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Unrecorded deed and homestead exemption

Author johnbsims3
Admin 

#1 - Posted: 7 Jan 2009 08:17 
Number: AGO 74-216
Date: July 24, 1974
Subject: Unrecorded instrument and homestead exemption


074-216 -- July 24, 1974
TAXATION
HOMESTEAD EXEMPTION -- BASED ON UNRECORDED INSTRUMENT

To: Dale Small, Hendry County Tax Assessor, LaBelle

Prepared by: Winifred L. Wentworth, Assistant Attorney General, and
Susan M. Potter, Legal Intern

QUESTIONS:
1. Does an individual's deed have to be recorded by
January 1 of the tax year for which he or she claims
homestead exemption?
2. Does that instrument have to be recorded by January
1 if homestead exemption is claimed pursuant to another
instrument?
3. Is it necessary to have an instrument recorded
before changing the name on the tax roll?

SUMMARY:
Denial of homestead exemption may not be based on a
claimant's failure on January 1 of the tax year or
thereafter to record the deed or other instrument on which
he relies, when homestead requirements are otherwise
proved. The name of the property owner may under current
law be changed on the tax roll based on proof of ownership
which is not recorded.
All three questions should, in my opinion, be answered in the
negative.
Article VII, s. 6(a), State Const. provides in pertinent part:
Every person who has the legal or equitable title to
real estate and maintains thereon . . . permanent residence
. . . shall be exempt from taxation . . . up to the
assessed valuation of five thousand dollars, upon
establishment of right thereto in the manner prescribed by
law. . . .
The legislature pursuant to the constitutional mandate in that
article enacted s. 196.031(1), F. S. (which is essentially a
restatement of the constitutional provision). Thus, neither the
State Constitution nor s. 196.031 requires the public recording of
evidence of title in order to claim homestead exemptions. Department
of Revenue Rule 12B-1.204(4)(c)(1), F.A.C., provides:
. . . [T]here is nothing in the Constitution requiring that
evidence of such title be a matter of public record . . . .
There is no requirement that title to homestead property be
recorded.
The regulations, supra, further provide that persons holding real
property under adverse possession could have sufficient title to
claim homestead exemptions. Attorney General Opinion 054-81 is in
accord. Therefore, since a tax assessor has "no authority to impose
additional conditions or restrictions," he or she cannot impose an
absolute requirement that the deed be a public record, nor, a
fortiori, that it be recorded by January 1. Maxwell v. Good
Samaritan Hospital Ass'n, Inc., 195 So.2d 255 (4 D.C.A. Fla., 1967).
Your second question, in my opinion, should also be answered in
the negative. Article VII, s. 6(a), supra, grants homestead
exemptions to "every person who has the legal or equitable title" to
real estate upon establishment of right to the exemption in the
manner prescribed by law. Pursuant to that constitutional mandate,
s. 196.041, F. S., provides that vendees in possession, together with
other described classes of ownership, "shall be deemed to have legal
or beneficial . . . title" when instruments under which the property
is held are recorded. There is, however, no affirmative expression
of a legislative intention that recordation shall be the only way to
establish an equitable or legal title. The statute does of course
provide one method of so doing, but in the absence of judicial
construction of this provision I would not imply an intent that the
prescribed method should be exclusive and mandatory. See AGO's 072-
154 and 069-46; see also AGO 051-295, September 4, 1951, Biennial
Report of the Attorney General, 1951-1952, p. 358; AGO 039-10,
February 19, 1939, Biennial Report of the Attorney General, 1939-
1940, p. 448. This interpretation is adopted by the regulation of
the Department of Revenue for homestead exemptions, Rule 12B-
1.202(4)(b)(1)(d), F.S.C., which provides that a "contract for deed
need not be recorded." The courts have consistently held that
vendees may have a taxable equitable title without recording,
Bancroft Inv. Corporation v. City of Jacksonville, 27 So.2d 162 (Fla.
1946); Johnson v. McKinnon, 34 So. 272 (Fla. 1903), see also AGO 073-
131; that the purchaser of real property may be regarded as the
beneficial owner in equity, Kozacik v. Kozacik, 26 So.2d 659 (Fla.
1946); and that statutory provisions must be construed consistent
with the rule that an express constitutional grant not be made
conditional, Sparkman v. State, 58 So.2d 431 (Fla. 1952). See AGO
069-46; AGO 051-295, September 4, 1951, Biennial Report of the
Attorney General, 1951-1952, p. 358. Consequently if a recorded
instrument is not a prerequisite for homestead exemption, neither is
its recordation by January 1.
It should be noted that my responses to the preceding questions do
not alter the constitutional and legislative requirements that the
taxpayer present proof of a legal title or beneficial title in equity
to real property in this state; and a permanent residency in the
state, Art. VII, s. 6(b), State Const. and s. 196.031(1), F. S. The
status and ownership of the property on January 1 under general law
governs its taxation. Section 192.042(1) and s. 192.053, F. S.; 31
Fla. Jur. Taxation s. 250; AGO 072-154. However, some duty has been
placed upon the taxing authorities to aid a purchaser after January 1
each year in protecting his interest. See s. 197.072(2), F. S., as
to duplicate tax notice to the vendee of a contract for deed, and cf.
Rule 12B-1.361 and s. 695.22, F. S., by application of which
supplemental, but not substitute, entries on an assessment roll may
aid in accomplishment of the statutes' directives.
It is my opinion that your third question should also be answered
in the negative.
Section 193.114(2)(e), F. S., and the Department of Revenue's
regulations, Rule 12B-1.119(2)(a), F.A.C., require the assessment
roll to reflect the "owner or fiduciary responsible for payment of
taxes." Overstreet v. Ty-Tan, Inc., 48 So.2d 158 (Fla. 1950); cf.
Rule 12B-1.108. Furthermore, s. 193.085(1) and (2), F. S., in
pertinent part provides that:
(1) The tax assessor shall insure that all real
property within his county is listed and valued on the real
property assessment roll. . . .
(2) . . . [The] individual tax assessors may use such
other maps and materials [to insure that all real property
is listed]. (Emphasis supplied.)
Therefore, even though an assessment under an "erroneous statement of
ownership" is an "irregularity," which will not relieve the taxpayer
of tax liability, the assessor is under a duty to use reasonable
means to determine the owner of the property. Sections 193.085(1)
and (2), 193.052, 193.114(2)(e), F. S., and Rule 12B-1.119(2)(a),
F.A.C., supra. See also AGO 072-250. In AGO 070-126 it was
concluded that adverse claims to property could be simultaneously
listed. Also, in AGO 070-57 a tax return which was filed by a
divorcee under her name prior to her marriage was deemed sufficient
authority to change the name on the tax roll. It is therefore my
opinion that a name can be changed on the tax roll not only by filing
a recorded instrument, but also by filing a return or by other proof
of a legal claim to the property in question. Attorney General
Opinions 070-57, 070-126, and 070-362.

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Unrecorded deed and homestead exemption
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