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johnbsims3
Admin
# Posted: 22 Jun 2007 14:45
Reply 


Abandonment

1. The act of giving up or proscribing completely. Yielding, ceding or giving up totally, especially ceding permanent control to another.
2. The voluntary relinquishment or surrender of property, or an interest in property, without any intention of resuming enjoyment or possession, or of vesting it in anyone else. The disclaiming of a right, expressly or by implication, without leaving any evidence of an intention to reclaim that right. Thus, abandonment requires two elements, an intention to relinquish a right or property and the act by which the intention is carried into effect (Roebuck v. Mecosta County Road Comm'n, 59 Mich App 128, 229 NW.2d 343, 345-6 (1975)).
The ownership of a fee title to land may be given away or sold, and it may be lost by the adverse possession; but it cannot be abandoned (East Tennessee Iron & Coal Co. v. Wiggin, 15 CCA 510, 68 F 446, 37 US 129 (6th Cir. Tenn 1895); Waldrop v. Whittington, 213 Miss 567, 57 So.2d 298 (1952); Jones v McClean (1931) 2 DLR 244 (Can)). A right to possession or use of an interest in land may be abandoned, provided there is an intention not to resume that right or interest, or some overt act or failure to act that supports that intention.
Simply not using an easement does not of itself constitute abandonment. There must be a clear intention to abandon, or an overt act that is repugnant to the right of user (Swan v Sinclair [1924] 1 Ch 254, 266, aff'd [1925] AC 227 (HL)); Zimmerman v. Young, 74 Cal App.2d 623, 169 P.2d 37 (1946); Ellis v. Brown, 177 F.2d 677 (6th Cir. Ky 1949); Gabel v. Cambruzzi, 532 Pa 584, 616 A.2d 1364, 1367 (1992); Pekarek v. Votow, 216 AD.2d 829, 628 NYS.2d 859 (1995); 28A C.J.S., Easements, § 126). For example, keeping a doorway bricked up for a number of years may not of itself amount to a sufficient indication of an intention not to reopen it; but removing a wall that contained a window, and then waiting many years before rebuilding it, shows that the beneficiary does not need the right to the light and demonstrates an intention to abandon the need for the right of light (Cook v Bath Corp'n (1868) LR 6 Eq 177, 18 LT 123; Williams v Underwood (1983) 45 P & CR 235, 256; Ernst v. Keniry, 19 AD.2d 938, 244 NYS.2d 239 (1963); Anno: 98 ALR 1291: Loss of Easement).
A lease cannot be abandoned unilaterally during its term (Colles v Evanson (1865) 19 CB (NS) 372, 19 Eng Rep 831; In Gruman v. Investors Diversified Services, Inc., 247 Minn 502, 78 NW.2d 377, 380 (1956); K & C Associates v. Airborne Freight Corp., 20 Wash App 653, 581 P.2d 1082, 1084 (1978)). However, if a tenant leaves the premises that are leased to him empty, or demonstrates a manifest intention not to occupy the premises, and then permits the landlord to re-enter and take absolute and unqualified possession of the premises, the tenancy may be said to have been abandoned; or, more precisely, the tenant has offered, and the landlord has accepted a surrender of the possession. There may be said to be a 'surrender by operation of law' (Phene v Popplewell (1862) 12 CB (NS) 334, 342, 142 Eng Rep 1171; tenBraak v. Waffle Shops, Inc., 542 F.2d 919, 924 (4th Cir. Va 1976); Atkinson v. Rosenthal, 598 NE.2d 666, 668 (Mass App Ct 1992); 51C C.J.S., L & T, § 124; 2 Powell on Real Property, § 17.05[1], 17-74). Alternatively, there may be a form of constructive eviction where the landlord takes an action that prevents the tenant's further use of the premises.
In the US, there is a considerable difference of opinion as to whether a landlord has a duty to mitigate the tenant's loss by taking steps to relet the premises after the tenant has abandoned them. In some jurisdictions, if a tenant abandons the demised premises before the end of a term and the landlord re-enters, the landlord is obliged to make reasonable efforts to relet the premises in order to minimize any claim that he may have against the tenant for past rent due (e.g. Snyder v. Ambrose, 203 Ill Dec 319, 266 Ill App.3d 163, 639 NE.2d 639, 640 (1994)). As a corollary, some jurisdictions take the view that reletting the premises amounts to accepting a surrender of the lease by the landlord, relieving the tenant of all further liability for payment of rent (e.g. Mesilla Valley Mall Co. v. Crown Industries, 111 NM 663, 808 P.2d 633 (1991)). Whereas other jurisdictions take the view that even if the premises are relet, the tenant remains liable for any loss of rental value suffered by the landlord during the remaining term of the lease (Yates v. Reid, 36 Cal.2d 383, 224 P.2d 8 (1950); Anno: 21 ALR3d 534: Damages—Mitigation by Landlord (1968); Lefrak v. Lambert, 93 Misc.2d 632, 403 NYS.2d 397 (1978); Boise Joint Venture v. Moore, 106 Or App 83, 806 P.2d (1990); Austin Hill v. Palisades Plaza, Inc., 948 SW.2d 293, 295 n. 1 (Tex 1997)—note 1 lists cases from 42 states and District of Columbia that have recognized a landlord's duty to mitigate damages in at least some situations). The Uniform Residential Landlord and Tenant Act (URLTA), which has been adopted by several states, provides that if the tenant abandons a dwelling unit, the landlord shall "make reasonable efforts to let it at a fair rental" § 4.203(c). The Model Residential Landlord-Tenant Code, § 2-308(4) contains a similar position. In California, if a tenant vacates premises the landlord has a right to declare abandonment, either by a judicial process or by notice after a period of non-payment of rent (Cal CC, § 1951.3).
Abandonment is a voluntary and wilful act and may thus be distinguished from eviction and forfeiture either of which can arise as a result of an illegal act or omission. cf. laches, repudiation. See also escheat, estoppel, frustration, lapsed land(US), release, res nullius.
Anno: 40 ALR4th 1012: Zoning—Use Abandonment by Part Occupancy.
Anno: 84 ALR4th 183: Abandonment of Leases—Modern Cases.
Anno: 62 ALR5th 219: Private Easement—Loss by Nonuse.
Anno: 18 ALR5th 437: Rent-Free Occupancy.
1 Am.Jur.2d., Abandoned, Lost, and Unclaimed Property, §§ 1-44.
63C Am.Jur.2d., Property, § 72.
25 Am.Jur.2d., Easements and Licenses, § 112-114.
49 Am.Jur.2d., Landlord and Tenant, §§ 249-251, 295, 485.
1 Cor.Jur.Sec., Abandonment, §§ 1-12.
52A Cor.Jur.Sec., Landlord & Tenant, §§ 120-129, 477.
C.J. Berger and J.C. Williams. Land Ownership and Use (4th ed. 1997), pp. 353-367 (abandonment by tenant).
J.E. Cribbet et al. Cases and Materials on Property (7th ed. 1996), pp. 501-507 (abandonment by tenant).
2 Powell on Real Property, § 17.05 "abandonment by tenant".
3 Powell on Real Property, § 34.20 "Easement—Abandonment".
6 Powell on Real Property, § 79C.06[f] "abandonment of nonconforming use".
7 Thompson on Real Property (2d ed. 1994), § 60.08(b)(3) "Abandonment of Easements".
5 Thompson on Real Property (2d ed. 1994), § 40.11 "Abandonment of Leased Premises".
Gale on Easements (16th ed. 1997), paras. 12-19—12-74.
14 Halsbury's Laws of England, Easements (4th ed.), paras. 122-125.

3. The discontinuance of a use of land for a considerable period of time, especially a non-conforming use, so that the use may not legally be resumed. It may be said, "the actual abandonment of a nonconforming use is fatal to its continuance." Borough of Saddle River v. Bobinski, 108 NJ Super 6, 259 A.2d 727, 733 (1969). However, there must be a clear intent to abandon that use, as well as actual cessation, not merely a discontinuance, of the use (Am.Jur.2d., Zoning and Planning, §§ 682-697; Anno: 57 ALR3d 279: Zoning—Resumption of Nonconforming Use). A holder of a vested building permit does not lose that consent merely by a delay in construction; there must be a manifest intention to abandon the right, unless the consent was made subject to completion within a specified (and reasonable) period of time and due notice has been given but not acted on by the permit holder. A building permit holder who has vested rights as a result of commencing construction and carrying out substantial building work, does not abrogate that right because he is obliged to cease construction due to adverse economic circumstances (Pardee Construction Co. v. California Coastal Comm'n, 95 Cal App.3d 471, 157 Cal Rptr 184 (1979)).
In English planning law, the abandonment of a use produces the result that the resumption of that use may constitute development and, therefore, requires planning permission. "[I]t is perfectly feasible in this context to describe a use as having been abandoned when one means that it has not merely been suspended for a short and determinable period, but has ceased with no intention to resume it at any particular time." Hartley v Minister of Housing and Local Government [1970] 1 QB 413, 420, 421 (CA). In this connection factors to be considered are (i) the period of time for which the use is discontinued; (ii) whether there is any intention to re-establish the discontinued use, which may be judged from the state of the property or any elected action on the part of the party seeking to re-establish the use; and (iii) any intervening user. A new use, even though in itself temporary, tends to mitigate in favour of an indication of an intention to abandon a use. "Abandonment depends on the circumstances. If the land has remained unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use has been abandoned then [the planning authority or the Secretary of State] may hold it to have been abandoned" Hartley v Minister of Housing and Local Government, supra at 420. Or, "when a use has ceased with no intention to resume it at any particular time ... then as a matter of fact the use has ceased." supra at 420. Planning permission once granted endures for the benefit of land, and any person who holds an interest in the land at any point in time, unless any condition provides to the contrary. However, a planning permission may be revoked or modified (subject to payment of compensation) (Town and Country Planning Act 1990, 75(1)). It may also be granted for a limited duration, but cannot be abandoned. However, the benefit of a particular planning permission may be lost when, pursuant to a subsequent planning permission, a landowner builds in accordance with that permission and by such action makes the former permission intractable (Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, [1984] 2 All ER 358 (HL)). Nonetheless, any planning consent that is granted must be begun within five years, or such other period as may be prescribed by the authority that granted the consent; and work that is authorised by such a consent generally must be completed within a prescribed time limit. A failure to meet such conditions may be considered a loss or abandonment of that consent and require a reversion to the previously authorised user (1990 Act, ss. 91-96; Sir Desmond Heap, An Outline of Planning Law (11th ed. 1996), pp. 179-186). See also completion notice(Eng).
4. The act of relinquishing damaged property or salvage to an insurer with the aim of claiming a total loss. See also subrogation.

johnbsims3
Admin
# Posted: 22 Jun 2007 14:46
Reply 


Number: AGO 76-177
Date: August 23, 1976
Subject: Abandonment of homestead
076-177 -- August 23, 1976
TAXATION
DETERMINATION OF WHEN HOMESTEAD HAS BEEN ABANDONED

To: Lawrence L. Murray, Clay County Property Appraiser, Green Cove
Springs

Prepared by: Patricia S. Turner, Assistant Attorney General

QUESTION:
Is a taxpayer entitled to homestead exemption pursuant
to s. 196.031(1), F. S., when said taxpayer works in and
rents an apartment in an adjoining county but returns on
weekends to the alleged homestead, which is not rented and
which is the sole property owned by the taxpayer?

SUMMARY:
Rental of an apartment in an adjoining county to pursue
work, in and of itself, does not constitute abandonment of
the homestead when the taxpayer returns on weekends to the
alleged homestead which is not rented and which is the sole
property owned by said taxpayer. Whether or not
abandonment has occurred must be determined from all facts
and circumstances applicable to each particular situation.
Section 6(a), Art. VII, State Const., states in pertinent part:
Every person who has the legal or equitable title to
real estate and maintains thereon the permanent residence
of the owner, or another legally or naturally dependent
upon the owner, shall be exempt from taxation thereon,
except assessments for special benefits, up to the assessed
valuation of five thousand dollars, upon establishment of
right thereto in the manner prescribed by law. . . .
Section 196.031(1), F. S., states in pertinent part:
Every person who 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 home, or the permanent home of another or others
legally or naturally dependent upon said person, shall be
entitled to an exemption from all taxation, except for
assessments for special benefits, up to the assessed
valuation of $5,000 on the said home and contiguous real
property, as defined in s. 6, Art. VII of the State
Constitution. . . .
Additionally, s. 196.051, F. S., provides:
The words "resident," "residence," "permanent
residence," "permanent home" and those of like import,
shall not be construed so as to require continuous physical
residence on the property, but mean only that place which
the person claiming the exemption may rightfully and in
good faith call his home to the exclusion of all other
places where he may, from time to time, temporarily reside.
[Also see Rule 12B-1.202(5)(A), F.A.C.]
Actual residence upon the property claimed as a homestead is
essential to establish entitlement to the homestead exemption. See
Matthews v. Jeacle, 55 So. 865 (Fla. 1911); Hillsborough Inv. Co. v.
Wilcox, 13 So.2d 448 (Fla. 1943); Lanier v. Lanier, 116 So. 867 (Fla.
1928); Murphy v. Farquhar, 22 So. 681 (Fla. 1897); Rule 12B-
1.202(5)(A)1., F.A.C.
However, temporary absence from the alleged homestead, regardless
of the reason for such absence, will not deprive it of that
character, providing an abiding intention to return is always present
and providing there was no design of permanent abandonment. See
Matthews v. Jeacle, supra; City of Jacksonville v. Bailey, 30 So.2d
529 (Fla. 1947); Collins v. Collins, 7 So.2d 443 (Fla. 1942); Lanier
v. Lanier, supra; Poppell v. Padrick, 117 So.2d 435 (2 D.C.A. Fla.,
1959); Rule 12B-1.202(6)(A), (B), and (C), F.A.C. One of my
predecessors discussed what constitutes abandonment of homestead
property under s. 192.14, F. S. (now s. 192.051, F. S.), in AGO 058-
329.
Whether an abiding intention to return to the premises is present
or whether abandonment of the premises as a homestead has actually
occurred are questions of fact to be determined from all applicable
circumstances and from a preponderance of all the evidence. 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. See City
of Jacksonville v. Bailey, supra; Hillsborough Inv. Co. v. Wilcox,
supra; Lanier v. Lanier, supra; Nelson v. Hainlin, 104 So. 589 (Fla.
1925); Gulf Refining Co. v. Ankeny, 135 So. 521 (Fla. 1931).
The continued expressed intention of a landowner 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. See Rule 12B-1.202(6)(C), F.A.C. Although
absence from one's homestead for an extended period 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 property appraiser that there has, in fact, been no abandonment.
Attorney General Opinion 058-329.
Among the factors indicating whether an abiding intention to
return to the premises is present or whether abandonment of the
premises as a homestead has actually occurred are: Removal only of
necessary personal belongings or effects; leaving the house fully
furnished and equipped; residing only temporarily in another
location, City of Jacksonville v. Bailey, supra; and the precinct in
which the applicant is registered to vote, Poppell v. Padrick, supra.
The factors disclosed by your letter, to wit, rental of an
apartment in an adjoining county in pursuit of work and returning to
the alleged homestead (the only property owned by the applicant) on
weekends, are insufficient standing alone to categorically answer
your question in the affirmative or in the negative.
As previously stated, temporary absence from the homestead does
not constitute abandonment but may be considered, in conjunction with
all other available evidence, in determining whether or not
abandonment of the homestead has occurred.
I agree with my predecessor and conclude that 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.

johnbsims3
Admin
# Posted: 22 Jun 2007 14:48
Reply 


Supreme Court of Florida, Special Division A.
CITY OF JACKSONVILLE et al.
v.
BAILEY et ux.
May 20, 1947.
Proceeding by the City of Jacksonville and others against Cecil Bailey and wife to sell land for nonpayment of taxes. From a decree enjoining sale, the City of Jacksonville and others appeal.
Affirmed.
West Headnotes

[1] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k181.5 k. Questions for Jury. Most Cited Cases
(Formerly 202k1811/2)

Whether abandonment of homestead has actually occurred is a question of fact in each case. F.S.A.Const. art. 10, § 7.

[2] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(C) Acquisition and Establishment
202k33 k. Character and Mode of Occupancy. Most Cited Cases

"Constructive possession" of homestead means with no one else occupying it in any status while owner is absent. F.S.A.Const. art. 10, § 7.

[3] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k162 Intent to Return
202k162(1) k. In General. Most Cited Cases

Temporary absence of home owner on January 1, during period that owner rented home for so-called winter season did not violate constitutional requirements and did not result in abandonment of homestead. F.S.A.Const. art. 10, § 7.

[4] KeyCite Notes

268 Municipal Corporations
268XIII Fiscal Matters
268XIII(D) Taxes and Other Revenue, and Application Thereof
268k967 Exemptions from Taxation
268k967(1) k. In General. Most Cited Cases

Continuous physical presence without interruption is not required to constitute a homestead for tax exemption purposes. F.S.A.Const. art. 10, § 7.

[5] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k162 Intent to Return
202k162(1) k. In General. Most Cited Cases

Temporary absence from homestead, regardless of reason therefor, will not deprive it of homestead character, providing an abiding intention to return is always present. F.S.A.Const. art. 10, § 7.

*12 **529 Appeal from Circuit Court, Duval County; Bryan Simpson, Judge.
William M. Madison and Inman P. Crutchfield, both of Jacksonville, for appellants.
C. C. Bailey, of Jacksonville, for appellees.

HOLT, Associate Justice.
C. C. Bailey built his home in the City of Jacksonville in 1937. He lived there continuously with his family and claimed it as his homestead, requesting exemption from imposition of taxes as such, in accordance with Section 7, Article X, of the Constitution of Florida. The exemption was granted until 1943, when the City refused the same.
From December, 1942, until March, 1943, appellee, Bailey, rented this property for the so-called winter season. He removed from the premises only his necessary personal belonging, leaving the house fully furnished and equipped, and resided temporarily in another location. Upon the expiration of the rental period, he and his family moved back into their home, and have resided there continuously since. During his absence from the property he did not claim homestead exemption on any other property as his home.
**530 Upon denial of the exemption, taxes were assessed and levied upon said property and, upon nonpayment thereof, the City proceeded to advertise it for sale. This was permanently enjoined by the lower court. It is from this final decree of the Chancellor that this appeal has been perfected.
The City denied tax exemption to this property for the asserts reason that appellee had abandoned his homestead, and, by reason thereof, was not entitled to the exemption. It was argued, and with some force, the difference between leaving the home and closing it, as for instance for a vacation, and renting it for purely business and commercial reasons. In the first, the homestead chcracter was not lost, because the intention to return was certain, and it was the home of no other; in the latter, the homestead was abandoned not only for the *13 commercial phase mentioned, but the uncertainty of coming back to occupy the property, if ever, coupled with the fact that during the rental period it was not the home of the applicant for tax exemption.
[1] These words, taken from Section 7, Article X of the Constitution, '* * * who resides thereon and in good faith makes the same as his or her permanent home * * *' must be construed when the sole question of whether appellee abandoned his homestead is discussed and decided. It is always a question of fact in each particular case whether abandonment has actually occurred. As far as the record discloses, this is the only time appellee has rented his home.
[2] Did he by his action abandon it? The City insists that unless the owner is in actual or constructive possession (this means with no one else occupying it in any status while the owner is absent) on January 1, he is not entitled to exemption. We must not confuse regulations of municipalities, counties or other taxing authorities (all of which are promulgated for the benefit of the assessing officers) with the provisions of the Constitution. The organic law is entirely silent on this, as no particular date is specified by it. Although we do not decide it here, it is doubtful if the taxing authorities can deny homestead exemption to one otherwise qualified for it upon failure to file written request therefor or to fill out the complicated forms now in use by such authorities.
[3] Here there is no question that appellee 'resided on this property and in good faith made it his permanent home.' He had no other. His temporary absence on January 1, when the City Assessor presumably made up his roll, did not violate any part of the Constitution. It may have transgressed some rule of thumb of the Assessor, but that is of no import.
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 Investment Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448.
[4] [5] It is true that appellee was absent not only on January 1, but prior to and subsequent to that date. However, there is *14 nothing in the record to indicate in the slightest the intention of appellee to do anything but return to his homstead property after temporary absence. Continuous physical presence without interruption is not required to constitute a homestead for tax exemption purposes. Temporary absence, regardless of the reason for such, from the homestead, will not deprive it of that character, provided an abiding intention to return is always present.
We, therefore, hold that there was no abandonment of the homestead here, and the decree of the Chancellor should be affirmed.
Affirmed.

THOMAS, C. J., and TERRELL and CHAPMAN, JJ., concur.
Fla. 1947
City of Jacksonville v. Bailey
159 Fla. 11, 30 So.2d 529

johnbsims3
Admin
# Posted: 22 Jun 2007 14:50
Reply 


1 A fraudulent asset conversion, for which a creditor may obtain relief under Fla.Stat. s
222.30, occurs when a debtor's conversion of an asset results in its proceeds becoming exempt. In
the instant case, any assets that the Debtor allegedly converted in connection with Maria Cline's
acquisition of the Bell Lane Property did not result in proceeds of those assets becoming exempt
because the Debtor is not claiming an exemption in the Bell Lane Property.
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
In re R. Scott LAING, Debtor.
No. 99-32837-BKC-SHF
(Cite as: 242 B.R. 538)
ORDER DENYING CREDITORS' OBJECTION TO EXEMPTION
THIS MATTER came on for hearing on November 8, 1999, on the Objection to Exemption
filed by Creditors Roy W. Jordan, Jr. and Karen K. Jordan. The Creditors object to the Debtor's
claimed homestead exemption in property located at 1715 Mango Circle in West Palm Beach,
Florida (the "Mango Property"). The Objection alleges that the Debtor owed the Creditors a
preexisting debt at the time he acquired the Mango Property, and makes an obscure reference to a
fraudulent asset conversion in connection with that acquisition. The Creditors failed, however, to
present any evidence supporting this allegation. Instead, the Creditors rely on the allegation that
the Debtor subsequently abandoned the Mango Property in 1995, when he purchased property at
1963 Bell Lane, West Palm Beach, Florida (the "Bell Lane Property"). The Creditors contend
that the Debtor purchased the Bell Lane Property in his girlfriend's name for the purpose of
defrauding creditors. The Objection further alleges that the Debtor resided at the Bell Lane
Property with his girlfriend, Maria Cline, from 1995 to late 1998 or early 1999, while renting the
Mango Property to tenants. For the reasons set forth herein, the Creditors' Objection is overruled.
Under Fed.R.Bankr.P. 4003(c), the party objecting to a claimed exemption bears the
burden of proving lack of entitlement. In Florida, this burden is particularly onerous when the
party is objecting to a homestead exemption. See In re Pettit, 231 B.R. 101, 102 (Bankr. M.D.
Fla.1999) (holding the homestead exemption carries a presumption of validity and should be
liberally construed in favor of finding entitlement). The Creditors in the instant case rely on two
alternative theories to prove the Debtor's lack of entitlement to the claimed exemption: fraudulent
acquisition of the Bell Lane Property and abandonment of the Mango Property. The first of these
theories raises no issue with regard to the Debtor's entitlement to a homestead exemption in the
Mango Property.1 The evidence presented at hearing with regard to the allegedly fraudulent
acquisition of the Bell Lane Property might more appropriately have been offered in support of a
claim under 11 U.S.C. s 548 (1998). Within the context of the instant Objection, this evidence, at
best, might raise an issue with regard to the Debtor's intent to abandon the Mango Property.
Under Florida law, proof of abandonment of homestead requires a strong showing of the
debtor's intent not to return to the property. See In re Herr, 197 B.R. 939, 941 (Bankr. S.D.
Fla.1996). In Herr, a creditor objected to the debtor's claimed homestead exemption in property
on which the debtor had not resided for approximately three years. See id. at 940. The property
was vacant, covered with weeds, and posted with a "For Sale" sign, the debtor's house having
been destroyed three years previously by Hurricane Andrew. See id. The debtor testified that he
had intended to rebuild the house but, being financially unable to do so, had decided to sell the
property and to buy a less expensive homestead with the proceeds. See id. at 941. The court
noted that under Florida law, abandonment is determined not by a debtor's absence from property
but by the debtor's intent. See id. (citing In re Mackey, 158 B.R. 509 (Bankr. M.D. Fla.1993));
see also In re Betancourt, 154 B.R. 90, 92-93 (Bankr.S.D.Fla.1993)(holding debtor who rented out
homestead with intent of visiting relatives in foreign state did not abandon homestead, even though
she did not carry out the visit due to Hurricane Andrew and had to lease other property in the same
area as her homestead); M.O. Logue Sod Serv., Inc. v. Logue, 422 So.2d 71, 72 (Fla. 2d DCA
1982) ("[C]ontinuous uninterrupted physical presence is not required to create homestead.").
Noting that the provisions of homestead law "should be carried out in liberal beneficent spirit," the
court reasoned that the party attempting to prove abandonment must make a strong showing of the
debtor's intent not to return to the homestead. Herr, 197 B.R. at 941. The court explained the type
of showing required: "If a debtor pronounces his intent to abandon his homestead and moves away
intending never to return, that would do it. If a debtor declares other property as homestead, that
creates an estoppel against the debtor." Id. Since the creditor's showing was not sufficient to
prove intent to abandon, the court overruled the objection. See id.
As in Herr, the Creditors in the instant case have failed to prove that the Debtor did not
intend to return to the Mango Property. Indeed, the only record evidence on this issue is the
testimony of the Creditors' chief witness, Valerie Dorsett, who stated on cross examination that the
Debtor moved back into his home at the Mango Property in February 1999, four months before the
petition date. Because the Creditors have failed to meet the burden of proof established by
Fed.R.Bankr.P. 4003(c), the Objection to Exemption is overruled. The instant decision is not
inconsistent with the Court's previous decision in In re Bratty, 202 B.R. 1008, 1010
(Bankr.S.D.Fla.1996) (holding debtor abandoned homestead where he acquired condominium as a
vacation home and used it primarily for that purpose over twelve-year period, leasing it out to
tenants much of that time).
For the foregoing reasons, it is hereby
ORDERED that the Creditors' Objection to Exemption is overruled.
ORDERED in the Southern District of Florida on this 8th day of December, 1999.
STEVEN H. FRIEDMAN
United States Bankruptcy Judge

johnbsims3
Admin
# Posted: 22 Jun 2007 14:50
Reply 


95 Fla. 522, 116 So. 867
Supreme Court of Florida, Division A.
LANIER et al.
v.
LANIER.
March 22, 1928.
Rehearing Denied May 11, 1928.
Suit by Clyde Lanier and others against Lula May Lanier. Decree for respondent, and complainants appeal.
Affirmed.
West Headnotes

KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(C) Acquisition and Establishment
202k31 k. Intent in Acquisition and Occupancy. Most Cited Cases

Status of property as homestead depends on intention to reside thereon permanently, coupled with fact of residence.

KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k154 k. Loss or Relinquishment of Right in General. Most Cited Cases

Whether there has been abandonment of homestead should be determined by considering all pertinent facts and circumstances of each case.

KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k161 k. In General. Most Cited Cases

Permanent abandonment of homestead deprives property of homestead character.

KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k162 Intent to Return
202k162(1) k. In General. Most Cited Cases

Temporary absence from homestead will not deprive it of homestead character, unless there is design of permanent abandonment.

Syllabus by the Court
Temporary absence from homestead will not deprive it of homestead character unless there is design of permanent abandonment; permanent abandonment of homestead deprives property of homestead character. A temporary absence from the homestead 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, but a permanent abandonment of the homestead as a bona fide homestead and place of permanent abode deprives the property of its homestead character.
Whether there has been abandonment of homestead should be determined by considering all pertinent facts and circumstances of each case. Whether there has been an abandonment of a homestead so as to deprive it of its status as such under the Constitution should be determined by a consideration of all the pertinent facts and circumstances of each case.
Status of property as homestead depends on intention to reside thereon permanently, coupled with fact of residence. The status of property as a homestead depends upon an actual intention to reside thereon as a permanent place of residence, coupled with the fact of residence.

**868 Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.
Kelly, Sutton & Shaw, of Tampa, for appellants.
Herbert S. Phillips, of Tampa, and Arthur L. Auvil, of Dade City, for appellee.

PER CURIAM.
This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and decreed by the court that the said *523 decree of the circuit court be, and the same is hereby, affirmed.
On Petition for Rehearing.


STRUM, J.
This is a suit in equity, brought by the children of a deceased father against their stepmother to cancel and set aside a deed which conveyed directly from the father to his wife, the stepmother of complainants, certain lands which the complainants allege were, when so conveyed, a part of the grantor father's homestead.
By petition for rehearing it is suggested by the complainants, who are appellants here, that, in affirming the decree of the chancellor dismissing the bill of complaint, this court overlooked and inadvertently overruled Norton v. Baya, 88 Fla. 1, 102 So. 361, and contrary to that decision and also the decision in Jackson v. Jackson, 90 Fla. 563, 107 So. 255, in effect held to be good and valid a conveyance of a part of the homestead by the husband directly to the wife, even though, at the time of the conveyance in question, the grantor was the head of a family residing in this state, the land described in the deed was then the homestead of the grantor, and there were then living children of said grantor, namely, the complainants.
The decision herein, affirming the decree dismissing the bill, is consonant with the doctrine announced in Norton v. Baya and Jackson v. Jackson, supra. The decisions last named were not overlooked, nor was the doctrine therein announced overruled or modified by the decision in this case.
The problem presented by the evidence in this case is not without its difficulties. The evidence leaves no doubt that the land in question was the homestead of the grantor father, J. S. Lanier, on June 6, 1924, and for many years prior thereto. The chancellor apparently found, however, that there had been an abandonment of the homestead prior to July 29, 1924, the date of execution of the conveyance here in question. There is competent evidence in the record to sustain that conclusion. Certainly there is no such lack of it as to justify this court, under the longestablished rule in this jurisdiction, in reversing the chancellor's conclusion and finding.
[1][2][3] We agree with the proposition of law advanced by appellants that the homestead intended by our Constitution to be exempt is the place of actual residence of the party and his family, and 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. Matthews v. Jeacle, 61 Fla. 686, 55 So. 865; Murphy v. Farquhar, 39 Fla. 350, 22 So. 681. It is equally as well settled, however, by the cases just cited, that a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character. A homestead is abandoned by taking up a permanent abode at a distant place. Whether there has been an abandonment of a homestead so as to deprive it of its status as such under the Constitution should be determined by a consideration of all the pertinent facts and circumstances of each case. Nelson v. Hainlin, 89 Fla. 356, 104 So. 589. The character of property as a homestead depends upon an actual intention to reside thereon as a permanent place of residence, coupled with the fact of residence.
The chancellor's view that the land in question had been abandoned as a homestead is in harmony with the rule announced in Murphy v. Farquhar and Matthews v. Jeacle, supra, and also in Porter v. Harrison, 124 Ala. 296, 27 So. 302; Baker v. Jamison, 73 Iowa, 698, 36 N. W. 647. The following cases also bear upon the question: McGregor v. Kellum, 50 Fla. 581, 39 So. 697; Land v. Boykin, 122 Ala. 627, 25 So. 172; Stanton v. Hitchcock, 64 Mich. 316, 31 N. W. 395, 8 Am. St. Rep. 821; Baker v. Jamison, 73 Iowa, 698, 36 N. W. 647; Kaes v. Gross, 92 Mo. 647, 3 S. W. 840, 1 Am. St. Rep. 767; Conway v. Nichols, 106 Iowa, 358, 76 N. W. 681, 68 Am. St. Rep. 311.
Petition for rehearing denied.

ELLIS, C. J., and BROWN, J., concur.

**869 WHITFIELD, P. J., and TERRELL and BUFORD, JJ., concur in the opinion and judgment.
Fla. 1928
Lanier v. Lanier
95 Fla. 522, 116 So. 867

johnbsims3
Admin
# Posted: 22 Jun 2007 14:50
Reply 


422 So.2d 71
District Court of Appeal of Florida,
Second District.
M.O. LOGUE SOD SERVICE, INC., Appellant,
v.
Alice Susan LOGUE, Appellee.
No. 82-753.
Nov. 17, 1982.
Appeal was taken from a judgment of the Circuit Court, Manatee County, Harry C. Parham, J., in favor of wife in suit to quiet her title to property awarded her as lump-sum alimony "and/or" a special equity. The District Court of Appeal, Ott, C.J., held that evidence supported finding that headship of family continued in husband from date of his departure until entry of judgment dissolving marriage, and failed to support finding of abandonment or loss of constitutional protection of homestead for benefit of wife and minor child.
Affirmed.
West Headnotes

[1] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(A) Nature, Creation, and Duration of Estate or Right in General
202k5 k. Construction of Homestead Laws in General. Most Cited Cases

Homestead law is to be liberally construed for benefit of those whom it was designed to protect.

[2] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(A) Nature, Creation, and Duration of Estate or Right in General
202k15 k. Duration and Termination. Most Cited Cases

When homestead status has been acquired, it continues until homestead is abandoned, which is normally evidenced by establishment of domicile at some other place, or alienated in manner provided by law.

[3] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(C) Acquisition and Establishment
202k37 k. Extent of Occupancy. Most Cited Cases
(Formerly 202k32)

Continuous uninterrupted physical presence is not required to create homestead.

[4] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(B) Persons Entitled
202k18 k. Head of Family and Members Thereof. Most Cited Cases

202 Homestead KeyCite Notes
202IV Abandonment, Waiver, or Forfeiture
202k160 Removal from Homestead
202k161 k. In General. Most Cited Cases

Where on October 18, husband left parties' home saying he was going to nearby convenience store and would be right back, but did not return, wife filed for dissolution of marriage on November 3 for primary purpose of securing title to home for support and benefit of her self and minor child, creditor obtained full final judgment against husband on December 24, and creditor was owned by father of former husband and husband either worked or was very closely associated with father's business until his abrupt and apparently total unexpected disappearance, evidence supported finding that headship of family continued in husband from date of his departure until entry of judgment dissolving marriage, and failed to support finding of abandonment or loss of constitutional protection of homestead for benefit of wife and minor child.

*71 James M. Nixon, II and Douglas A. Wallace, Bradenton, for appellant.
Walter R. Talley and William H. Meeks, Jr., Bradenton, for appellee.

OTT, Chief Judge.
Within a period of slightly less than six months (1) appellee's former husband suddenly disappeared from the family home, titled in his name alone, leaving all of his possessions with appellee and their minor child, (2) appellee filed for dissolution of marriage, (3) appellant obtained a judgment against the husband, and (4) the court in the dissolution proceeding awarded the parties' home to appellee as lump sum rehabilitative alimony "and/or" a special equity. In an action against appellant to quiet her title to this property, appellee established (1) that the husband was family head prior to his departure, and (2) that she and the *72 minor child continued to reside on the property until it was awarded to her. In support of its claim that the homestead was legally abandoned by the husband, appellant argues here that husband's headship terminated immediately upon his disappearance from his home and family. Appellant relied almost exclusively on the fact that, after his departure, no support was furnished the family by the husband other than that afforded by his personal possessions and the shelter of the home. The wife was forced to subsist on welfare and food stamps. She borrowed money from her mother to meet the mortgage payments on the home until she could secure title through the dissolution proceedings. The trial judge concluded that the evidence did not establish abandonment of the homestead by the husband, that the husband continued to be the family head following his departure, and that homestead in him continued until the property was awarded to appellee.
Neither of the parties has found a decision involving these precise facts and our own research has disclosed none.
[1] [2] [3] We start with the following premises: (1) the homestead law is to be liberally construed for the benefit of those whom it was designed to protect, LaGasse v. Aetna Insurance Co., 213 So.2d 454, 459 (Fla.2d DCA 1968); (2) when homestead status has been acquired, it continues until the homestead is abandoned (normally evidenced by the establishment of a domicile at some other place) or alienated in the manner provided by law, Marsh v. Hartley, 109 So.2d 34, 38 (Fla.2d DCA 1959); and (3) continuous uninterrupted physical presence is not required to create a homestead. Poppel v. Padrick, 117 So.2d 435, 436-437 (Fla.2d DCA 1959).
[4] We are impressed with the circumstances attending the husband's departure and the relatively short period of time which elapsed between his departure and the entry of judgment in the dissolution action. On October 18, 1980, the husband left the parties' home saying he was going to the nearby 7-Eleven and would be right back. He did not take his clothing, automobile, or other possessions or close his bank account. Appellee filed for dissolution of marriage on November 3, 1980, for the primary purpose, it appears, of securing the title to the home for the support and benefit of herself and the minor child. Appellant obtained a default final judgment against the husband on December 24, 1980. Appellant is owned by the father of appellee's former husband, and the husband either worked for or certainly was very closely associated with his father's business until his abrupt and apparently totally unexpected disappearance. The final judgment in dissolution was entered April 16, 1981.
Under the circumstances of this case, we are unable to fault the finding and conclusion of the trial judge that headship of the family continued in the husband from the date of his departure until the entry of judgment dissolving the marriage. He, as the trier of fact, obviously concluded that appellant's evidence fell short of establishing abandonment or loss of the constitutional protection of the homestead for the benefit of the wife and minor child.
The judgment is AFFIRMED.

HOBSON and GRIMES, JJ., concur.


Fla.App. 2 Dist.,1982.
M.O. Logue Sod Service, Inc. v. Logue
422 So.2d 71

johnbsims3
Admin
# Posted: 22 Jun 2007 14:51 - Edited by: johnbsims3
Reply 


Abandonment--In general

Under Florida law, resident is entitled to homestead exemption unless it is shown that both the owner and owner's family abandoned the property. In re Kalynych, Bkrtcy.M.D.Fla.2002, 284 B.R. 149. Homestead 154

Once property has acquired status of homestead, such status continues until abandonment has occurred. Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959). Homestead 15

Under Florida law, investor's cause of action against broker for fraud in conjunction with offering of mortgage backed bonds by church accrued when broker informed investor that no more payments would be made, rather than when alleged fraudulent statements were made, where investor received regular interest payments up to that point. Bearse v. Main Street Investments, M.D.Fla.2002, 220 F.Supp.2d 1338. Limitation Of Actions 100(12)

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 person claiming the homestead exemption 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. 1958 Op.Atty.Gen. 058-329, 058-229 (Revised), Dec. 10, 1958.

Mere absence for a long period of time is not of itself sufficient to establish abandonment of homestead and deprive it of its character and tax exemption, where claimant never acquires another homestead, and there is no showing that he did not intend to return. 1958 Op.Atty.Gen. 058-229, July 22, 1958.

Temporary absence, abandonment

Rule, that temporary absence will not deprive homestead claimant of his right unless it appears that there was a design of permanent abandonment, applies to homestead tax exemption privilege. Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959). Taxation 2317

In suit for decree determining plaintiffs to be entitled to homestead exemption for tax purposes, evidence sustained finding that there had been no abandonment of homestead by plaintiffs when they went to live in plaintiff-husband's widowed mother's home for several months of year. Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959). Taxation 2394

Temporary absence of a person committed to a mental hospital does not of itself constitute an abandonment of homestead rights previously acquired by him, but rental of the homestead by his legal guardian would terminate the exemption. Op.Atty.Gen., 071-398, Dec. 28, 1971.

Mere absence from one's homestead for health, pleasure or business reasons 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. 1958 Op.Atty.Gen. 058-329, 058-229 (Revised), Dec. 10, 1958.

Temporary absence will not deprive homestead of its character and tax exemption. 1958 Op.Atty.Gen. 058-229, July 22, 1958.

johnbsims3
Admin
# Posted: 4 Jul 2007 05:11
Reply 


FLORIDA ADMINISTRATIVE CODE
12D-7.013 Homestead Exemptions - Abandonment.
(1) Temporary absence from the homestead for health, pleasure or business reasons would not deprive the property of its
homestead character. (Lanier v. Lanier, 116 So. 867 (Fla. 1928)).
(2) When a resident and citizen of Florida, now entitled to tax exemption under Section 6, Article VII of the State Constitution
upon certain real property owned and occupied by him, obtains an appointment of employment in Federal Government services that
requires him to reside in Washington, District of Columbia, he does not lose his right to homestead exemption if his absence is
temporary. He may not, however, acquire another homestead at the place of his employment, nor may he rent the property during
his absence as this would be considered abandonment under Section 196.061, Florida Statutes.
(3) Temporary absence, regardless of the reason for such, will not deprive the property of its homestead 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. (City of Jacksonville v. Bailey, 39 So.2d 529 (Fla.
1947)).
(4) Commitment to an institution as an incompetent will not of itself constitute an abandonment of homestead rights.
(5) Property used as a residence and also used by the owner as a place of business does not lose its homestead character.
(a) The head of the family occupying the second story of a building as his home and the first story of the building as his
business house is entitled to claim homestead exemption on the building, except that portion not used by him either as his business
house or as his home. Any portion of the property not used as his business house may not be exempted as a homestead. In other
words, if any portion of the first floor or second floor of the building is rented to another party and used by the other party for other
purposes, it would not be within the exemption provided for under Article VII of the State Constitution. (Smith v. Guckenheimer,
27 So. 900 (Fla. 1900)).
(b) The two uses should be separated with that used as a residence and business house being granted the exemption and the
remainder being taxed.

Specific Authority 195.027(1), 213.06(1) FS. Law Implemented 196.001, 196.031, 196.041, 196.061, 196.071, 213.05 FS. History–New 10-12-76,
Formerly 12D-7.13.

johnbsims3
Admin
# Posted: 10 Aug 2007 13:15
Reply 


ABANDONMENT OF HOMESTEAD

Florida Stat. §196.061 Rental of homestead to constitute abandonment.--The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years. The provisions of this section shall not apply to a member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States.
History.--s. 1, ch. 59-270; s. 1, ch. 67-459; ss. 1, 2, ch. 69-55; s. 5, ch. 95-404; s. 8, ch. 96-397.
Note.--Former s. 192.141.

A recorded document, executed by those claiming a homestead exemption, giving up said homestead. Not applicable to all states and procedure must be according to local statutes.

Section 196.061, Florida Statutes," Rental of homestead to constitute abandonment", states in material part:

The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years.


Loss of Homestead

The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute abandonment of said dwelling as a homestead. Abandonment of such homestead after January 1st of any year shall not affect the homestead exemption for tax purposes for that particular year.
Section 196.061, Florida Statutes,"Rental of homestead to constitute abandonment", states in material part:
The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years.
After the property has been designated as a homestead, it continues to be impressed wit the homestead character, until the homestead character is lost by dissolution of the family relationship, a sale of the homestead, or its being abandoned as a homestead. Therefore, once it appears that property has been the homestead of a man and wife, any attempt to encumber of sell the property without conforming to the rules mentioned above would be invalid unless it can be proven that the property is no longer the homestead, due to some abandonment or termination of homestead rights. Abandonment of homestead is a question of fact to be determined on a case-by-case basis by a court or by a jury, and turns mainly on a question of intent of the parties to a transaction. Thus, if there is a temporary removal from the presumes, i.e. where a person is temporarily out of the country, moves temporarily for health purposes, or other such instances, there is no abandonment of the homestead, if it can be proved that the intent of the homestead claimants was to return to the property as their permanent homestead.
B. In a dispute between a homestead claimant and one who is attempting to put a lien on homestead property, the issue is frequently whether or not the homestead claimant has disclaimed his homestead rights, or would be estopped to raise this homestead claim. One of the basic principles is that a homestead claimant may not, merely by the fact of signing a written disclaimer of property as his homestead, preclude himself from later claiming the property as his homestead, even if this written disclaimer includes someone else to lend money against the homestead. Therefore, in such a case it would behoove the lender to make an examination of the occupancy of the property, and if the person is in fact residing in the property which is being mortgaged, a disclaimer signed by the person attempting to borrow money against homestead, would be invalid, if the claimant later contests that disclaimer and denies that the property was ever abandoned as his homestead.

Operation of Florida bankruptcy laws

In practice, occupation of a home requires a physical presence of the debtor on a regular basis. Problems arise because of multiple tracts, absence from the state, and divorce proceedings which fracture the application of domicile rules. Clarifying both domicile and residency through a written designation prevents surprises. If the validity of a homestead exemption is in question, written agreements and designation provide many debtor with a solution. Note: Absence from the country because of military service can not form the sole basis of abandonment.


To establish a property has been abandoned and therefore no longer shielded with the homestead exemption, the party questioning the homestead status must show by clear and convincing evidence the owner of the property 1) moved from the premises and 2) formed the intent never to return, either at the time of moving or sometime thereafter. This is primarily a question of the property owner's intent. This intent is determined not only from the property owner's declarations, but also from his acts and the circumstances surrounding his absence from the property. The fact that an owner is no longer using property as a principal residence may be relevant on the issue of abandonment, but it is not dispositive. An owner's temporary absence from the property or an owner's occupancy of another premises does not necessarily demonstrate an intent to abandon the homestead under the law. The law does not impose a requirement of continuous occupation to preserve a homestead. Similarly, the leasing of part or all of a homestead property does not as a matter of law establish an abandonment. Rather, a court must consider all the pertinent facts or circumstances in determining whether the owner formed the intent never to return. In evaluating an owner's intent, the Court must consider such factors as the length of the owner's absence, the reasons for the absence, purchase of a new home, etc.

A homestead interest is presumed to continue indefinitely absent proof of clear discontinued use and the intent to permanently abandon the homestead interest. Homestead protection is usually lost where the owner "abandons" the homestead by ceasing to use the property as a primary residence. Temporary renting of the homestead does not change homestead character, unless the owner acquires another homestead property. To prove abandonment, one must show that the claimant discontinued use and intended to permanently abandon the homestead. When homestead rights have been established, such rights are presumed to continue unless a challenger satisfies the burden of proving abandonment through competent evidence.


Under California law, a homestead can be abandoned only if the debtor has recorded a declaration of abandonment, records a new declaration of homestead on a different property, executes a conveyance of the homestead, or abandons the homestead by implication by establishing another residence as his principal dwelling

A homestead may be abandoned by implication under California law in two circumstances. First, implied abandonment occurs when the debtor has purchased a new residence because the automatic homestead exemption applies to the new residence. This is not the case here, as Kelley is a renter in Napa, not a property owner. Second, a homestead may be abandoned by implication where the debtor has shown no intention of using the property as a personal residence

The court has intentionally avoided applying In re Anderson, 824 F.2d 754 (9th Cir.1987), to this analysis. Fifteen years after its issuance, the rule in that case remains unclear. On the one hand, the court in Anderson specifically noted that continued residency is not a requirement for a valid declared homestead exemption, 824 F.2d at 757, and is often cited for that proposition. On the other hand, it seems to say later on the same page and following pages that 1983 changes in California law altered this rule. The court notes that subsequent state court decisions such as Webb v. Trippet have avoided any mention of Anderson. (1)The court in Webb v. Trippet specifically found error in the ruling of the trial court that continued residency was required. This case was handed down four years after Anderson. Anderson involved debtors who attempted to exempt a prior residence with a recorded declaration of homestead even though they had subsequently purchased and currently resided in another home. Instead of ruling that homestead law had changed, a better way to reach the same result would be to find, consistent with Webb v. Trippet, that purchase of the second residence constituted abandonment by implication of the declared homestead. Treatises on the subject treat Anderson as inconsistent with California law to the extent it holds that continued residency is required for a valid declared homestead exemption.

Cases from other jurisdictions either state that abandonment of a homestead is a question of fact [see, i.e.: Hildebrand v. Harrison, 361 P.2d 498 (Okla.1961); City of Jacksonville v. Bailey, 159 Fla. 11, 30 So.2d 529 (1947)], or treat it as a question of fact [see, i.e.: McIntosh v. Borchers, 196 Neb. 109, 241 N.W.2d 534 (1976); Monroe v. Monroe, 465 S.W.2d 347 (Ark.1971)]. The Oil Company emphasizes that the platting was done pursuant to a plan to sell. It concludes that the forming of a planto sell part of a homestead and the efforts to effect such a sale constitute an abandonment of that part of the homestead. That is not the law in this State. If the grantee is to take title free from a lien of judgment against his grantor (Nelson v. Griggs County, supra), an abandonment cannot automatically be found to take place in the period of time which must exist between the point at which the grantor decides to sell and the point at which the sale is made. An attempt to sell property is not in itself evidence of abandonment of the homestead.
In Sullivan v. Barnett, 471 S.W.2d 39, 43(Tex.1971), when asked to find an abandonment in an attempted sale, the Texas Supreme Court said:
"An intention or attempt to sell a homestead does not amount to an abandonment as long as the homestead claimants retain possession and have no intent to abandon unless the sale materializes. [Cites omitted.]"
See also, Bellport v. Harder, 196 Kan. 294, 411 P.2d 725, 731 (1966), where the Kansas Supreme Court said:
"... the property did not lose its homestead character a few minutes before the deed was executed by the [sellers] to their daughter, as contended by the appellant, on the ground that they had formed an intention to abandon their home."


CONFUSION REGARDING HOMESTEAD AND TAXATION
A distinction should be made between the law relating to homestead and the enforcement of liens and the transferability of homestead property as contrasted with the character of the property with relation to the payment of AD VALOREM taxes. That is to say, if a t the beginning of a calendar year, an affidavit is filed by homestead claimant claiming certain property as his homestead, the tax assessor does not make inquiries as to whether or not the person requesting the exemption is in fact in possession of the property for which he claims an exemption. Therefore, if a homeowner owns a residence on the East side of town and a residence on the West side of town, but files a homestead exemption on the property on the West side of town which may have a higher value, and therefore, save some taxes. However, when the question is which property is mortgagable, the actual occupancy of the property is determinative, and if the residence is that property on the East side of town, it could not be mortgaged except in the instances outlined in SALES AND ENCUMBRANCES, regardless of the disclaimer of the homestead filed with the tax assessor.

CONCLUSIONS

The law regarding homestead in Texas involves highly technical principles. Care should be taken to have a lawyer review your facts if you are ever in doubt regarding the principles outlined herein. Because of the safeguards built into the law, transactions involving homestead property should be carefully structured.
It is important to note that because of the dangers involved with homestead, title companies and mortgage lenders are very particular in the treatment of homestead property. Even if legal principles are on the side of a title company or a mortgage lender, they may decline to take action based on internal policy principles and risk of loss, rather than relying entirely on the legal principles outlined herein. Therefore, if homestead property is to be conveyed or mortgaged, a review of the facts with the lawyer for the title company or for the mortgage lender should be made before the transaction is attempted, in order to determine that the transactions one into which the title company or mortgage lender desires to enter.

A change in the above law now allows for homeowners to take out a home equity loan on their homesteaded property.
"Continuous uninterrupted physical presence is not required to create a homestead." Burdick v. Burdick, 399 So. 2d 410 (Fla. 3d DCA 1981). "A homestead is abandoned by taking up a permanent abode at a distant place. Whether there has been an abandonment
of a homestead . . . should be determined by a consideration of all the pertinent facts and circumstances of each case." Miller v. West Palm Beach Atlantic Nat'l Bank, 142 Fla. 22, 194 So. 230 (1940). In Dean v. Heimbach, 409 So. 2d 157 (Fla. 1982), the court found that involuntary absence from homestead, caused by legal problems of the owner, are insufficient to constitute abandonment of the homestead. The status of homestead is
preserved "when the family unit is temporarily removed from the homestead but the homestead remains the permanent abode to which the family unit intends to return." Dean, 409 So. 2d at 158. Novoa's testimony created an issue of fact as to his intention to
return, and not abandon the homestead. Moreover, in granting summary judgment in this case, the trial court impermissibly weighed the credibility of Mrs. Novoa and disregarded her testimony that they intended to title the property as tenants by the entireties. This was improper, as credibility determinations must be made by a jury at trial.
Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000); Jebailey.

johnbsims3
Admin
# Posted: 5 Jul 2012 07:51
Reply 


Florida courts have consistently held that the protections afforded by "the homestead exemption in article X, section 4 must be liberally construed." Butterworth v. Caggiano, 605 So. 2d 56, 58 (Fla. 1992). Florida courts' "homestead exemption jurisprudence has long been guided by a policy favoring the liberal construction of the exemption: 'Organic and statutory provisions relating to homestead exemptions should be liberally construed in the interest of the family home.'" Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018, 1021 (Fla. 2001)(quoting Milton v. Milton, 58 So. 2d 718, 719 (Fla. 1912)). "The homestead exemption is liberally construed for the benefit of those whom it was designed to protect." Law v. Law, 738 So. 2d 522, 524 (Fla. 4th DCA 1999).

To establish a property has been abandoned and therefore no longer shielded with the homestead exemption, the party questioning the homestead status must show by clear and convincing evidence the owner of the property 1) moved from the premises and 2) formed the intent never to return, either at the time of moving or sometime thereafter. This is primarily a question of the property owner's intent. This intent is determined not only from the property owner's declarations, but also from his acts and the circumstances surrounding his absence from the property. The fact that an owner is no longer using property as a principal residence may be relevant on the issue of abandonment, but it is not dispositive. An owner's temporary absence from the property or an owner's occupancy of another premises does not necessarily demonstrate an intent to abandon the homestead under the law. The law does not impose a requirement of continuous occupation to preserve a homestead. Similarly, the leasing of part or all of a homestead property does not as a matter of law establish an abandonment. Rather, a court must consider all the pertinent facts or circumstances in determining whether the owner formed the intent never to return. In evaluating an owner's intent, the Court must consider such factors as the length of the owner's absence, the reasons for the absence, purchase of a new home, etc.

A homestead interest is presumed to continue indefinitely absent proof of clear discontinued use and the intent to permanently abandon the homestead interest. Homestead protection is usually lost where the owner "abandons" the homestead by ceasing to use the property as a primary residence. Temporary renting of the homestead does not change homestead character, unless the owner acquires another homestead property. To prove abandonment, one must show that the claimant discontinued use and intended to permanently abandon the homestead. When homestead rights have been established, such rights are presumed to continue unless a challenger satisfies the burden of proving abandonment through competent evidence.

johnbsims3
Admin
# Posted: 5 Jul 2012 07:55
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TO: All Florida Homestead Services Offices and Agents in Florida
FROM: John B. Sims III
SUBJECT: Abandonment of Homestead
Date: May 5, 2005

ABANDONMENT OF HOMESTEAD

Florida Stat. §196.061 Rental of homestead to constitute abandonment.--The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years. The provisions of this section shall not apply to a member of the Armed Forces of the United States whose service in such forces is the result of a mandatory obligation imposed by the federal Selective Service Act or who volunteers for service as a member of the Armed Forces of the United States.
History.--s. 1, ch. 59-270; s. 1, ch. 67-459; ss. 1, 2, ch. 69-55; s. 5, ch. 95-404; s. 8, ch. 96-397.
Note.--Former s. 192.141.

A recorded document, executed by those claiming a homestead exemption, giving up said homestead. Not applicable to all states and procedure must be according to local statutes.

Section 196.061, Florida Statutes," Rental of homestead to constitute abandonment", states in material part:

The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years.


Loss of Homestead

The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute abandonment of said dwelling as a homestead. Abandonment of such homestead after January 1st of any year shall not affect the homestead exemption for tax purposes for that particular year.
Section 196.061, Florida Statutes, "Rental of homestead to constitute abandonment", states in material part:
The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years.
After the property has been designated as a homestead, it continues to be impressed with the homestead character, until the homestead character is lost by dissolution of the family relationship, a sale of the homestead, or its being abandoned as a homestead. Therefore, once it appears that property has been the homestead of a man and wife, any attempt to encumber of sell the property without conforming to the rules mentioned above would be invalid unless it can be proven that the property is no longer the homestead, due to some abandonment or termination of homestead rights. Abandonment of homestead is a question of fact to be determined on a case-by-case basis by a court or by a jury, and turns mainly on a question of intent of the parties to a transaction. Thus, if there is a temporary removal from the presumes, i.e. where a person is temporarily out of the country, moves temporarily for health purposes, or other such instances, there is no abandonment of the homestead, if it can be proved that the intent of the homestead claimants was to return to the property as their permanent homestead.
B. In a dispute between a homestead claimant and one who is attempting to put a lien on homestead property, the issue is frequently whether or not the homestead claimant has disclaimed his homestead rights, or would be estopped to raise this homestead claim. One of the basic principles is that a homestead claimant may not, merely by the fact of signing a written disclaimer of property as his homestead, preclude himself from later claiming the property as his homestead, even if this written disclaimer includes someone else to lend money against the homestead. Therefore, in such a case it would behoove the lender to make an examination of the occupancy of the property, and if the person is in fact residing in the property which is being mortgaged, a disclaimer signed by the person attempting to borrow money against homestead, would be invalid, if the claimant later contests that disclaimer and denies that the property was ever abandoned as his homestead.

Operation of Florida bankruptcy laws

In practice, occupation of a home requires a physical presence of the debtor on a regular basis. Problems arise because of multiple tracts, absence from the state, and divorce proceedings which fracture the application of domicile rules. Clarifying both domicile and residency through a written designation prevents surprises. If the validity of a homestead exemption is in question, written agreements and designation provide many debtor with a solution. Note: Absence from the country because of military service can not form the sole basis of abandonment.


To establish a property has been abandoned and therefore no longer shielded with the homestead exemption, the party questioning the homestead status must show by clear and convincing evidence the owner of the property 1) moved from the premises and 2) formed the intent never to return, either at the time of moving or sometime thereafter. This is primarily a question of the property owner's intent. This intent is determined not only from the property owner's declarations, but also from his acts and the circumstances surrounding his absence from the property. The fact that an owner is no longer using property as a principal residence may be relevant on the issue of abandonment, but it is not dispositive. An owner's temporary absence from the property or an owner's occupancy of another premises does not necessarily demonstrate an intent to abandon the homestead under the law. The law does not impose a requirement of continuous occupation to preserve a homestead. Similarly, the leasing of part or all of a homestead property does not as a matter of law establish an abandonment. Rather, a court must consider all the pertinent facts or circumstances in determining whether the owner formed the intent never to return. In evaluating an owner's intent, the Court must consider such factors as the length of the owner's absence, the reasons for the absence, purchase of a new home, etc.

A homestead interest is presumed to continue indefinitely absent proof of clear discontinued use and the intent to permanently abandon the homestead interest. Homestead protection is usually lost where the owner "abandons" the homestead by ceasing to use the property as a primary residence. Temporary renting of the homestead does not change homestead character, unless the owner acquires another homestead property. To prove abandonment, one must show that the claimant discontinued use and intended to permanently abandon the homestead. When homestead rights have been established, such rights are presumed to continue unless a challenger satisfies the burden of proving abandonment through competent evidence.


Under California law, a homestead can be abandoned only if the debtor has recorded a declaration of abandonment, records a new declaration of homestead on a different property, executes a conveyance of the homestead, or abandons the homestead by implication by establishing another residence as his principal dwelling

A homestead may be abandoned by implication under California law in two circumstances. First, implied abandonment occurs when the debtor has purchased a new residence because the automatic homestead exemption applies to the new residence. This is not the case here, as Kelley is a renter in Napa, not a property owner. Second, a homestead may be abandoned by implication where the debtor has shown no intention of using the property as a personal residence

The court has intentionally avoided applying In re Anderson, 824 F.2d 754 (9th Cir.1987), to this analysis. Fifteen years after its issuance, the rule in that case remains unclear. On the one hand, the court in Anderson specifically noted that continued residency is not a requirement for a valid declared homestead exemption, 824 F.2d at 757, and is often cited for that proposition. On the other hand, it seems to say later on the same page and following pages that 1983 changes in California law altered this rule. The court notes that subsequent state court decisions such as Webb v. Trippet have avoided any mention of Anderson. (1)The court in Webb v. Trippet specifically found error in the ruling of the trial court that continued residency was required. This case was handed down four years after Anderson. Anderson involved debtors who attempted to exempt a prior residence with a recorded declaration of homestead even though they had subsequently purchased and currently resided in another home. Instead of ruling that homestead law had changed, a better way to reach the same result would be to find, consistent with Webb v. Trippet, that purchase of the second residence constituted abandonment by implication of the declared homestead. Treatises on the subject treat Anderson as inconsistent with California law to the extent it holds that continued residency is required for a valid declared homestead exemption.

Cases from other jurisdictions either state that abandonment of a homestead is a question of fact [see, i.e.: Hildebrand v. Harrison, 361 P.2d 498 (Okla.1961); City of Jacksonville v. Bailey, 159 Fla. 11, 30 So.2d 529 (1947)], or treat it as a question of fact [see, i.e.: McIntosh v. Borchers, 196 Neb. 109, 241 N.W.2d 534 (1976); Monroe v. Monroe, 465 S.W.2d 347 (Ark.1971)]. The Oil Company emphasizes that the platting was done pursuant to a plan to sell. It concludes that the forming of a plan to sell part of a homestead and the efforts to effect such a sale constitute an abandonment of that part of the homestead. That is not the law in this State. If the grantee is to take title free from a lien of judgment against his grantor (Nelson v. Griggs County, supra), an abandonment cannot automatically be found to take place in the period of time which must exist between the point at which the grantor decides to sell and the point at which the sale is made. An attempt to sell or rent real property is not in itself evidence of abandonment of the homestead.
In Sullivan v. Barnett, 471 S.W.2d 39, 43(Tex.1971), when asked to find an abandonment in an attempted sale, the Texas Supreme Court said:
"An intention or attempt to sell a homestead does not amount to an abandonment as long as the homestead claimants retain possession and have no intent to abandon unless the sale materializes. [Cites omitted.]"
See also, Bellport v. Harder, 196 Kan. 294, 411 P.2d 725, 731 (1966), where the Kansas Supreme Court said:
"... the property did not lose its homestead character a few minutes before the deed was executed by the [sellers] to their daughter, as contended by the appellant, on the ground that they had formed an intention to abandon their home."


CONFUSION REGARDING HOMESTEAD AND TAXATION
A distinction should be made between the law relating to homestead and the enforcement of liens and the transferability of homestead property as contrasted with the character of the property with relation to the payment of AD VALOREM taxes. That is to say, if a t the beginning of a calendar year, an affidavit is filed by homestead claimant claiming certain property as his homestead, the tax assessor does not make inquiries as to whether or not the person requesting the exemption is in fact in possession of the property for which he claims an exemption. Therefore, if a homeowner owns a residence on the East side of town and a residence on the West side of town, but files a homestead exemption on the property on the West side of town which may have a higher value, and therefore, save some taxes. However, when the question is which property is mortgagable, the actual occupancy of the property is determinative, and if the residence is that property on the East side of town, it could not be mortgaged except in the instances outlined in SALES AND ENCUMBRANCES, regardless of the disclaimer of the homestead filed with the tax assessor.

CONCLUSIONS

The law regarding homestead involves highly technical principles. Care should be taken to have a lawyer review your facts if you are ever in doubt regarding the principles outlined herein. Because of the safeguards built into the law, transactions involving homestead property should be carefully structured.
It is important to note that because of the dangers involved with homestead, title companies and mortgage lenders are very particular in the treatment of homestead property. Even if legal principles are on the side of a title company or a mortgage lender, they may decline to take action based on internal policy principles and risk of loss, rather than relying entirely on the legal principles outlined herein. Therefore, if homestead property is to be conveyed or mortgaged, a review of the facts with the lawyer for the title company or for the mortgage lender should be made before the transaction is attempted, in order to determine that the transactions one into which the title company or mortgage lender desires to enter.

A change in the above law now allows for homeowners to take out a home equity loan on their homesteaded property.
"Continuous uninterrupted physical presence is not required to create a homestead." Burdick v. Burdick, 399 So. 2d 410 (Fla. 3d DCA 1981). "A homestead is abandoned by taking up a permanent abode at a distant place. Whether there has been an abandonment
of a homestead . . . should be determined by a consideration of all the pertinent facts and circumstances of each case." Miller v. West Palm Beach Atlantic Nat'l Bank, 142 Fla. 22, 194 So. 230 (1940). In Dean v. Heimbach, 409 So. 2d 157 (Fla. 1982), the court found that involuntary absence from homestead, caused by legal problems of the owner, are insufficient to constitute abandonment of the homestead. The status of homestead is
preserved "when the family unit is temporarily removed from the homestead but the homestead remains the permanent abode to which the family unit intends to return." Dean, 409 So. 2d at 158. Novoa's testimony created an issue of fact as to his intention to
return, and not abandon the homestead. Moreover, in granting summary judgment in this case, the trial court impermissibly weighed the credibility of Mrs. Novoa and disregarded her testimony that they intended to title the property as tenants by the entireties. This was improper, as credibility determinations must be made by a jury at trial.
Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000); Jebailey.

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