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Separate residences and homestead exemption - Separate Family Units

Author johnbsims3
Admin 

#1 - Posted: 22 Jun 2007 14:46 - Edited by: johnbsims3 
Number: AGO 75-146
Date: May 28, 1975
Subject: Separate residences and homestead exemption
075-146 -- May 28, 1975
TAXATION
HUSBAND AND WIFE MAINTAINING SEPARATE RESIDENCES
MAY BOTH QUALIFY FOR HOMESTEAD EXEMPTION

To: John W. Mikos, Sarasota County Property Appraiser, Sarasota

Prepared by: David M. Hudson, Assistant Attorney General

QUESTION:
Should a county property appraiser grant homestead
exemption to both applicants when a married woman and her
husband own two separate residences, both as tenants by the
entireties, and the married woman is separated from her
husband and living and making her permanent home in one of
the residences and her husband is living and making his
permanent home in the other and both timely filed for
homestead exemption?

SUMMARY:
A married woman and her husband may establish separate
permanent residences without showing "impelling reasons" or
"just grounds" for doing so. If it is determined by the
property appraiser that separate permanent residences and
separate "family units" have been established by the
husband and wife and they are otherwise qualified, each may
be granted homestead exemption from ad valorem taxation
under Art. VII, s. 6, State Const. The fact that both
residences may be owned by both husband and wife as tenants
by the entireties will not defeat the grant of homestead ad
valorem tax exemption to the permanent residence of each.
Your question should, in my opinion, be answered in the
affirmative.
The "homestead exemption" from ad valorem taxation is provided by
Art. VII, s. 6, State Const.:
(a) 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. The real estate may be held by legal or equitable
title, by the entireties, jointly, in common, as a
condominium, or indirectly by stock ownership or membership
representing the owner's or member's proprietary interest
in a corporation owning a fee or a leasehold initially in
excess of ninety-eight years.
(b) Not more than one exemption shall be allowed any
individual or family unit or with respect to any
residential unit. . . .
Considering the provisions of the homestead ad valorem tax
exemption as contained in Art. X, s. 7, State Const. 1885, one of my
predecessors in office expressed the opinion in AGO 0-899, Biennial
Report of the Attorney General, 1939-1940, p. 449, that where a
married woman has established a legal residence separate from her
husband in the home which she owns and in which she lives, she would
be entitled to the homestead exemption, and that would "not take away
from the husband his rights to the exemption upon the property on
which he lives and makes his permanent home." Accord: Attorney
General Opinion 051-34, Biennial Report of the Attorney General,
1951-1952, p. 346, and AGO 052-158, id. at 347. It should be noted
that each of these prior opinions considered as significant the fact
that the establishment of a separate domicile by the wife was proper
because the cohabitation of the husband and wife as husband and wife
had come to an end, i.e., upon separation for purposes of divorce.
See also AGO 063-9; compare AGO 047-389, Biennial Report of the
Attorney General, 1947-1948, p. 193. However, the Florida Supreme
Court, in its opinion in Judd v. Schooley, 158 So.2d 514 (Fla. 1963),
rev'g 149 So.2d 587 (2 D.C.A. Fla., 1963), held that even though a
married woman was living congenially with her husband, nonetheless it
is legally possible for ". . . a married woman, in good faith, to
claim a permanent home in Florida property even though her husband is
legally domiciled elsewhere." The court further held ". . . that a
showing of necessity to establish the separate abode is not essential
to a showing of good faith under Article X, Section 7, supra. Id."
(Emphasis supplied.) See also Ashmore v. Ashmore, 251 So.2d 15 (2
D.C.A. Fla., 1971), cert. dismissed, 256 So.2d 513 (Fla. 1972).
In AGO 064-5, released shortly after the decision in Judd v.
Schooley, supra, was rendered, my predecessor in office was asked
whether both the husband and wife, each owning separate dwelling
houses, could be granted homestead ad valorem tax exemptions. It was
expressly presumed that
. . . the wife resides in her dwelling, the husband
residing in his dwelling, each alone, during periods of
time, while at other periods of time they reside together
in the husband's dwelling, and at still other periods of
time they reside together in the wife's dwelling.
Considering "the facts and circumstances surrounding the question"
presented, my predecessor expressed the opinion that the question
should be answered in the negative -- that both could not be "granted
homestead tax exemption on dwelling houses maintained by each of them
merely because they spend a large part of the time in their separate
dwelling houses." Id. Under the facts considered therein, it is
still my opinion that it would be improper to grant homestead tax
exemption to both the husband and the wife, because the requirement
of Art. VII, s. 6(a), State Const., that the respective homesteads
must be the "permanent residence of the owner" is not satisfied as to
both the husband and the wife. However, any implication in AGO 064-
5, supra, that both the husband and wife could not qualify merely
because there were no "impelling reasons for separate residences and
domiciles" is hereby receded from. As stated by the court in Judd v.
Schooley, supra:
. . . Indeed, the rule was as Milton expressed it in
Paradise Lost, Book X, Line 195: "And to thy husband's will
Thine shall submit; he over thee shall rule."
However, we have traveled a long way since Milton, as
every husband knows. We deem it unnecessary to continue to
cloud the law with the mist of an out-moded fiction that
has been dispelled by the light of present-day realities.
[(See) 158 So.2d at 516.]
See also Ashmore v. Ashmore, supra; Marshall v. State, 301 So.2d 477
(1 D.C.A. Fla., 1974); Art. X, s. 5, State Const.; and ss. 708.08 and
725.07, F. S. Cf. AGO 063-47 where the opinion was expressed that an
unmarried minor, whose disabilities of nonage have not been removed,
is unable to establish permanent residence separate and apart from
that of his or her parents.
If both the husband and wife have established separate domiciles
and residences, Art. VII, s. 6(a), State Const., requires only that
the owner "maintain thereon the permanent residence of the owner."
The Legislature has defined the words "permanent residence" in s.
196.051, F. S., and the question of whether a person is maintaining
his or her permanent residence on certain property is, within the
above statutory guideline, a question of fact to be determined in the
first instance by the property appraiser. Attorney General Opinions
058-329, 069-37, 072-154, and 074-115. The property appraiser is
thus limited to a determination of whether separate residences have
in law or in fact been established, not whether there are impelling
reasons, AGO 064-5, supra, or just grounds, AGO 051-34, supra, for
the separate residences, and a determination that the property is the
permanent residence of the owner.
The fact that both of the residences under consideration herein
are owned by both the husband and the wife as tenants by the
entireties would not defeat the grant of homestead ad valorem tax
exemption to the permanent residence of each. Compare, AGO's 0-899,
supra, where the husband and wife each had separate ownership of
their respective homestead properties, with AGO 051-34, supra, where
the ownership of the separate homestead properties was not
considered, and AGO 052-158, supra, where it was stated that "[t]he
wife must be the owner of the property claimed by her as a
homestead." Article VII, s. 6(a), State Const., expressly provides
that the homestead property may be held by the entireties.
Additionally, I have previously expressed the opinions that "[b]oth
husband and wife are natural persons and each is therefore entitled
to recognition as a property owner with respect to the interest in a
tenancy by the entirety," AGO 071-143.
Section 6(b) of Art. VII, State Const., presents an additional
factor which must be considered here also. That section provides, in
pertinent part, that "[n]ot more than one exemption shall be allowed
any . . . family unit. . . ." The question thus arises as to whether
a husband and wife who have each established bona fide separate
permanent residences, but who are still married, still constitute one
"family unit" within the purview of Art. VII, s. 6(b).
The provisions in Art. VII, s. 6(b), State Const., restricting the
homestead ad valorem tax exemption to one per family unit appears for
the first time in the 1968 revision; the 1885 Constitution, Art. X,
s. 7, contained no such limitation. The proposed revision of the
Constitution drafted by the revision commission originally
recommended the words "married couple," but it was changed and
ultimately enacted and ratified as family unit. See "Commentary" to
Art. VII, s. 6(b), by Talbot "Sandy" D'Alemberte, 26A F.S.A. 112. It
has been held that a single individual could be considered a family
unit. Dandridge v. Gabel, 261 N.Y.S.2d 371, 373. In Solomon v.
Davis, 100 So.2d 177 (Fla. 1958), the Florida Supreme Court quoted
with approval the finding of the trial court that, with regard to a
married woman living with her husband, "[h]er household would exist
as a family unit, regardless of her marital status, and regardless of
the presence or absence of a husband in the home. . . ." (Emphasis
supplied.) Cf. AGO 071-269 in which I expressed the opinion that
where the husband and wife are joint owners of a single residence,
they would not be entitled to two homestead exemptions because "there
would not appear to be separate residential or family units."
Additionally, Art. VII, s. 6(a), State Const., provides the homestead
exemption to "[e]very person" who is otherwise qualified, and again,
the legal fiction that a woman's identity disappears or merges with
that of her husband's upon marriage is no longer of any efficacy in
Florida. Ashmore v. Ashmore, supra; see also Art. X, s. 5, State
Const.
It is my opinion, pending judicial or legislative clarification
otherwise, that upon establishment of separate, bona fide permanent
residences, the husband and wife may also establish separate family
units so that Art. VII, s. 6(b), supra, would not preclude granting
homestead ad valorem tax exemption to the permanent residence of
each.
Initially, it is my opinion that, as in considering whether the
wife has established a residence separate from her husband's, it is
not essential that the husband and wife be "legally separated" in
determining whether they have also established separate family units,
for the marriage relationship continues to exist even though the
husband and wife may be legally separated, AGO 071-228. However, if
one spouse should continue to maintain the home of the other, such as
by making the payments on the mortgage, and for insurance and taxes,
it would appear that the spouses under such circumstances have not
established separate family units. See AGO 070-154. The burden is,
of course, on the applicants to demonstrate that they have
established separate family units, for
Article VII, Section 6, of the Constitution of the State of
Florida, F.S.A., does not establish an absolute right to a
homestead exemption. Rather, it clearly provides that
taxpayers who otherwise qualify shall be granted an
exemption only "upon establishment of right thereto . . .
." [Horne v. Markham, 288 So.2d 196, 199 (Fla. 1973).]

Author johnbsims3
Admin 

#2 - Posted: 22 Jun 2007 14:49 
158 So.2d 514
Supreme Court of Florida.
Kimi T. JUDD, Appellant,
v.
Harry SCHOOLEY, as Tax Assessor of Lee County, Florida, Appellee,
and
George S. Hunter, Herman J. Hastings, Mack H. Jones, Julian Hudson and J. Fred Huber, as and constituting the Board of County Commissioners of Lee County, Florida, a Political Subdivision, and Ray E. Green, as Comptroller of the State of Florida.
No. 32548.
Dec. 13, 1963.
Taxpayer's proceeding for declaratory decree that she was entitled to homestead tax exemption on her separate residence. The Circuit Court of Lee County, Archie M. Odom, J., granted decree for taxpayer and the county and state officials appealed to the Supreme Court, 142 So.2d 727, which transferred the cause. The District Court of Appeal, 149 So.2d 587, reversed and the taxpayer appealed. The Supreme Court, Thornal, J., held that in absence of finding as to bad faith, taxpayer, a married woman who was living congenially with her husband who was domiciled in another jurisdiction, could establish residence in her separate property and thereby receive tax benefits under Homestead Exemption Amendment.
Decision of District Court of Appeal reversed and cause remanded to that court with directions.
West Headnotes

[1] KeyCite Notes

205 Husband and Wife
205IV Disabilities and Privileges of Coverture
205IV(C) Contracts
205k79 k. Capacity to Contract. Most Cited Cases

205 Husband and Wife
205IV Disabilities and Privileges of Coverture
205IV(D) Trade or Business
205k91 k. Capacity to Trade. Most Cited Cases

205 Husband and Wife
205V Wife's Separate Estate
205V(A) What Constitutes
205k110 k. Nature of Equitable or Statutory Estate. Most Cited Cases

205 Husband and Wife
205VI Actions
205k203 k. Capacity to Sue and Be Sued in General. Most Cited Cases

Married woman may own separate property, enter into contracts, sue and be sued, engage in business, and otherwise conduct affairs almost with same absence of restraint as if she were a feme sole. F.S.A. § 708.08.

[2] KeyCite Notes

371 Taxation
371III Property Taxes
371III(F) Exemptions
371III(F)1 In General
371k2317 k. Property of Individuals in General. Most Cited Cases
(Formerly 371k219)

Married woman, who was living congenially with her husband who was domiciled in another jurisdiction, was entitled, in absence of any finding of bad faith, to establish residence in her separate property and thereby receive tax benefits under Homestead Exemption Amendment. F.S.A.Const. art. 10, § 7; F.S.A. §§ 192.14, 192.19, 708.08-708.10.

*514 Henderson, Franklin, Starnes & Holt and Duane A. Reynolds, Fort Myers, for appellant.
R. W. Shaughnessy, Fort Myers, for appellee.

THORNAL, Justice.
We have for review on appeal a decision of a District Court of Appeal, which initially construed a controlling provision of the Florida Constitution.
We must decide whether a married woman, living congenially with her husband, may establish a residence in her separate property and thereby receive the tax benefits provided by Article X, Section 7, Florida *515 Constitution, F.S.A., otherwise known as the Homestead Exemption Amendment.
The undisputed facts are revealed by the decision of the District Court. Schooley v. Judd, Fla.App., 149 So.2d 587. For a number of years prior to 1958, Mrs. Judd and her husband owned certain real estate in Lee County. During this period they were both residents of Florida. In December 1958, Mr. Judd conveyed the property to his wife. At that time he announced the removal of his domicile from Lee County to Washington, D. C., where he also owned a home. He changed his domicile for business reasons to enable him to meet certain legal requirements to serve on the board of directors of a corporation in the District of Columbia. Mrs. Judd continued to occupy the Florida property. She also continued to vote in Lee County. She holds a Florida drivers license and maintains a Florida license tag on her automobile. The Judds continue to live together harmoniously as husband and wife and for extended periods of each year reside together in the home on the real estate in question.
In the year 1961 Mrs. Judd applied for the constitutional homestead tax ememption benefits provided by Article X, Section 7, Florida Constitution. The county tax assessor refused to allow the claimed exemption for the announced reason that:
'Husband claims domicile other than Florida. Domicile of wife follows that of husband unless separate set-up for purpose of legal separation or divorce.'
The County Commissioners, as a board of equalization, upheld the decision of the tax assessor. Mrs. Judd thereupon instituted the instant proceeding for a declaratory decree pursuant to Section 192.19, Florida Statutes, F.S.A. The chancellor found with the plaintiff. He held that she was entitled to the claimed exemption.
Initially, the decree was brought to this Court by direct appeal from the circuit court. Having the view that the chancellor did not, by his decree, construe a controlling provision of the Constitution, we transferred the appeal to the District Court of Appeal, Second District. Schooley v. Judd, Fla.1962, 142 So.2d 727. The District Court, by its decision now under review, did construe a controlling constitutional provision. The matter now comes to us on appeal to review that decision.
The appellant here has also filed a petition for a writ of certiorari to review the same decision because of alleged conflicts with prior decisions of this Court. This procedure apparently was adopted out of an abundance of caution in the event that we should decline jurisdiction of the appeal. Our examination of the decision of the District Court has led us to conclude that that court did initially construe a controlling provision of the Constitution. We, therefore, take jurisdiction of the appeal and simultaneously deny the collateral petition for certiorari.
It should be recalled that the chancellor granted the claimed exemption. The majority of the District Court reversed. In doing so the District Court looked to the language of Article X, Section 7, Florida Constitution, which reads in part as follows:
'Every person who has the legal title * * * to real property in this State and who resides thereon and in good faith makes the same his or her permanent home, * * * shall be entitled to an exemption * * *. The Legislature may prescribe appropriate and reasonable laws regulating the manner of establishing the right to said exemption.'
The District Court took cognizance of the rule that normally it is generally recognized that a wife's residence or domicile is that of her husband. It further noted the now accepted exemption to the effect that a wife may acquire a separate residence 'if it should become proper or necessary*516 for her to do so.'Merritt v. Merritt, Fla.1951, 55 So.2d 735. By its decision, which we now review, the District Court held that the constitutional requirement of 'good faith' implicitly impells the conclusion that a married woman cannot, in good faith, establish a separate residence unless she is compelled to do so by the necessity of a degenerating marital relationship. Stated otherwise, it was the holding that in order to establish 'good faith' the married woman must disclose facts which would demonstrate that it is necessary for her to live separate and apart from her husband. This led to the conclusion that when a husband and wife continue to live congenially in the marital relationship, as is the case here, the wife cannot legally establish a Florida residence when her husband is domiciled in another jurisdiction.
We have the view that the decision of the District Court places too great an emphasis on the common-law fiction that by marriage a woman's identity is absorbed into that of her husband. Under this concept, which permeated the law for several hundred years, it was held that upon marriage a woman lost her independence as a legal entity; her property immediately came under the control of her husband; he was entitled to her earnings, if any; she was in all respects subject to his control and domination. Indeed, the rule was as Milton expressed it in Paradise Lost, Book X, Line 195:
'And to thy husband's will Thine shall submit; he over the shall rule.'
However, we have traveled a long way since Milton, as every husband knows. We deem it unnecessary to continue to cloud the law with the mist of an out-moded fiction that has been dispelled by the light of present-day realities.
Married women's 'emancipation statutes,' such as Sections 708.08-708.10, Florida Statutes, F.S.A., enacted twenty years ago, have demonstrated a legislative intention to liberate married women from most of the economic bonds which previously subordinated them to the control of their husbands. In many areas where the legislatures have not acted, the women themselves have taken over and announced their own independence and equality. While continuing to recognize the traditional responsibilities of mothers and housewives, they have moved out into social, political, and economic affairs. They now own or control much of the wealth of the county; they compete in business; they have become governors, judges and legislators, and, when needed, they have joined the ranks of breadwinners.
Article X, Section 7, Florida Constitution, as amended in 1938, eliminated from the exemption requirements, the necessity that one be the 'head of a family', or even a 'citizen' of Florida to enjoy the homestead exemption tax benefit. An individual property owner enjoys the benefit even though he occupies the property alone. Florida citizenship is not required. Smith v. Voight, 158 Fla. 366, 28 So.2d 426. All that is now required is that the property owner reside on the property and in good faith make 'the same his or her permanent home * * *.' By Section 192.14, Florida Statutes, F.S.A., the Legislature has made it clear that permanent residence 'shall not be construed so as to require continuous physical residence on the property * * *.' By this statute residence or permanent residence means 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 * * *.' The cited statute is merely a legislative implementation of the clear import of the Constitution itself.
[1] [2] Under modern statutes a married woman may now own separate property, enter into contracts, sue and be sued, engage in business, and otherwise conduct her affairs almost with the same absence of restraint as if she were a feme sole. Section 708.08, supra. We agree with the Virginia Supreme Court of Appeals when it held that there is no valid reason to prohibit*517 her from establishing a residence of her own even though she continues to live in a congenial marital relationship with her husband, who happens to be domiciled in another jurisdiction. When a claim is made for benefits, such as those announced by the Florida Constitution, it is, of course, essential that the residence be established in good faith but we see no justification for adding the requirement that the independent residence of the wife must come about as the result of a necessity that drives her from a former conjugal abode. Commonwealth of Virginia v. Rutherfoord, 160 Va. 524, 169 S.E. 909, 90 A.L.R. 348. In 1947 the Attorney General of Florida reached a similar conclusion in construing Article X, Section 7, supra. Opinions of the Attorney General, 047-389.
In the instant case there was no finding of bad faith. The exemption was denied purely on the theory of the fiction which has no place in present-day life. This led to the further requirement that good faith can be demonstrated only if it is coupled with a showing of necessity for a separate residence. Our holding simply is that a showing of necessity to establish the separate abode is not essential to a showing of good faith under Article X, Section 7 supra.
We have not overlooked our recent opinion in Juarrero et ux. v. McNayr et al., Fla., 157 So.2d 79. There we simply held that an alien living in Florida under a temporary visa could not obtain the benefits of homestead exemption because it was legally impossible for him to claim the property as his 'permanent home.' The distinction is that in the instant case we have held that it is legally possible for a married woman, in good faith, to claim a permanent home in Florida property even though her husband is legally domiciled elsewhere. Whether 'good faith' is proven is a matter to be decided in each case. Here the only question was whether proof of necessity was an essential element of proof of 'good faith.'
The decision of the District Court of Appeal is reversed and the cause is remanded to that court for the entry of a judgment consistent herewith.
It is so ordered.

ROBERTS, Acting C. J. CALDWELL and HOBSON (Ret.), JJ., and WALKER, Circuit Judge, concur.


Fla. 1963
Judd v. Schooley
158 So.2d 514

Author johnbsims3
Admin 

#3 - Posted: 22 Jun 2007 14:49 
738 So.2d 522, 24 Fla. L. Weekly D1924
District Court of Appeal of Florida,
Fourth District.
Phyllis M. LAW, Appellant,
v.
Robert R. LAW, Barbara Law, Kimberly Pero and Teresa Fitzsimmons, Appellees.
No. 98-2416.
Aug. 18, 1999.
Former wife sought to enforce lien against former husband's residence. The Circuit Court, Broward County, Estella May Moriarty, J., found that residence was entitled to homestead exemption, and former wife appealed. The District Court of Appeal, Klein, J., held that: (1) former husband's contract to sell his home did not, as a matter of law, preclude him from taking homestead exemption, and (2) as a matter of first impression, former husband was entitled to exemption, even though he and current wife, from whom he was separated, owned another home for which they claimed homestead exemption.
Affirmed.
West Headnotes

[1] KeyCite Notes

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

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

Exemption from liens for homestead is limited to the residence of owner or owner's family, and requires actual occupancy of home with intention to remain there. West's F.S.A. Const. Art. 10, § 4.

[2] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k167 k. Sale and Conveyance. Most Cited Cases

Contract for sale of residence does not as matter of law end homestead status. West's F.S.A. Const. Art. 10, § 4.

[3] KeyCite Notes

202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k167 k. Sale and Conveyance. Most Cited Cases

Former husband's contract to sell his mother's home, in which he permanently resided from period prior to his mother's death until property was sold, did not, as a matter of law, preclude former husband from having homestead exemption from former wife's lien.

[4] KeyCite Notes

202 Homestead
202I Nature, Acquisition, and Extent
202I(A) Nature, Creation, and Duration of Estate or Right in General
202k14 k. Effect of Ownership of Other Property. Most Cited Cases

Husband, who permanently resided in separate home from wife, was entitled to homestead exemption on that residence from former wife's lien, even though husband and current wife owned another home for which they claimed homestead exemption, where there was no indication that husband and wife were separated for illegitimate reasons. West's F.S.A. Const. Art. 10, § 4.

*523 Christopher B. Knox and William P. Doyle, Hollywood, for appellant.
Linda A. Conahan and Ann M. Burke of English, McCaughan & O'Bryan, P.A., Fort Lauderdale, for appellees.

KLEIN, J.
Appellant is the former wife of appellee Robert Law and has a judgment against him for support payments. The issue presented by this case is whether, when Robert inherited his mother's home, it became his homestead and therefore exempt from execution. Robert and his present wife Barbara own another home as tenants by entirety, but they had become separated and Robert was living in his mother's home at the time of her death. We affirm the trial court's finding that the inherited home was Robert's homestead.
In May, 1995, Robert and his present wife, Barbara, became separated. Robert moved out of the Hollywood home, which he and Barbara owned as tenants by entirety, and moved into the home owned by his mother in Davie. He took with him his minor great-grandson, for whom he is the legal guardian. Robert received his and his ward's mail at the Davie property from the time they moved in. In February, 1997, Robert's mother became very ill. Robert then asked his wife, Barbara, to help him take care of his mother, and Barbara moved into the Davie home. She continued to live there with Robert until the Davie home was sold.
After Robert's mother became ill, it was decided that the Davie home should be sold in order to pay for medical care for Robert's mother. Robert's mother gave him a power of attorney, which he used to sign a contract for sale to the appellees Pero and Fitzsimmons. Robert's mother died in March, 1997, and a few weeks later, in April, Robert filed a designation of homestead claiming the Davie home as exempt property. He then filed this declaratory action seeking to declare that home to be his homestead and therefore exempt from liens. On April 22 an order was entered by the probate court determining*524 that the Davie home had passed to Robert as his mother's only heir. The sale to Pero and Fitzsimmons closed on April 28.
The trial court found that the Davie home was Robert's homestead and was thus exempt from Phyllis' judgment, and Phyllis appeals, arguing that (1) the Davie home could not be homestead because the Hollywood home was Robert's homestead, and (2) that Robert's dealings constituted fraud.
[1] The homestead exemption in Article 10, section 4 of the Florida Constitution is "limited to the residence of the owner" or the owner's family. It requires "actual occupancy of a home with intention to remain there." In re Van Meter's Estate, 214 So.2d 639, 643 (Fla. 2d DCA 1968)(quoting Croker v. Croker, 51 F.2d 11 (5th Cir.1931)).
[2] [3] One argument advanced by Phyllis is that the fact that Robert had contracted to sell the Davie property prior to his mother's death precludes a finding that he had an intent to make the Davie property his residence after his mother died. A contract for sale, however, does not as a matter of law end homestead status. In re Estate of Skuro, 467 So.2d 1098 (Fla. 4th DCA 1985) and cases cited. See also Orange Brevard Plumbing and Heating Co. v. La Croix, 137 So.2d 201 (Fla.1962)(even the sale of a homestead does not necessarily destroy its status, because the proceeds may be utilized to purchase a new homestead without losing the exemption). The trial court found as a matter of fact that Robert was permanently residing in the Davie home prior to his mother's death and continuously thereafter until the property was sold. The agreement to sell, does not, as a matter of law, preclude Robert from having the homestead exemption.
[4] The more difficult question is presented by the fact that Robert and his present wife have at all times owned a home in Hollywood for which they claimed a homestead tax exemption. Phyllis argues that the Davie home could not be homestead because the Hollywood home was, as a matter of law, Robert's homestead, and a person cannot have two homesteads.
In Myers v. Lehrer, 671 So.2d 864, 866 (Fla. 4th DCA 1996), we expressed the general principles which should guide us:
Historically, the purpose of the homestead provision was to protect the family, to "provide it a refuge from the stresses and strains of misfortune." Collins v. Collins, 150 Fla. 374, 7 So.2d 443, 444 (1942); City Nat'l Bank v. Tescher, 578 So.2d 701, 702 (Fla.1991). The 1985 amendment to article X, section 4 extended the protection to a "natural person," without regard to status as head of a family. Cain v. Cain, 549 So.2d 1161, 1163 (Fla. 4th DCA 1989). The homestead exemption is liberally construed for the benefit of those whom it was designed to protect. Id.
With the exception of a bankruptcy case, the issue presented is one of first impression. In Colwell v. Royal International Trading Corp., 226 B.R. 714 (S.D.Fla.1998), the bankruptcy court held that a husband and wife who had been living separately for more than three years could not each claim a homestead exemption under the Florida Constitution, but on appeal, the district court reversed. Although the facts are not identical, Colwell is significant because it recognizes that married people who live separately can each have a homestead exemption. In Colwell, at the time they filed their bankruptcy petition, the husband and wife were married, but had been separated for over three years and living in residences owned individually by each. Each had obtained a homestead exemption for tax purposes. Relying on the same principles this court relied on in Myers, the district court judge reversed the bankruptcy court and allowed homestead exemptions to each spouse.
*525 One of the things we noted in Myers was that the 1985 amendment to our homestead exemption in the constitution extended the exemption to a "natural person" regardless of whether the person was the head of a family. Following that, our supreme court said in Public Health Trust of Dade County v. Lopez, 531 So.2d 946, 948 (Fla.1988):
As a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.
We see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements of the exemption. When we say "legitimately" we mean that there is no "fraudulent or otherwise egregious act" by the beneficiary of the homestead exemption. Isaacson v. Isaacson, 504 So.2d 1309 (Fla. 1st DCA 1987); see also Radin v. Radin, 593 So.2d 1231 (Fla. 3d DCA 1992). In the present case there was no evidence that Robert and Barbara's separation in May, 1995, was for anything other than legitimate reasons, and ample evidence to support the trial court's finding that he was residing in the Davie home when he inherited it, with the intention to remain there until it was sold.FN1
FN1. Phyllis also argues that there was fraud because in connection with the power of attorney Robert either had his mother execute a quit claim deed or signed his mother's name. Whether Robert's intent was fraudulent was an issue of fact, and there was evidence to support the trial court's rejection of this theory.
We agree with Phyllis that Robert cannot have two homesteads, and that a husband and wife in an intact marriage cannot have two homesteads. Under the facts in this case, however, we see no reason why Robert's homestead could not be different from the homestead of his wife, where their separation was bonafide, and it was Robert's intent to reside in the Davie home. We therefore affirm.

GROSS and HAZOURI, JJ., concur.


Fla.App. 4 Dist.,1999.
Law v. Law
738 So.2d 522, 24 Fla. L. Weekly D1924

Author johnbsims3
Admin 

#4 - Posted: 13 Dec 2007 11:30 
AGO 2005-60

Should a county property appraiser grant homestead exemptions to both applicants when a married woman and her husband own two separate residences and have applied for separate homestead exemptions under Article VII, section 6, Florida Constitution?


AGO 75-146

Should a county property appraiser grant homestead
exemption to both applicants when a married woman and her
husband own two separate residences, both as tenants by the
entireties, and the married woman is separated from her
husband and living and making her permanent home in one of
the residences and her husband is living and making his
permanent home in the other and both timely filed for
homestead exemption?
AGO_75146_Spouses_.d.docAttached file: Spouses and Seperate residences
 

Author johnbsims3
Admin 

#5 - Posted: 13 Dec 2007 11:31 
Florida Administrative Code 12D-7.007(7)

A married woman and her husband may establish separate permanent residences without showing "impelling reasons" or "just ground" for doing so. If it is determined by the property appraiser that separate permanent residences and separate "family units" have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption from ad valorem taxation under Article VII, Section 6, 1968 State Constitution. The fact that both residences may be owned by both husband and wife as tenants by the entireties will not defeat the grant of homestead ad valorem tax exemption to the permanent residence of each.
AGO_200560_Homestea..docAttached file: Homestead and Seperate Residences
 

Author johnbsims3
Admin 

#6 - Posted: 24 Jan 2011 12:06 
Number: AGO 2005-60
Date: November 21, 2005
Subject: Homestead exemption, separate residences
The Honorable Morgan B. Gilreath, Jr.
Volusia County Property Appraiser
123 West Indiana Avenue, Room 102
Deland, Florida 32720-4270

RE: TAXATION – PROPERTY APPRAISER – HOMESTEAD EXEMPTION – separate residences and homestead exemption. Art. VII, s. 6, Fla. Const.

Dear Mr. Gilreath:

As Property Appraiser for Volusia County, you have asked for my opinion on substantially the following question:

Should a county property appraiser grant homestead exemptions to both applicants when a married woman and her husband own two separate residences and have applied for separate homestead exemptions under Article VII, section 6, Florida Constitution?

Article VII, section 6, Florida Constitution, provides:

"(a) 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. The real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by stock ownership or membership representing the owner's or member's proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years.
(b) Not more than one exemption shall be allowed any individual or family unit or with respect to any residential unit. No exemption shall exceed the value of the real estate assessable to the owner or, in the case of ownership through stock or membership in a corporation, the value of the proportion which the interest in the corporation bears to the assessed value of the property."

Thus, under Article VII, section 6, those persons who meet the constitutional requirements are able to qualify for a tax exemption for their homestead property. Such person must (1) have legal or equitable title to the real estate for which the exemption is filed; and (2) maintain his or her own permanent residence, or the permanent residence of another who is legally or naturally dependent upon the applicant, on the property. The constitutional provision allows no more than one exemption to any individual or family unit or with respect to any residential unit.

Your question arises in light of an earlier opinion of this office, Attorney General Opinion 75-146, and certain factual concerns. Attorney General Opinion 75-146 considered whether the county property appraiser should grant homestead exemptions to both applicants when a married woman and her husband owned two separate residences. In that opinion, both properties were held as tenants by the entireties, and the married woman was separated from her husband. She was living and making her permanent home in one of the residences and her husband was living and making his permanent home in the other. Both had timely filed for the homestead exemption. Under the factual situation presented in that opinion request, this office concluded that a married woman and her husband could establish separate permanent residences without showing "impelling reasons" or "just grounds" for filing. The opinion stated that if the property appraiser determined that separate permanent residences and separate "family units" had been established by the husband and wife and they were otherwise qualified, each could be granted a homestead exemption from ad valorem taxation under Article VII, section 6, Florida Constitution. The fact that both residences were owned by both the husband and wife as tenants by the entireties was not seen to defeat the grant of homestead ad valorem tax exemption to the permanent residence of each.

According to your letter, you are concerned about the homestead status of property in a situation where a husband and wife live within easy driving distance of two separately owned properties and claim to be two separate family units. Each spouse claims a homestead exemption. You have asked for further guidance in this situation.

As the Florida Supreme Court held in Horne v. Markham:

"Article VII, Section 6, of the Constitution of the State of Florida . . . does not establish an absolute right to a homestead exemption. Rather, it clearly provides that taxpayers who otherwise qualify shall be granted an exemption only 'upon establishment of right thereto . . . .'"[1]

The burden is on the applicants to demonstrate that they have established separate family units. This office and the Florida courts have recognized that in order for there to be entitlement to a homestead tax exemption, there must be ownership of the home, residence therein, and the making of such residence as the permanent home in good faith.[2]

The constitutional and statutory homestead provisions should be interpreted in the liberal and beneficent spirit in which they were conceived.[3] Where the benefits of the tax exemption are claimed, the constitution or statutes involved must be construed strictly against the one attempting to bring himself or herself within the terms of the exemption.[4] It is the bona fide intent of the parties to make the residence a homestead or permanent residence and occupying it as such exclusively of any other dwelling place that determines the existence of a homestead and mere occupancy without such intention will not suffice. The question of intent is to be determined by all the surrounding facts and circumstances and not necessarily by the representation of the parties.[5] In fact, section 196.015, Florida Statutes, provides a number of factors for the property appraiser to consider in determining whether an applicant for a homestead exemption intends to establish a permanent residence in this state.

In Attorney General Opinion 75-146 this office reviewed earlier opinions that had considered significant the fact that the establishment of a separate domicile by the wife was proper because cohabitation as husband and wife had ended with separation for purposes of divorce.[6] However, the Florida Supreme Court, in its 1963 opinion in Judd v. Schooley,[7] held that even though a married woman was living congenially with her husband, nonetheless it was legally possible for "a married woman, in good faith, to claim a permanent home in Florida property even though her husband is legally domiciled elsewhere." The court went on to say that " . . . a showing of necessity to establish the separate abode is not essential to a showing of good faith under Article X, section 7[.]"[8]

In a 1964 Attorney General's Opinion released shortly after the decision was rendered in Judd v. Schooley, supra, this office considered whether both a husband and wife, each owning separate dwelling houses, could be granted homestead ad valorem tax exemptions. The opinion was based on the presumption that "the wife resides in her dwelling, the husband residing in his dwelling, each alone, during periods of time, while at other periods of time they reside together in the husband's dwelling, and at still other periods of time they reside together in the wife's dwelling." My predecessor in office concluded that the question should be answered in the negative, that is, that both could not be "granted homestead tax exemption on dwelling houses maintained by each of them merely because they spend a large part of the time in their separate dwelling houses."[9]

As this office clarified in Attorney General Opinion 75-146, if both a husband and wife have established separate domiciles and residences, the Florida Constitution requires that the owner "maintain thereon the permanent residence of the owner." The Legislature has defined the words "permanent residence" in section 196.012(18), Florida Statutes, as:

"that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred."[10]

A determination of whether a person is maintaining his or her permanent residence on certain property is, within the above statutory guidelines, a question of fact to be determined in the first instance by the property appraiser.[11] The property appraiser is limited to a determination of whether separate residences have in law or in fact been established and a determination that the property is the permanent residence of the owner. Section 196.015, Florida Statutes, sets forth relevant factors in making those determinations.

Section 6(b) of Article VII, Florida Constitution, presents an additional matter for consideration. The constitutional provision states that "[n]ot more than one exemption shall be allowed any . . . family unit . . . ." Thus, the question of whether a husband and wife who have each established bona fide separate permanent residences, but who are still married, may represent one "family unit" within the scope of Article VII, section 6(b). As my predecessor in office concluded in Attorney General Opinion 75-146, "upon establishment of separate, bona fide permanent residences, the husband and wife may also establish separate family units so that Art. VII, s. 6(b), supra, would not preclude granting homestead ad valorem tax exemption to the permanent residence of each." The opinion recognized that it was not essential that the husband and wife be "legally separated" in determining whether they have also established separate family units, for the marriage relationship continues to exist even though the husband and wife may be legally separated.[12] That opinion does caution, however, that if one spouse should continue to maintain the home of the other, as evidenced by making payments on the mortgage and for insurance and taxes, it would not appear that the spouses have established separate family units.[13]

In sum, it is my opinion that a county property appraiser may grant a homestead exemption to both applicants when a married woman and her husband own two separate residences if each taxpayer establishes the right thereto, that is, if each can establish ownership of the home, residence therein, and the making of such residence as the permanent home in good faith. The property appraiser must make this determination from an objective evaluation of the surrounding facts and circumstances.

Sincerely,

Charlie Crist
Attorney General

CC/tgh

-------------------------------------------------- ------

[1] 288 So. 2d 196, 199 (Fla. 1973). And see Op. Att'y Gen. Fla. 03-11 (2003).

[2] Id.; Ops. Att'y Gen. Fla. 52-158, p. 347 (1952) and 02-19 (2002). See also 12D-7.007(1), Fla. Admin. Code, which provides that "[f]or 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 moving therefrom."

[3] See, e.g., Schooley v. Judd, 149 So. 2d 587 (Fla. 2nd DCA 1963), cert. den. 155 So. 2d 615, rev'd on other grounds, 158 So. 2d 514 (Fla. 1963); Op. Att'y Gen. Fla. 02-19 (2002).

[4] Id.

[5] See, e.g., Op. Att'y Gen. Fla. 57-327, p. 393 (1957).

[6] See Op. Att'y Gen. Fla 51-34, p. 346 (1951), 52-158, p. 347 (1952) and 63-09 (1963).
[7] 158 So. 2d 514 (Fla. 1963), rev'd 149 So. 2d 587 (Fla 2nd DCA 1963).

[8] Cf., Ashmore v. Ashmore, 251 So. 2d 15 (Fla. 2nd DCA 1971), cert. dismissed, 256 So. 2d 513 (Fla. 1972).

[9] Op. Att'y Gen. Fla 64-05 (1964). And see Op. Att'y Gen. Fla 75-146 (1975).

[10] And see s. 196.015, Fla. Stat., providing relevant factors in a determination by the property appraiser of intent to establish a permanent residence in this state:

"(1) Formal declarations of the applicant.
(2) Informal statements of the applicant.
(3) The place of employment of the applicant.
(4) The previous permanent residency by the applicant in a state other than Florida or in another country and the date non-Florida residency was terminated.
(5) The place where the applicant is registered to vote.
(6) The place of issuance of a driver's license to the applicant.
(7) The place of issuance of a license tag on any motor vehicle owned by the applicant.
(8) The address as listed on federal income tax returns filed by the applicant.
(9) The previous filing of Florida intangible tax returns by the applicant."

[11] See s. 196.015, Fla. Stat., and Ops. Att'y Gen. Fla 75-146 (1975), 74-115 (1974), 72-154 (1972), 69-37 (1969), 58-329 (1958).

[12] See Op. Att'y Gen. Fla. 71-228 (1971).

[13] See Op. Att'y Gen. Fla 70-154 (1970).

Author johnbsims3
Admin 

#7 - Posted: 6 Oct 2011 07:28 - Edited by: johnbsims3 
Objective Requirements to Establish "Separate Family Units"

Consistent with the Florida law, case law and Attorney General Opinion,
the Property Appraiser must make an objective evaluation of the surrounding
facts and circumstances. Accordingly, the County Property Appraiser may require a married couple to document ALL of the following, in order to establish they are "separate family units":

* Each person files separate federal tax returns indicating the «married, filing
separately" status.

* Each person maintains separate bank accounts (and has no intermingled or
joint bank accounts).

*Each person is registered to vote, registered his/her vehicle, and has his/her
driver's license at the respective, different home addresses.

* Each person pays his/her own property tax bill from the separate, individual bank accounts.

* Each person is the only person. listed on the utility bills (electric, phone, etc.) for the respective, different addresses.

Author johnbsims3
Admin 

#8 - Posted: 18 Oct 2011 14:42 
Here is a discussion on the new case opined by the 2nd DCA

http://propertytaxinflorida.com/2010/05/26/separat e-homestead-exemptions-for-married-couples/
2D094250_Wells_vs_H.pdfAttached file: Wells vs Haldeos
 

Author johnbsims3
Admin 

#9 - Posted: 17 Nov 2012 06:15 
Seperate Residences Family Units Case Notes
2D094250_Wells_vs_H.pdfAttached file: Seperate Residences Family Units Case Notes
 

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