The purpose of the homestead exemption is to protect a debtor and his or her family in a home from forced sale on execution or attachment. See Fisher v. Kellogg, 128 Neb. 248, 258 N.W. 404 (1935). Any interest in real estate, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Mainelli v. Neuhaus, 157 Neb. 392, 59 N.W.2d 607 (1953). See, also, Fisher v. Kellogg, supra. It is not necessary that the ownership be of an estate in fee simple, but any interest, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Id.
Although the Constitution limits the quantity of homestead property that may be exempted, it does not define or limit the estates therein to which the exemption may apply.[FN72] It is established that the claimant need not hold a fee simple title in the property,[FN73] nor even a freehold estate therein.[FN74] For the purposes of the homestead exemption, it is enough if the one claiming the homestead exemption has any beneficial interest in the property; it is not necessary that he hold any legal title to the property.[FN75] Indeed, the homestead exemption extends to any right or interest the claimant may hold in land.[FN76] But property in which another has a life estate cannot be the homestead of one who has the remainder interest.[FN77] The reason for this rule is that the holder of a remainder interest in property in which another has a life estate as her home place, has no right to the occupancy of such property as his home place until the life estate has terminated, and therefore cannot claim homestead exemption in such property. By the great weight of authority the claim of homestead may not attach to either vested or contingent future estates or interests in land, because a remainder expectant upon cessation of the preceding estate creates no present right to possession and is not susceptible to immediate occupancy by the remainderman.[FN78] The consent by a life tenant to a remainderman's occupancy does not divest the life tenant of a paramount present interest.[FN79]
Florida homestead exemption law does not distinguish between different types of ownership interests in determining whether debtor may claim homestead exemption for his or her ownership interest in land. West's F.S.A. Const. Art. 10, § 4. In re Ballato, 318 B.R. 205 (Bankr. M.D. Fla. 2004).
An individual claiming a homestead exemption need not hold fee simple title to the property. Fla. Const. Art. 10, § 4. Callava v. Feinberg, 864 So. 2d 429 (Fla. Dist. Ct. App. 3d Dist. 2003), reh'g denied, (Jan. 30, 2004).
Constitutional provision exempting a homestead from forced sale does not designate how title to the property is to be held and it does not limit the estate that must be owned. Fla. Const. Art. 10, § 4. Callava v. Feinberg, 864 So. 2d 429 (Fla. Dist. Ct. App. 3d Dist. 2003), reh'g denied, (Jan. 30, 2004).
A fee simple estate evidenced by a warranty deed is not essential for a cooperative (co-op) owner to claim the homestead exemption from forced sale under State Constitution; a life estate interest that gives the owner the right to use and possess a co-op as his or her residence may be sufficient. Fla. Const. Art. X, § 4(a)(1). Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 27 Fla. L. Weekly D552 (Fla. Dist. Ct. App. 5th Dist. 2002).
[FN72] Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN73] Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946).
[FN74] Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN75] In re Wainsztein, 116 B.R. 300 (Bankr. S.D. Fla. 1990), related reference, 117 B.R. 742 (Bankr. S.D. Fla. 1990); In re Robinett, 47 B.R. 591 (Bankr. S.D. Fla. 1985).
[FN76] Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946); Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
Estate or interest in real property to which a homestead claim may attach, 74 A.L.R. 2d 1355.
[FN77] Aetna Ins. Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969); Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN78] Aetna Ins. Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969); Anemaet v. Martin-Senour Co., 114 So. 2d 23 (Fla. Dist. Ct. App. 2d Dist. 1959).
[FN79] Aetna Ins. Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969)
Mere possession without any title whatever is sufficient to support the claim of homestead, where such possession is lawful, as where it is with the consent and on the agreement of the owner.[FN80] Thus, a debtor whose home was located on public land and subject to a long term ground lease could claim a homestead exemption in the home.[FN81]
[FN80] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN81] In re McAtee, 154 B.R. 346 (Bankr. N.D. Fla. 1993).
Any equitable or beneficial interest in land gives the claimant the right to exempt it as his homestead.[FN86] This principle has been applied so as to entitle a husband to claim homestead property for which he has paid the consideration, though title has been taken in the name of his wife.[FN87]
Divorced wife was entitled to claim constitutional homestead exemption, in former attorney's action seeking foreclosure of equitable lien on wife's residence for unpaid attorney fees arising out of dissolution of marriage proceeding, even though legal title to residence was held by trustee, and wife had beneficiary interest; wife did not need to hold legal title in order to claim exemption. Fla. Const. Art. 10, § 4. Callava v. Feinberg, 864 So. 2d 429 (Fla. Dist. Ct. App. 3d Dist. 2003), reh'g denied, (Jan. 30, 2004).
The exemption from liens and forced sales accorded by the Constitution extends to whatever undivided interest the claimant may have in the lands which he or she may be in possession of and living on.[FN88] This rule is applicable where the homestead claimant has, in the disputed property, an undivided one-half interest.[FN89] Likewise, the claim of homestead may be sustained where it is shown that the claimant is in possession as a tenant in common.[FN90] However, a joint tenant who purchased his cotenant's portion of property would not be allowed to claim a homestead interest in the property, where he did not record the deed to the property until a creditor of the cotenant acquired a judgment lien against the property.[FN91]
The measure of the claimant's right of exemption is the quantity of his interest in the common property as limited by the amount specified by the constitutional homestead provisions. The claim may not exceed such limitations.[FN92]
A former spouse cannot create an enforceable lien on his undivided one-half interest in homestead property by executing a mortgage.[FN93] When the property loses it status as homestead, the lien would then be subject to enforcement.[FN94] However, homestead property is subject to partition and forced sale at the instance of one cotenant, where that is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.[FN95]
[FN88] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN89] Daniels v. Katz, 237 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1970).
[FN90] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN91] In re McCall, 69 B.R. 975 (M.D. Fla. 1987), related reference, 74 B.R. 666 (Bankr. M.D. Fla. 1987).
[FN92] Hill v. First Nat. Bank, 73 Fla. 1092, 75 So. 614 (1917).
[FN93] Daniels v. Katz, 237 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1970).
[FN94] Daniels v. Katz, 237 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 1970).
[FN95] Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978).
322 B.R. 463, 18 Fla. L. Weekly Fed. B 162
United States Bankruptcy Court,
In re Robert M. PRESTWOOD, Debtor.
Marika Tolz, Chapter 7 Trustee, Plaintiff,
Robert M. Prestwood, Colleen M. Prestwood a/k/a Colleen Murphy, and Lauren
Financial Services, Inc., Defendants.
Bankruptcy No. 02-23764-BKC-PGH.
Adversary No. 03-6609-BKC-PGH-A.
Feb. 9, 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. 10, § 4. Ultimately, all that is required to establish a homestead under Florida law is that property owner reside on property and, in good faith, make property his permanent home. West's F.S.A. Const. Art. 10, § 4. Exceptions to Florida homestead exemption should be strictly construed in favor of claimants and against challengers. West's F.S.A. Const. Art. 10, § 4.
In order to be entitled to the homestead exemption, continuous, uninterrupted residence is not required.[FN13] Although daily residence is not essential,[FN14] a homestead right does not extend to property that the claimant has not occupied as a dwelling place or home.[FN15]
A debtor was allowed to claim the homestead exemption, where he financed the property, took care of the taxes on the property, and lived on the property while he was in Florida, even though the debtor did not occupy the premises continually.[FN16]
Debtor was entitled to Florida homestead exemption in condominium which he purchased and in which he began to live nearly three years prior to his Chapter 7 filing, notwithstanding suspicious circumstances surrounding transfer of his California residence to company owned by his brother, that debtor worked for Internet-related company based in California and routinely traveled back to California for his job, that most of debtor's mail went to "mail drop" in California, that debtor's bankruptcy petition showed a California mailing address, and that, prior to petition date, debtor did not have Florida bank account or own car registered in Florida; at some point well before filing of Chapter 7 petition, debtor was living in Florida condominium, and his wife testified that, but for attempt at marital reconciliation, she thought that he would still be living in Florida at time of hearing on trustee's objection to Florida homestead exemption. West's F.S.A. Const. Art. X, § 4. In re Prestwood, 322 B.R. 463 (Bankr. S.D. Fla. 2005).