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Homestead Notes and Cases

Author johnbsims3
Admin Male

#1 | Posted: 27 Dec 2006 16:34 
The affidavit is required by law to make the claim, and power of attorney is legally sufficient.

The declaration does not constitute being used as a shield to any fraud or egregious conduct. 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.

Regarding the Partridge case, the entire issue is a mis-representation of the facts. The appellant's claim in the Partridge case was without merit and it was reversed. The appeals court only affirmed the contesting of subject matter jurisdiction in that opinion. What happened there was that the trial court granted a motion for summary final judgment, finding that the appellant only paid alimony arrearages when forced to pay through incarceration and that his "failure to pay alimony while expending sums of money for other purchases were done with the intent to defraud the former wife." Accordingly, the trial court authorized foreclosure on her equitable lien due to the apparent fraud. The trial court supposedly and correctly, under the facts of the trial, entered the final summary judgment in that case because the record contained evidence of the appellant's fraudulent and egregious conduct such that the fraud exception to the homestead exemption possibly applied under an equitable lien. The homestead can be the subject of an equitable lien and foreclosure by a forced sale in an appropriate case of fraud or egregious conduct.

The facts in the Partridge case show that wife had failed to receive her money, not because of husband's conduct, but because of her inability to prove that he can pay it. The court stated "We decline to hold that, because a husband possesses qualified homestead real property which he refuses to alienate or mortgage to meet support obligations, he has acted "reprehensibly" as a matter of law so as to overcome the constitutional protection against the forced sale of such property. Id. at 1311; see also Gepfrich v. Gepfrich, 582 So. 2d 743, 744 (Fla. 4th DCA 1991)(forced sale of homestead property was permitted where the former husband attempted to use the homestead exemption as an instrument to defraud his former wife and to escape his honest debt to her); cf., Radin v. Radin, 593 So. 2d 1231, 1233 (Fla. 3d DCA 1992)(the court imposed an equitable lien on homestead property due to the former husband's egregious conduct, but a forced sale was not ordered)."

Regarding Greene v. Bush, that case was also reversed and remanded. The adopted order from a hearing officer contained no findings of fact to support the recital that the appellee "has had and does have the ability to have paid and to pay" the support previously ordered by the court. With respect to the trial court's conclusions of law in that case, it appeared that the trial court was troubled by the contemplation in the recommended order that personal property be sold to generate funds to pay the purge. However, Bowen 471 So.2d at 1279 provides: "In determining whether the contemnor possesses the ability to pay the purge amount, the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained."

In the Anderson case, the father of the children, in asserting a claim of homestead exemption fought to defeat the very purpose for which the Constitution provided homestead exemption, that is, he was seeking to defeat the support of his two children claimed to be his dependents, and the courts generally do not permit such conduct. See the case of Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253, holding that in the decree of divorce the court could properly charge the home owned by husband and wife as an estate by entirely with the obligation of the husband to support his wife and minor children. In the Anderson case the judge had retained jurisdiction with regard to the entireties property and had the power, upon proper suit, to charge the interest of the husband in the former entireties homestead with the obligation to support his minor children and to order partition of the property, and the judgment that the plaintiff recover past due support money and that execution issue therefor was proper and valid. Yes, the exemption should be liberally construed in favor of protecting the family home and those whom it was designed to protect. See Havoco of Am., Ltd. v. Hill, 26 Fla. L. Weekly S416, S417 (Fla. June 21, 2000)(citing Milton v. Milton, 58 So. 718, 719 (Fla. 1912)); Myers, 671 So. 2d at 866; Cain, 549 So. 2d at 1163, but can only be defeated through an affirmative finding of fraud or egregious conduct. At the same time, it has been held that exceptions to the exemptions should be strictly construed.

In Gepfrich, the appeal was on the trial court's order holding that the former husband shall pay alimony arrearages to the former wife, and that he shall sell his home, with the proceeds from the sale to be applied toward the arrearages. The trial court ruling implied that the husband had purchased his home and was asserting the homestead exemption for the sole purpose of defeating the former wife's attempt to enforce his obligation to pay her alimony. The homestead law did not protect the former husband from a forced sale to pay alimony arrearages because he was found to be affirmatively engaged in fraud. The former husband bought the house after the dissolution, lived with his girlfriend, supported his girlfriend, and was found after a proper trial, to be attempting to defraud former wife. According to the order, the trial court expressly found that it was incomprehensible that the husband could support his lady friend, who made no meaningful contribution to the support and maintenance of his expensive and luxurious home, but could not support his former spouse and minor child. The trial court also expressly found that the husband's defenses to his former wife's motion for contempt constituted a complete lack of "clean hands." Thus, it was clear from that case that the trial court did not intend to sanction a situation where a former husband invested his consolidated assets into an expensive and luxurious home, lived in the home with his girlfriend, maintained her and the house, and cried poverty to avoid paying his alimony obligations to his former wife. I, and the court certainly agree that this trial court should not sanction such a blatantly defrauding scheme by permitting any former husband to hide behind the homestead exemption laws in any situation, which is in no way related to your case to my knowledge. The court should not create the imposition of an equitable lien, because everyone is innocent of any wrongdoing until proven otherwise.

In Trammel, a civil forfeiture action was brought against real and personal property allegedly used in connection with drug offenses. The homestead guarantee does not prohibit forfeiture of homestead property when proceeds in violation of the Florida Contraband Forfeiture Act are invested in or used to purchase property. The court ordered the homestead forfeited on the grounds that the proceeds of illegal activity were used for its purchase and to hide the illegal money, which is one of the only exceptions outside of the statute, and is based again on the fraud issue.

In Graham v. Azar, 204 So.2d 193, Fla. 1967 the court had to decide whether the head of a Florida family can claim a constitutional homestead exemption against a money judgment for child support recovered by a former wife. The law was finally settled in that case. The rule of the decisions Mr. Baron cited is not dispositive of the case before the court in this matter. I'd like to hear Jay and Marian's comment on this if possible, and go to the hearing to listen.

It is apparent that where equity demands it, the courts have not hesitated to permit equitable liens to be imposed on homesteads beyond the literal language of the constitution. However, the court should not be so concerned with the constitutional language as it should be with its belief that an equitable lien could not be imposed because Carlos is not a party to any fraud until proven. In other cases, there was no fraud involved (See La Mar or Sonneman) In those cases, the equitable liens were imposed to prevent unjust enrichment. Moreover, in both cases the homestead interest of the spouse of the party whose conduct led to the unjust enrichment was also subject to the equitable lien. It may be true, as contended by the wife, that this case is based upon some direct, immediate, willful and flagrant fraud; however, it is not for the lawyer Mr. Baron, to decide that. The authority for the proposition that a lien might arise which may be enforced against the homestead, even though it is not in specific terms included in the constitutional provision, is well settled.

As for the equitable lien, there is certainly some evidence from which a court might begin to justifiably compare his conduct to Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991) (forced sale of man's homestead proper where it was used to defraud former spouse and avoid payment of marital judgment debt to her). Here, however, the court did not make any finding that the husband is using the newly acquired homestead itself as an "instrument of fraud" or as a means to escape his support obligation to his wife. While the trial court expressly relied on Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), this record lacks the particularized evidence and findings detailed there, except perhaps for an "adamant" refusal to produce the financial information the court had several times ordered produced. On remand, to reconsider the imposition of an equitable lien, the court may receive additional evidence and should make specific findings.

Tullis v. Tullis, 360 So.2d 375 (Fla.1978)(homestead should be protected against forced sale when possible, but not at expense of others owning interest in property, so where forced sale is only way former wife can enjoy beneficial enjoyment of her undivided one half interest in property, partition is appropriate).

The attorney(s) may have to move for declatory judgment on the validity of the claim, then move for trial on the fraud or egregious conduct issue in order to foreclose on any equitable lien. If there is no competent and substantial evidence to support a finding that a homeowner is engaged in fraud or egregious conduct in order to avoid his obligations, he stands in no worse position than he stood before and his claim will stand.

Although this is lengthy, I hope this helps. I can supply plenty more authority if required.


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Homestead Notes and Cases
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