jleann,
Yes there are! Your father still can claim the primary residence as his homestead, because it was not voluntarily abandoned (i.e. rented or he moved to a new residence). There are numerous cases on this specific issue.
The burden is on the objecting party to show that party claiming the exemption is not entitled to it. In re Sanders, 72 B.R. 124 (Bankr.M.D.Fla.1987). A party objecting to the exemption claimed under Florida law must prove, by preponderance of evidence, that the claimant is not entitled to the claimed exemption. Involuntary absence is not sufficient to support a finding of abandonment. Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982).
Under Florida law, homestead rights are construed in favor of exemption. Under Florida law, a natural person loses his constitutional homestead exemption only if one of the three specific and expressly stated exemptions is present, or if the person uses his homestead as instrument of fraud. While Florida's constitutional homestead exemption is designed for honest claimants, it is generally assumed that the claimant is honest unless and until the contrary is proven. Colwell v. Royal Intern. Trading Corp., 226 B.R. 714 (S.D. Fla, Miami Division). Once homestead status is acquired, it continues until the homestead is abandoned or alienated in a manner provided by law. A homeowner retains a homestead interest in his home, notwithstanding any criminal or dissolution judgment. Cain v. Cain, 549 So.2d 1161 (Fla.App. 4 Dist.,1989). Continued ownership of the residence and the record should reflect neither alienation of interest nor intent to establish a homestead elsewhere. If not, the evidence needs to get in the record ASAP. See Dean v. Heimbach, 409 So.2d 157, which is a controlling case.
When homestead status has been acquired, it continues until the homestead is abandoned, which is normally evidenced by establishment of domicile at some other place, or alienated in a manner provided by law. Under Florida law, the intent to establish homestead is evidenced by specific acts toward creating a permanent abode which are not contradicted by any subsequent behavior. Intent coupled with actual use are all that is required to make the written legal claim. Establishing homestead status under Florida law requires actual use and occupancy of property; however, continuous, uninterrupted presence is not required. M.O. Logue Sod Service, Inc. v. Logue, 422 So.2d 71 (Fla. 2d DCA 1982). Daily residence is not essential to create or maintain a "homestead", nor is it disrupted by temporary absence with the intent to return. Collins v. Collins, 150 Fla. 374, 7 So.2d 443. You do not have to occupy the premises 24 X 7.
Although an involuntary nature of absence from property claimed as homestead under Florida law is an important factor to consider, a homeowner sufficiently occupies the property to establish homestead status under Florida law if this is where he "hangs his hat", even though he spends the current bulk of his time living away from property and his involuntary absence from property is required or even to defend and serve time for a criminal or civil suit. Compliance with the "intention coupled with actual use" requirement is sufficient. The requirement regarding legal abandonment, which boils down to two issues, is voluntarily moving to a new residence and claiming it as homestead, and/or rental of the property for profit. A homestead has been "abandoned" when it is no longer a bona fide home and place of permanent abode. Law v. Law, 738 So.2d 522, 24 Fla. L. Weekly D1924. Temporary absence from a homestead will not deprive it of its homestead character, unless there is a design of permanent abandonment. Only permanent abandonment of a homestead deprives the property of its homestead character. Lanier v. Lanier, 95 Fla. 522, 116 So. 867.
As more than one court has indicated, the Florida Constitution grants "a liberal exemption" for homestead property. Englander v. Mills (In re Englander), 95 F.3d 1028, 1031 (11th Cir. 1996); In re McClain, 281 B.R. 769 (Bankr. M.D. Fla. 2002). In Florida, a homestead is established when there is "actual intent to live permanently in a place, coupled with actual use and occupancy." In re Brown, 165 B.R. 512, 514 (Bankr. M.D. Fla. 1994). Ultimately, all that is required to make the claim is that the property owner reside on the property and in good faith make the same his permanent home. Colwell, 226 B.R. at 719; see also Judd v. Schooley, 158 So.2d 514, 516 (Fla. 1963). Exceptions to the homestead exemption should be strictly construed in favor of claimants and against challengers. In re Ehnle, 124 B.R. 361, 363 (Bankr. M.D. Fla. 1991). However, on the issue of this particular inmates homestead, the Court seemingly has no choice but to conclude that the he has provided sufficient evidence of his residence in the property, and his "actual intent" to live there permanently prior to the upon completion of his sentence. One's homestead or domicile is a rather simple equation in the end: residence plus intent to remain. As mentioned, the exceptions to the homestead exemption are to be "strictly construed" in favor of its claimants, and the Court can only conclude on the evidence before it, or lack thereof, that the inmate has resided in the property and "in good faith" intends it to be his permanent home after his release.
Hope this helps,
FHS
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