirs.



Nelson v. Hainlin, 104 So. 589
Fla.,1925
Where husband and wife acquired homestead, and wife rented rooms therein to support herself and her husband, who lived elsewhere because his wife was unable properly to care for him, although he occasionally visited wife at homestead, such homestead was not abandoned but retained its character until husband's death.



Matthews v. Jeacle, 55 So. 865
Fla.,1911
The homestead intended by the Constitution to be exempted is a place of actual residence of the party and his family; and, though a temporary absence will not deprive a homestead claimant of his right, yet a permanent abandonment of the homestead as a place of permanent abode strips it of its homestead character.






Cain v. Cain, 549 So.2d 1161
Fla.App. 4 Dist.,1989
To show abandonment of homestead, both owner and his family must have abandoned property. West's F.S.A. Const. Art. 10, 4.



McGann v. Halker, 530 So.2d 440
Fla.App. 3 Dist.,1988
Former husband's excursions to Alabama, leaving his new family behind, were not permanent, but rather, mere temporary absences consistent with bona fide intent to return, and thus, did not amount to abandonment of homestead so as to render homestead subject to execution upon judgment held by former wife.



Dean v. Heimbach, 409 So.2d 157
Fla.App. 1 Dist.,1982
Father's involuntary absence from homestead as result of compliance with condition of bail on unrelated criminal charges did not constitute abandonment of homestead where father intended to return to homestead after criminal problems were resolved, and thus father could convey homestead to eldest son without subjecting homestead to attachment by father's personal judgment creditor.



Marsh v. Hartley, 109 So.2d 34
Fla.App. 2 Dist.,1959
Question of whether there has been an abandonment of a homestead should be determined by a consideration of all the pertinent facts and circumstances of each individual case.



Marsh v. Hartley, 109 So.2d 34
Fla.App. 2 Dist.,1959
Temporary absence of the head of a household for reasons of health, pleasure, or business will not deprive the homestead of its protected status, unless there was the aim on his part to forsake it permanently, nor will temporary rental of the homestead property necessarily impose the status of abandonment where the intent to return is present.



L'Engle v. Forbes, 81 So.2d 214
Fla.,1955
Temporary absence will not deprive homestead claimant of his right, unless it appears that there was a design of permanent abandonment, and such rule applies to homestead tax exemption privilege. F.S.A.Const. art. 10, 1, 4, 7.



Saint-Gaudens v. Bull, 74 So.2d 693
Fla.,1954
Where a judgment creditor sought to subject defendant's home to a judgment which was entered after defendant filed claim for homestead exemption, defendant's absence from the home from May 1952 until April 1953, which was occasioned by defendant's divorce and subsequent emotional disturbance over her husband's immediate re-marriage, did not amount to an abandonment of the homestead.



Barclay v. Robertson, 65 So. 546
Fla.,1914
Where a judgment debtor had not lived on the land for more than three years, and failed to have it set aside, under F.S.A. 222.02, until more than a year after an executive sale, he waived his right to claim any homestead exemption therein.


Gulf Refining Co. v. Ankeny, 135 So. 521
Fla.,1931
Homestead cannot be alienated except by deed or mortgage duly executed by husband and wife; homestead may, in whole or in part, be abandoned as homestead by express declaration or conduct (Const. art. 10, 4).



Gulf Refining Co. v. Ankeny, 135 So. 521
Fla.,1931
Homestead may, in whole or in part, be abandoned as homestead by express declaration or conduct. F.S.A. Const. art. 10, 4.



Daniels v. Katz, 237 So.2d 58
Fla.App. 3 Dist.,1970
Homesteads may not be alienated contrary to interests of those to be protected by homestead character of property involved and are not subject to execution or judgment liens, and such right of exemption may not even be waived by both husband and wife. F.S.A.Const. art. 10, 4.



Clark v. Cox, 85 So. 173
Fla.,1920
Where a homestead has been acquired, it can be waived only by abandonment or by alienation in the manner provided by law.
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Author johnbsims3
Admin Male

#2 | Posted: 23 Oct 2006 14:51 
The burden is on the objecting party to show that party claiming the exemption is not entitled to it. In re Sanders, 72 B.R. 124 (Bankr.M.D.Fla.1987). A party objecting to the exemption claimed under Florida law must prove, by preponderance of evidence, that the claimant is not entitled to the claimed exemption.

Involuntary absence is not sufficient to support a finding of abandonment. Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982).

Under Florida law, homestead rights are construed in favor of exemption. Under Florida law, a natural person loses his constitutional homestead exemption only if one of the three specific and expressly stated exemptions is present, or if the person uses his homestead as instrument of fraud. While Florida's constitutional homestead exemption is designed for honest claimants, it is generally assumed that the claimant is honest unless and until the contrary is proven. Colwell v. Royal Intern. Trading Corp., 226 B.R. 714 (S.D. Fla, Miami Division).

Once homestead status is acquired, it continues until the homestead is abandoned or alienated in a manner provided by law. A homeowner retains a homestead interest in his home, notwithstanding any criminal or dissolution judgment. Cain v. Cain, 549 So.2d 1161 (Fla.App. 4 Dist.,1989). Continued ownership of the residence and the record should reflect neither alienation of interest nor intent to establish a homestead elsewhere. If not, the evidence needs to get in the record ASAP. See Dean v. Heimbach, 409 So.2d 157, which is a controlling case.

When homestead status has been acquired, it continues until the homestead is abandoned, which is normally evidenced by establishment of domicile at some other place, or alienated in a manner provided by law. Under Florida law, the intent to establish homestead is evidenced by specific acts toward creating a permanent abode which are not contradicted by any subsequent behavior. Intent coupled with actual use are all that is required to make the written legal claim. Establishing homestead status under Florida law requires actual use and occupancy of property; however, continuous, uninterrupted presence is not required. M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71 (Fla. 2d DCA 1982). Daily residence is not essential to create or maintain a "homestead", nor is it disrupted by temporary absence with the intent to return. Collins v. Collins, 150 Fla. 374, 7 So.2d 443. You do not have to occupy the premises 24 X 7.

Although an involuntary nature of absence from property claimed as homestead under Florida law is an important factor to consider, a homeowner sufficiently occupies the property to establish homestead status under Florida law if this is where he "hangs his hat", even though he spends the current bulk of his time living away from property and his involuntary absence from property is required or even to defend and serve time for a criminal or civil suit. Compliance with the "intention coupled with actual use" requirement is sufficient.

The requirement regarding legal abandonment, which boils down to two issues, is voluntarily moving to a new residence and claiming it as homestead, and/or rental of the property for profit.

A homestead has been "abandoned" when it is no longer a bona fide home and place of permanent abode. Law v. Law, 738 So.2d 522, 24 Fla. L. Weekly D1924. Temporary absence from a homestead will not deprive it of its homestead character, unless there is a design of permanent abandonment. Only permanent abandonment of a homestead deprives the property of its homestead character. Lanier v. Lanier, 95 Fla. 522, 116 So. 867.

As more than one court has indicated, the Florida Constitution grants "a liberal exemption" for homestead property. Englander v. Mills (In re Englander), 95 F.3d 1028, 1031 (11th Cir. 1996); In re McClain, 281 B.R. 769 (Bankr. M.D. Fla. 2002). In Florida, a homestead is established when there is "actual intent to live permanently in a place, coupled with actual use and occupancy." In re Brown, 165 B.R. 512, 514 (Bankr. M.D. Fla. 1994). Ultimately, all that is required to make the claim is that the property owner reside on the property and in good faith make the same his permanent home. Colwell, 226 B.R. at 719; see also Judd v. Schooley, 158 So.2d 514, 516 (Fla. 1963). Exceptions to the homestead exemption should be strictly construed in favor of claimants and against challengers. In re Ehnle, 124 B.R. 361, 363 (Bankr. M.D. Fla. 1991). One's homestead or domicile is a rather simple equation in the end: residence plus intent to remain. As mentioned, the exceptions to the homestead exemption are to be "strictly construed" in favor of its claimants, and the Court can only conclude on the evidence before it, or lack thereof, that an owner resides in the property and "in good faith" intends it to be his permanent home.
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