Abandonment Of Homestead
Once a homestead has been established, it may later be abandoned. However, the debtor must demonstrate a clear intent to change residence in order to abandon the homestead. Abandonment includes more than a temporary involuntary absence from the residence; there must be an absence of intent to return to the homestead. Evidence of abandonment is shown through the establishment of a new domicile or alienation of the present one. However, "continuous uninterrupted physical presence is not required to create a homestead exemption." M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71, 72 (Fla. 2d DCA 1982).
The homestead is not abandoned when the owner involuntarily changes residence because of illness or confinement to a hospital. See also In re Betancourt, 154 B.R. 90 (Bankr. S.D. Fla. 1993) (property rented out under one-year lease so owner could help family member in another state; no testimony to support abandonment). Abandonment does not occur by divorce when the owner moves but the dependents continue to live on the property. In re Estate of Melisi, 440 So.2d 584 (Fla. 4th DCA 1983). The homestead may not even be sold in a foreclosure action for lien for unpaid child support. Smith v. Smith, 761 So.2d 370 (Fla. 5th DCA 2000) (court suggested partition as remedy).
There was a split among Florida courts as to whether the homestead exemption is a defense against forfeiture under RICO based on illegal activities on the property. Therefore, this question was certified to the Florida Supreme Court in Caggiano v. Butterworth, 583 So.2d 347 (Fla. 2d DCA 1991), citing conflict with DeRuyter v. State, 521 So.2d 135 (Fla. 5th DCA 1988). In Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992), the Florida Supreme Court approved the district court holding in Caggiano and held that the homestead exemption is a defense to forfeiture under RICO. See Eustace, The Purist View Prevails: Butterworth v. Caggiano Prohibits Homestead Forfeiture, 22 Stetson L. Rev. 1111 (Summer 1993). In addition, an innocent wife's interest in homestead property was protected from forfeiture for the husband's illicit drug activity because of Florida's homestead exemption in United States v. One Single Family Residence With Out Buildings Located at 15621 S.W. 209th Avenue, Miami, Florida, 894 F.2d 1511 (11th Cir. 1990).
Normally, vacating the property with intent to convey it is evidence of abandonment. However, because the proceeds of a sale of homestead may also be exempt from the claims of creditors (see §6.7), vacating the property two months before the sale in accordance with a contract may not be an abandonment. Furthermore, the home is exempt from creditors' claims after the sale to the buyer. Under the Florida Constitution, creditors' liens never attach to the homestead. Brown v. Lewis, 520 F.Supp. 1114 (M.D. Fla. 1981).
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