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Attorney General Opinion 058-329 - Extended Absence - Temporary Absence

Author johnbsims3
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#1 | Posted: 17 Nov 2012 10:24 

Attorney General Opinion 058-329 December 10, 1958
(Revision of AGO 058-229)



To: Ray E. Green, State Comptroller, Tallahassee

Where a person, entitled to and receiving homestead tax exemption pursuant to 7, Art. X, State Const., accepts governmental employment in another county, state or place, where he is required to reside during such employment, is he entitled to further homestead tax exemption where the homestead is leased or rented to others and the absence extends over a number of years?

Article X, of the Florida constitution, makes provision for two classes of homestead exemption, one, an exemption from the enforcement of ordinary obligations, and' the other, an exemption from taxation. Under 1 of said article it is provided that "a homestead to the extent of one hundred sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this state . .. and the improvements on the real estate, shall be exempt from forced sale under process ' of any court ...." Under 7 of said article "every person who has the legal title or beneficial title in equity to real property in this state and who 1'esides thereon and in good faith makes the same his or her pe1"'manent h011~e or the permanent home of another or other legally or naturally dependent upon said person, shall be entitled to an exemption from taxation, except for assessments for special benefit, up to the total assessed value of five thousand dollars on said home and contiguous real property ...."

Homesteads entitled to exemption from forced sale must be "owned by the head of a family residing in this state. "Although this constitutional provision does not expressly require residence upon the homestead property, the courts have construed the section as requiring actual residence upon the property itself, and not merely within the state. Actual residence upon the property claimed as a homestead is essential to establish the homestead (Solary v. Hewlett, 18 Fla. 756; Matthews v. Jeacle, 61 Fla. 686, 55 So. 865; Lanier v. Lanier, 95 Fla. 522, 116 So. 867; Anderson Mill and Lumber Co. v. Clements, 101 Fla. 523, 134 So. 588; Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 13 So. 2d 448). In the light of the rule adopted by the court as to the first section, the residence requirement of said 1 and 7 are substantially the same.

Section 192.14, F. S., provides that the term "permanent home" or "permanent residence" "shall not be construed so as to require continuous physical residence on the property, but means only that place which the person claiming the exemption shall rightfully and in good faith call his home to the exclusion of all other places where he may, from time to time, temporarily reside." The court, relative to homesteads under 1, stated that "a temporary absence of the head of a family in search of health, pleasure or for business reasons will not deprive the homestead of its character and status as such unless there was a design of permanent abandonment." (Lanier v. Lanier, 95 Fla. 522, 116 So. 867, text 868; see also Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So. 2d 448, text 450).
Jacksonville v. Bailey, 159 Fla. 11, 30 So. 2d 529, involved a parcel of land in Jacksonville claimed by Bailey as his homestead and as exempt from taxation under 7 Art. X, State Const. Bailey removed from the premises claimed as his homestead and as tax exempt, around the first of December, and "resided temporarily in another location," returning to the premises from which he moved around the first of March of the following year. "He removed from the premises only his necessary belongings, leaving the house fully furnished and equipped," and rented the same to another, who resided therein, during the period of the absence of the owner. This was held not to be an abandonment of the homestead tax exemption rights of the owner. The property was held exempt under said 7 Art. X, State Const., notwithstanding such removal and rental.

In the Bailey case the court stated that "we held in Lanier v. Lanier, 95 Fla. 522, 116 So. 867, that temporary absence from the homestead of the head of the family for health, pleasure or business reasons would not deprive the property of its homestead character. See also Collins v. Collins, 150 Fla. 374, 7 So. 2d 443; Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So. 2d 448," and further stated that "temporary absence, regardless of the reason for such, from the homestead, will not deprive it of that character, providing an abiding intention to return is always present." This abiding intention to return, is not to be determined from the words of the homesteader, but is a conclusion to be drawn from all the applicable
facts. The circuit court, in the case of McCullough v. Forbes, tax assessor (47 So. 2d 780), stated that "the petitioner testifies that she has not abandoned the home so far as the mental attitude and intent are concerned. She claims it as her home, she says it is her castle. All this is shadow and the substance is that in truth and in fact her intent is not the substance, but the substance of this matter is the fact that the land is no longer her residence. Her age and her physical condition have nothing to do with the case, except as bearing on her intent, and age and physical condition should be considered in this connection. But intent is not sufficient to make residence. Intent is a part of the whole which constitutes residence." The circuit court's decree was affirmed per curiam by the, supreme court, (McCullough v. Forbes, Fla., 47 So. 2d 780).

The court, in L'Engle v. Forbes, Fla., 81 So. 2d 214, text 216, while considering 192.14, F. S., stated that "we think it can fairly be said that the legislature intended to adapt, to the homestead tax exemption privilege conferred by section 7, supra, the rules previously developed by this court with respect to the homestead
character of property within the meaning of sections 1 and 4 of article X. While this court has not expressly so held in any previous decision, we have done so impliedly by citing cases involving the exemptions granted by sections 1 and 4 as authority for a decision involving the character of property for the purpose of homestead tax exemption under section 7, see City of Jacksonville v. Bailey, supra, 30, So. 2d 529 ..."

''It is always a question of fact in each particular case whether abandonment (of a homestead) has actually occurred" (Jacksonville v. Bailey, 159 Fla. 11, 30 So. 2d529, text 530). Whether evidence of abandonment of homestead establishes an -abandonment is a question of fact to be established from the preponderance of all the evidence (Nelson v. HaiI11in, 89 Fla. 356, 104 So. '589, text 590; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521, text 523; Beck v. Wylie, Fla., 60 So. 2d 190, text 192; 40 C. J. S. 675, 198). "In order to warrant a conclusion that the claimant's right to homestead has been lost, it must appear that the claimant relinquished possession of the premises and removed 'therefrom and that his' removal 'was accompanied by an intention to discontinue his use of the premises as a home" (26 Am. Jur. 119, 193). "The removal of the family from the home and their prolonged absence may constitute a prima facie case of abandonment, and create against the claim of homestead a presumption which must be rebutted before
such claim can be sustained" (26 Am. Jur. 120, 193). In McCullough v. Forbes, Fla., 47 So. 2d 780, by reference to the transcript of record thereof in the office of the clerk of the supreme court, it was held that a homestead claimant's statement of an intention to return to his homestead and that there has been no abandonment of
it, is not conclusive but merely evidence of an intention not to abandon, to be taken into consideration in connection with any, other evidence bearing upon the same question. "Declarations may be relevant evidence as to the existence of a particular intent or intention in the mind of the declarant" when intent or intention is material to the issue. Such "declarations are not direct evidence of the facts asserted, but merely circumstantial evidence as to the existence of some relevant and material fact" (31 C. J. S. 1007-1008, 256). The length of time which the homesteader remains away from the premises after removal might tend to raise a presumption of abandonment, but such duration of the absence is not conclusive evidence of abandonment. (40 C. J. S. 677-678, 198).

In Murphy v. Farquhar, 39 Fla. 350, 22 So. 681, Farquhar and wife, who resided on a farm some miles from Tarpon Springs, established a business in Tarpon Springs and moved from their homestead into Tarpon Springs where they occupied a dwelling as a place of abode for several years, making frequent trips back to the claimed homestead, often spending the weekends there; however, they carried prepared food for their consumption while away from their residence in Tarpon Springs. There is indication in the opinion that had such been the only facts involved, that the .claim for homestead would have been sustained; however, in addition to these facts it appeared that there had been an attempted transfer of title from the husband to the wife, and that the husband had registered and voted in the Tarpon Springs voting precinct instead of the one in which the claimed homestead was located. The court held that upon all the facts, notwithstanding the claimed intention to return to the property and use it again as a home, there had in fact been an abandonment of the homestead. It would be helpful for those interested in the question to study the annotation appearing in 102 American State Reports, pp. 388-412, relating to the abandonment of homesteads.

Although "temporary absence from the homestead of a homesteader for health, pleasure or business would not deprive the property of its homestead character" (City of Jacksonville v. Bailey, 159 Fla. 11, 30 So. 2d 529, text 530) where there is an honest and actual intention on the part of the homestead owner to return to his homestead and take up residence there again, this intention being a state of the mind is not proven merely by the statement of the homestead claimant, but is to be' determined from all available evidence. The continued expressed intention of a landowner that he intends to return to his property and further maintain it as a homestead although prima facie evidence of that fact, is not controlling and will be overcome by evidence to the contrary. Such expressed intention is merely one item of evidence to be considered in connection with other available evidence. In the McCullough case it was quite evident that Mrs. McCullough, in her own mind, entertained an abiding intention to return to the property claimed as her homestead and further maintain it as such; however, other evidence, including her age, state of health and physical condition, clearly demonstrated that she could not and would not be able to further maintain "the property as her homestead, whether she admitted it or not. In the Bailey and L'Engle cases there was no like, similar or other evidence sufficient to overcome the express intention of the homesteaders to return to their premises after temporary absences.

Although the rule seems to be that an absence from one's homestead for an extended length of time is not of itself an abandonment of the homestead, such an absence may raise a presumption sufficient to cast the burden on the claimant to satisfy the tax assessor that there has in fact been no abandonment. Such an absence may be taken, together with other evidence tending to show an abandonment, to show an abandonment and no actual intention to return to the property and further maintain it as a homestead. The lease or rental of the homestead is evidence, which when taken and considered with all other available evidence, tending to prove an abandonment; but may not be sufficient evidence to prove abandonment within itself. The question of abandonment of a homestead, by reason of absence, leasing, etc., is a matter of fact to be determined from all the available evidence. Mere absence from one's homestead for "health, pleasure or business reasons" (Jacksonville v. Bailey, supra) is not of itself an abandonment, but may be considered, in connection with all other available evidence, in determining whether there has been or has not been an abandonment of the homestead.

The above stated question is one which must be answered from the facts, circumstances and evidence applicable in each particular case, considered in the light of the above and foregoing legal observations, cases and authorities.

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Attorney General Opinion 058-329 - Extended Absence - Temporary Absence
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