Filing a Homestead Declaration
If you own a home, you should consider filing a homestead declaration with the County Recorder in your county. A homestead declaration protects your home from being seized and sold in the event that a money judgment is entered against you by a court.
What kinds of property may be declared as a homestead?
The following types of property may be homesteaded:
(1) Land with a dwelling house on it plus appurtenances (fixtures and buildings).
(2) A mobile home, whether or not the mobile home owner owns the land on which it sits.
(3) A condominium unit.
(4) Land, dwelling house and appurtenances held under an allodial title (a title free and clear of any encumbrances for which taxes have been prepaid to the state).
Other types of property that can be claimed as long as the homeowner actually lives on the property; A Boat such as a Houseboat, a Car or Vehicle such as a Motor Home.
Who decides to declare a homestead?
The resident of the property. A single person or, in the case of a married couple, either or both spouses.
If someone obtains a money judgment from a court against me, how will a homestead declaration protect my home?
For most judgments against you, a homestead declaration protects the equity you have in your home. If you have filed homestead declaration (either before or after a levy), your home will not be sold to satisfy a judgment. The best from of protection is to make the declaration of homestead claim before any judgment, levy or lien. If allodial title has been established, the exemption extends to all equity in the land, dwelling and appurtenances.
A homestead declaration will not prevent your home from being sold to pay a judgment for:
• Property Taxes and Assessments.
• A mortgage, trust deed or other loan arrangement used to purchase or refinance your property or improvements to your property (i.e., Secured Loan).
• A construction or mechanic's lien or other obligation to pay under a contract because of improvements made to your property.
• Any lien to which you agree to under contract by accepting the property subject to codes, covenants and restrictions, deed restrictions or equitable servitudes.
How do I file a homestead declaration?
You cannot purchase a form from an office supply store. You can obtain the form from Florida Homestead Services, LLC. After the necessary information has been filled in, the person or persons who will sign the homestead declaration must sign it in the presence of a Notary Public, who will notarize the signature. A Notary Public can be found in banks, law offices, real estate offices or title companies. Finally, the notarized Declaration of Homestead must be filed with the Office of the County Recorder (Clerk of the Court) in the county in which the property is located. There are small fees for notarization of documents and for their recording with the County Recorder.
May a homestead be filed for property held by the type of title known as "tenancy in common?"
Yes. Each tenant in common may declare a homestead covering his or her interest in the property. The homestead protection is subject to the rights of each co-tenant to enforce partition of the property.
What is the appropriate time to file a homestead declaration?
Because no one can predict when death or sudden incapacity may strike, it is prudent to file a homestead declaration upon purchasing a home and taking title to it, or as soon as possible thereafter. However, a homestead declaration will protect your equity in your home provided that it is recorded with the County Recorder at any time before proceedings are instituted to cause the forced sale of your home to satisfy a judgment. So, even after a judgment has been entered against you, it is possible to record a homestead declaration.
Suppose I have substantial equity in my home. What are the procedures if there is a judgment against me?
A judge normally will require a financial affidavit that shows your equity in your property and whether the property can be divided in such a way as to protect your home while paying your judgment creditors. If such a division proves to be impractical, the property will be sold and you will not receive the protection from the forced sale. If you file your declaration of homestead, the property is fully protected which cannot be seized to pay the judgment. The claim must be made before judgment is issued to be fully effective.
Can I prepare a homestead declaration myself?
No, unless you are specially trained in the law, as the law is specific and clear on the process and filing requirements. The declaration itself is a simple one-page form, but if you do not follow the proper steps, particularly in noting the correct legal description of the property and having it notarized and recorded, you would have no legal claim and further difficulty should the need arise to invoke the declaration claim. If you feel unsure or have specific legal problems arising out of a judgment or potential judgment against you, you should contact Florida Homestead Services, LLC at http://www.floridahomesteadservices.com