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The purpose of the Florida homestead exemption

Author johnbsims3
Admin Male

#1 | Posted: 5 Dec 2006 18:56 
Florida homestead exemption serves compelling public purpose of promoting stability and welfare of the state by securing to the householder a home, so that householder may live beyond reach of financial misfortune. Under Florida law, homestead exemption may not be used to shield property from: (1) payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; or (3) obligations contracted for house, field or other labor performed on realty. Under Florida law, intent to establish homestead is evidenced by debtor's specific acts toward creating a permanent abode which are not contradicted by debtor's subsequent behavior, thus under Florida law, homestead is established when there is actual intent to live permanently in place, coupled with actual use and occupancy. All that is required to establish homestead is that property owner reside on property and in good faith make the same his permanent home. When there is "actual intent to live permanently in a place, coupled with actual use and occupancy" the claim must be made in writing.

If a debtor does not select exempt property prior to a levy, the officer is not bound to make the exemption for the debtor, but may seize all the property. However, if the property is claimed as exempt, the officer should make an attempt to see that the exemptions are 'set apart' or 'set out'. Failure to set apart the property under levy constitutes a waiver of that exemption. Also, creditors are presumed to know the law and its provisions as to homestead exemptions, and have it within their power to protect themselves by taking such steps as will assure them against loss.

The homestead must be selected and claimed by the homestead claimant by making, signing, and acknowledging a declaration of homestead . . . which declaration must, be legally sufficient.

If no such declaration or designation of homestead claim is filed or served as herein provided, title shall not pass to the purchaser at a subsequent sale free and clear of all homestead rights if there is a judgment against the owner. The statutes must be read together and the most reasonable construction is that the homestead is immune from judgment lien, execution or forced sale, providing a formal declaration of the existing exemption is made and filed in the court record prior to the time set for sale or execution.
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Author johnbsims3
Admin Male

#2 | Posted: 13 Oct 2008 14:30 
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]


Cases:
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).

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[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]

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[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]

Cases:
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]

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[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).
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The purpose of the Florida homestead exemption
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