I keep getting alot of questions for clarification of the rental of a homestead. I hope this helps...
Pursuant to Section 196.061, Florida Statutes, for property to lose homestead through rental, it must first be actually rented for two consecutive years; and second, the entire dwelling must be rented for both years.
In order to lose homestead due to rental activity, there must: (1) be an
actual rental; and (2) the entire dwelling must be rented for two consecutive years.
In sum, if an individual does not engage in rentals of their entire dwelling, and maintains the indicia for permanent residence, homestead cannot be revoked.
Because homestead IS a Constitutional right, any ambiguities in the right to homestead are to be resolved in favor of the property owner.
Moreover, any exceptions to the grant of homestead (e.g. through rental) are to be strictly construed.
Florida law defines a "rental" as the granting of exclusive possession
and dominion over the property to a tenant. By contrast, a license agreement provides an individual with a privilege to enter upon the property. Under a license agreement, possession and ingress and egress are reserved by the owner. This distinction came to light recently in the case of Turner v. Florida State Fair Authority, 974 So. 2d 470 (2d DCA 2008).
Prior to the adoption of Section 196.061, there were several Florida
cases interpreting whether rental would terminate homestead. For example, the Florida Supreme Court restored homestead to an individual who engaged in seasonal rentals. City of Jacksonville v. Bailey, 159 Fla. 11 (Fla. 1947).
Similarly, the Second District Court of Appeal ordered that homestead be
returned where the property owner rented their home for short periods of
time and maintained their possessions in the home. Poppel v. Padrick, 117
So. 2d 435 (Fla. 2d DCA 1960). In both cases, the respective courts focused on whether the property owners manifested an intent to return.
The intent to return in both cases was gleaned from the fact that the property owners left their possessions in the premises and the leases were for short-terms. In both cases, homestead was restored.
The purpose of Section 196.061 is to terminate homestead when an
individual rents out their "entire" dwelling, and does so for two consecutive
years. In so doing, the Legislature harmonized the rental restriction with the indicia set forth in Section 196.015 and the case law that pre-dated Section 196.061. In other words, if the "entire dwelling" is rented out, the property owner has manifested an intent not to consider the subject property its residence. It follows that an owner who engages in the rental of their entire dwelling would not likely satisfy the indicia for homestead.
For example, if the entire dwelling is rented out for long durations of time, an individual could not utilize the address for the purpose of voter or vehicular registration.
The Constitutional right to homestead is not divisible in a single family
home.
Section 196.031(5), Florida Statutes. That Section states:
The exemption provided in this section applies only to those parcels classified and assessed as owner-occupied residential property or only to the portion of property so classified and assessed.
By its terms, the foregoing Section initially refers to subdivided
parcels and then more generally in the second clause to a "portion of
property." Put simply, this Section applies where a property contains
multiple parcels such as a duplex where the owner resides in one unit and
rents another.
| http://www.floridahomesteadservices.com |
