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Homestead Requirements

Author johnbsims3
Admin Male

#1 | Posted: 27 Dec 2006 16:35 
The homestead exemption is not dependent on an interpretation of the property involved or of the debtor's title to the property. The Constitution does not expressly require the owner or his family to occupy the place claimed as a homestead. However, the word "homestead" implies occupancy as the home place. Consequently, in order that the claim of homestead be sustained, the disputed premises must be occupied as a homestead by the claimant as his actual residence.

Observation:
The fact that a debtor had never filed a tax return in the United States was not sufficient to demonstrate that the debtor did not live in the home in question for purposes of the homestead exemption.
The mere fact of filing a declaration of homestead, as prescribed by statute, does not of itself impress on the disputed premises the quality of homestead, and does not take the place of occupation of the property. It is necessary that the claimant first occupy the premises as a home.

Statutes:
A taxpayer must reside on the property on January 1 of the relevant tax year in order to satisfy the requirements of Article VII, section 6, Florida Constitution, and section 196.031, Florida Statutes, which authorize the tax exemption for qualified homestead property. However, Florida courts have held that the physical presence of the owner is not a requirement of either the Florida Constitution or the statute. 1997 Atty Gen Op 97-19.

Cases:
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. X, 4. In re Prestwood, 322 B.R. 463 (Bankr. S.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. 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]

Illustration:
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]

CUMULATIVE SUPPLEMENT:

Cases:
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).

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).

[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]


[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).
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] 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]

[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).
[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).
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Homestead Requirements
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