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AGO 76-177 Abandonment - Rental - Temporary Absence

Author johnbsims3
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#1 - Posted: 17 Nov 2012 10:28 
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.

Florida State Attorney General Opinions Florida Homestead Services -- Florida Homestead Exemption Act MiniBB / Florida State Attorney General Opinions /
AGO 76-177 Abandonment - Rental - Temporary Absence
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