# Posted: 27 Jun 2012 19:40
Here is the controlling case on ALF's:
687 So.2d 1325 (1997)
Robert CRAIN, Appellant,
Douglas PUTNAM, as Property Appraiser, Dorothy J. Conrad, as Tax Collector and Lawrence Fuchs, as Executive Director of the Department of Revenue, State of Florida, Appellees.
District Court of Appeal of Florida, Fourth District.
January 29, 1997.
Rehearing Denied March 14, 1997.
Charles E. Ray of Messer & Ray, Port St. Lucie, for appellant.
B. Jordan Stuart of Wood & Stuart, P.A., DeLand, for appellees.
The St. Lucie County property appraiser denied a homestead exemption in 1994 for the reason that the owner, an elderly woman, had not lived in her home since 1992, when she was placed in a nursing home in a vegetative state. We conclude that she was still entitled to the exemption.
Vivian Crain suffered extensive brain damage as a result of an illness in 1992, and after being hospitalized for a short time, was placed in a nursing home where she remained until her death in 1995. In 1994 her son, the appellant, applied for a total exemption from taxation on the property pursuant to section 196.101, Florida Statutes (1993) entitled "Exemption for totally and permanently disabled persons," which provides, among other things:
(1) Any real estate used and owned as a homestead by any quadriplegic is exempt from taxation.
(2) Any real estate used and owned as a homestead by a paraplegic, hemiplegic, or other totally and permanently disabled person, as defined in s. 196.012(11), who must use a wheelchair for mobility or who is legally blind, is exempt from taxation.
Although the exemption had not been contested in 1993, the property appraiser denied the exemption in 1994 because Mrs. Crain did not reside on the property, which precipitated this declaratory action. The trial court agreed with the property appraiser, and Mrs. Crain's son, who succeeded to her interests, has appealed.
The issue is whether the property was being "used" within the meaning of section 1326*1326 196.101(1) or (2). That word is defined in section 196.012(4) as follows: "Use" means the exercise of any right or power over real or personal property incident to the ownership of the property.
Section 196.012(13) provides in part: "`Real estate used and owned as a homestead' means real property to the extent provided in s. 6(a), Art. VII...."
Article VII, section 6(a) of the Florida Constitution, entitled "Homestead Exemptions," provides in part: "Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner shall, ... be exempt from taxation thereon...."
The relevant facts are undisputed. At the time Mrs. Crain was involuntarily taken from her homestead to the hospital, and at all times thereafter, her physical and mental condition were such that she would not have been able to communicate any intention regarding her residence. She remained in a vegetative state. Her furniture, clothing and most of her other possessions remained in the home, and she continued to receive mail there. The trial court concluded as a matter of law, that if Mrs. Crain "was not actually residing on the property, for whatever reason, no exemption is available."
Our research does not reveal any cases involving similar facts with regard to the Article VII homestead exemption for taxation; however, there are several cases with similar facts involving the homestead exemption in Article X, section 4, Florida Constitution, which exempts homesteads from forced sale and limits their devise.
In In re Estate of Melisi, 440 So.2d 584 (Fla. 4th DCA 1983), the home had been owned by a married couple, who had a child, but the marriage had been dissolved and the wife was awarded child custody and exclusive possession of the jointly owned home. When the former husband died, the question arose as to the homestead character of the property under Article X of the Florida Constitution. We held that the fact that the owner had been precluded by dissolution of marriage from residing on his homestead did not destroy the homestead nature of the residence. We also said: "The homestead character of the property is not abandoned when the owner involuntarily changes his residence, as in a case where an infirmity requires residence in a nursing home or hospital facility." Id. at 585.
Similarly, in Nelson v. Hainlin, 89 Fla. 356, 104 So. 589 (Fla.1925), our supreme court held that the fact that the husband had spent the "latter years" of his life away from the homestead, so that he could be cared for in a neighbor's home and his daughter's home, did not destroy the homestead nature of the property for purposes of devise. See also Stokes v. Whidden, 97 Fla. 1057, 122 So. 566 (Fla.1929) (property was still homestead after husband had become insane and had remained in a state institution).
We recognize that the homestead provisions found in Article VII and Article X of our constitution are separate and distinct, and principles relating to one do not necessarily govern the other. We see no reason in this case, however, why, if Mrs. Crain would not have lost her homestead exemption under Article X, she should have lost it under Article VII. Nor would allowing the exemption violate any of the provisions of Article VII or any of the provisions of Chapter 196 which implement Article VII.
It is apparent that, but for the fact that Mrs. Crain was not physically residing in her home, the trial court would have granted the exemption. Having concluded that her physical presence is not a requirement for the exemption under these facts, we reverse and remand for entry of judgment in favor of appellant.
GROSS, J., and GERSTEN, CAROL R., Associate Judge, concur.
# Posted: 18 Nov 2012 07:02
Here is the AGO on the issue...
Mar 27, 1997 AGO 97-019
Mr. Steven A. Schultz, Attorney
Dade County Value Adjustment Board
First Union Financial Center, Suite 3150
200 South Biscayne Boulevard
Miami, Florida 33131-2311
Dear Mr. Schultz:
As attorney for the Dade County Value Adjustment Board, you have
requested an opinion on substantially the following question:
Must a taxpayer physically occupy residential property on
January 1 of the relevant tax year in order to initially
qualify for the homestead tax exemption established by
Article VII, section 6, Florida Constitution?
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.
You have asked whether "physical occupancy" of residential
property is required in order to initially qualify for the
homestead tax exemption established by Article VII, section 6,
Florida Constitution. The Constitution and the relevant
statutes do not require the physical presence of the property
owner on January 1, rather the owner must "reside" on the
property and use it as a homestead. Based on Florida court
decisions, I conclude that physical presence is not the
equivalent of residence.
The Dade County Value Adjustment Board is a quasi-judicial
governmental body created pursuant to section 194.015, Florida
Statutes. Among other things, the board hears appeals initiated
by taxpayers contesting the denial of tax exemptions or the
valuation of their properties for tax purposes by the Dade
County Property Appraiser. The board, after a hearing, has the
power and duty to grant tax exemptions, including homestead
exemptions, for those properties it determines to be eligible
for such exemptions, based on established legal principles and
the evidence presented. In light of these powers and duties,
the board has requested this office's assistance in determining
the applicability of the homestead exemption.
It is an elemental part of the tax law of Florida that, in order
to qualify for the benefit of a tax exemption, the person
seeking the exemption must clearly come within the requirements
and scope of the law granting the exemption.(FN 1) While
doubtful language in taxing statutes should be resolved in favor
of the taxpayer, the reverse is applicable in the construction
of exceptions and exemptions from taxation.(FN 2) The question
of residence and its permanency must be determined from all the
facts and circumstances by the property appraiser in the first
instance and may not be usurped by this office or by another
Florida's tax exemption for homesteads is provided by Article
VII, section 6, Florida Constitution, and section 196.031,
Florida Statutes. The constitutional provision does not
establish an absolute right to a homestead exemption; rather,
the exemption may be granted to an applicant only "upon
establishment of right thereto in the manner prescribed by
law.(FN 4)" However, interpretation of the homestead exemptions
under Florida law are entitled to consideration in the "liberal
and beneficent spirit in which they were enacted to protect the
family home."(FN 5)
Section 196.031, Florida Statutes, which substantially tracks
the language of and implements the constitutional provision
(1) Every person who, on January 1, has the legal title or
beneficial title in equity to real property in this state
and who resides thereon and in good faith makes the same
his or her permanent residence, or the permanent residence
of another or others legally or naturally dependent upon
such person, is entitled to an exemption from all taxation,
except for assessments for special benefits, up to the
assessed valuation of [$25,000] on the residence and
contiguous real property, as defined in s. 6, Art. VII of
the State Constitution....(FN 6)
Thus, based on the use of the conjunctive "and" in section
196.031(1), Florida, Statutes, entitlement to Florida's
homestead exemption from taxation is determined by the
simultaneous existence of three factors on January 1 of the tax
year: 1) possession of legal or equitable title to the property,
and 2) residence on the property, and 3) the intention of the
taxpayer to make the property their permanent residence.(FN 7)
Further, the administrative rule adopted by the Department of
Revenue to implement section 196.031, Florida Statutes,
(1) For one to make a certain parcel of land his permanent
home, he must reside thereon with a present intention of
living there indefinitely and with no present intention of
(2) A property owner who, in good faith, makes real
property in this state his permanent home is entitled to
homestead tax exemption[.](FN 8)
Considering the constitutional provision, the statute, and the
administrative rule set out above, this office in Attorney
General's Opinion 79-50 concluded that "[i]t is necessary for
all persons, including military personnel, who own real
property, or those persons who are legally or naturally
dependent upon such owners, to occupy the real property as a
permanent home or place of residence in order for the owner
thereof to be entitled to the constitutional homestead exemption
from taxation."(FN 9) As this office noted in that opinion, the
language of Article VII, section 6, Florida Constitution, makes
occupancy essential to the establishment of a homestead and
entitlement to a homestead tax exemption.
However, the courts have noted that mere physical presence on
the property is not determinative in resolving entitlement to a
homestead exemption. Most recently in Crain v. Putnam,(FN 10)
the Fourth District Court of Appeal reviewed the denial of a
homestead exemption because the property owner, who had not
lived in her home since 1992, had been placed in a nursing home
in a vegetative state. While this case involved the renewal of
an exemption rather than an initial application, the courts
discussion relates to the requirement of physical presence on
the property and is applicable to your inquiry.
In this case the property owner was involuntarily taken from her
homestead to the hospital and, because of her physical and
mental condition, she could not have communicated any intention
regarding her residence. She remained hospitalized in a
vegetative state. Her furniture, clothing and most of her other
possessions remained in the home, and her mail was delivered
The trial court concluded that if the property owner was not
actually physically present on the property, for whatever
reason, no homestead exemption was available to her. The
appellate court reversed, recognizing that all other factors
evidenced the intent that the home was the residence of the
property owner and holding that her physical presence on the
property was not a requirement for the exemption.
Further, the language of the statute itself, section 196.031(1),
Florida Statutes, recognizes that the owner of property may
claim a homestead exemption without the necessity of physical
presence on the property. The statute provides that if the
property is "the permanent residence of another or others
legally or naturally dependent upon such person[,]" the property
owner may be eligible for a homestead tax exemption without
regard to whether the property owner resides on the property.
Accordingly, it is my opinion that a taxpayer must reside in
residential 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 determined that actual
physical presence on the property is not a constitutional or
statutory requirement for entitlement to the exemption.
Robert A. Butterworth
FOOTNOTE 1 See, Green v. Pederson, 99 So.2d 292 (Fla. 1957).
FOOTNOTE 2 United States Gypsum Company v. Green, 110 So.2d 409
(Fla. 1959); Straughn v. Camp, 293 So.2d 689 (Fla. 1974); State
v. Thompson, 101 So.2d 381 (Fla. 1958); and Lake Garfield
Nurseries Company v. White, 149 So.2d 576 (Fla. 2d DCA 1963).
FOOTNOTE 3 See, s. 196.151, Fla. Stat. And see, Ops. Att'y Gen.
Fla. 82-99 (1982), 79-50 (1979), 74-115 (1974), 72-154 (1972),
and 58-329 (1958).
FOOTNOTE 4 Horne v. Markham, 288 So.2d 196, 199 (Fla. 1973)
FOOTNOTE 5 see, e.g., Op. Att'y Gen. Fla. 71-398 (1971); and
cf., In re: Estate of Skuro, 467 So.2d 1098 (Fla. 4th DCA 1985),
aff'd, 487 So.2d 1065 (Fla. 1986) and Cain v. Cain, 549 So.2d
1161 (Fla. 4th DCA 1989) (homestead exemption is to be construed
liberally for benefit of those whom it is designed to protect).
FOOTNOTE 6 See, s. 196.031(3)(e), Fla. Stat., changing the
assessed valuation from $5,000 to $25,000 for levies of taxing
authorities other than school districts.
FOOTNOTE 7 See, s. 196.015, Fla. Stat., setting forth relevant
factors that may be considered by the property appraiser in
making his or her determination regarding the establishment of
permanent residency in this state.
FOOTNOTE 8 Rule 12D-7.007, Florida Administrative Code.
FOOTNOTE 9 And see, Op. Att'y Gen. Fla. 74-115 (1974) ("[B]oth
military personnel and civilians must satisfy the permanent
residence requirement of the Constitution and statutes before a
homestead exemption may properly be granted. An exception is
provided by ss. 196.061 and 196.071, F.S., so that military
personnel who have qualified for Florida's homestead exemption
but later transfer their residence temporarily to another
location because of their military duties will not lose their
Florida homestead tax exemption.")
FOOTNOTE 10 22 FLW D287 (Fla. 4th DCA Opinion filed January 29,