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  • Writer's pictureVinicius Adam

Florida's Homestead Protection Laws: Safeguarding the Family Home

Updated: May 20, 2023



Introduction:


For many individuals and families, the family home represents more than just a physical structure; it is a place of comfort, security, and cherished memories. Recognizing the importance of preserving homes from potential creditors, Florida has robust homestead protection laws in place. This article provides an overview of Florida's homestead protection laws, exploring the benefits and provisions designed to safeguard the family home.


Florida's homestead protection laws have a rich history, dating back to the state's early days. They are some of the most protective homestead laws in the United States. The main purpose of these laws is to provide a safety net for homeowners, protecting them from losing their homes due to economic hardship, such as bankruptcy or the death of a spouse. They were enacted in part due to the financial instability and economic hardships that were prevalent in the 19th century, such as the Panic of 1837, and the desire to provide stability and security for families. The current Article X, Section IV, Homestead Exemptions, in Florida’s Constitution, was enacted in 1972.


The homestead protection laws in Florida are based on a few key principles:


Homestead protection is a legal concept that grants certain protections to a person's primary residence, known as the homestead, from being seized or forced to be sold to satisfy creditors' claims. Florida's homestead protection laws aim to provide a secure shelter for homeowners and their families during financial hardships or legal disputes. However, the protection only applies as of the date of the filing of the homestead declaration. This means that it does not protect against pre-existing liens that were attached before the property was designated as a homestead.


1. Protection from Creditors: One of the primary benefits of Florida's homestead protection is the exemption from forced sale. Florida's Constitution provides an unlimited exemption from creditors for the homestead property, regardless of its value. This means that as long as the property qualifies as a homestead, there is no cap on the value of the property that can be protected from creditors attempting to force the sale of the homestead property to satisfy debts or judgments. This protection extends to the homeowner's surviving spouse and minor children, ensuring their continued shelter. If a homeowner files for bankruptcy, the homestead protection laws prevent the forced sale of their primary residence by creditors. This protection is unlimited in terms of the value of the property, meaning that no matter how much a home is worth, it cannot be seized to pay off debts. This is one of the reasons why Florida's homestead laws are considered so strong.


2. Protection for Surviving Spouses and Children: Florida's homestead laws also provide protections for surviving spouses and minor children. As stated above, even if a person dies with significant debts, their home cannot be seized to pay off those debts if a spouse or minor children are living there. This protection also ensures that they can continue to reside in and benefit from the homestead property, even in the face of financial challenges.


3. Property Tax Benefits: Homesteaded properties in Florida may be eligible for property tax benefits, such as a reduction in assessed value or a cap on annual property tax increases. These benefits help homeowners maintain affordability and stability in their housing expenses.

a. Homestead Tax Exemption: The first $25,000 of the home's assessed value is exempt from all property taxes, and the next $25,000 is exempt from all taxes other than school district taxes. This means homeowners can potentially exempt up to $50,000 of their home's value from property taxation.

b. Save Our Homes Cap: This law caps annual increases in the assessed value of a homestead property at 3% or the rate of inflation, whichever is lower. This ensures that long-term homeowners are not taxed out of their homes due to rising property values.


4. The Three Exceptions: Subsection (a), of the Homestead Exemption provision in the Florida Constitutions states that “[t]here shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty . . .” (emphasis added). This creates three exceptions to the exemption from forced sale provision: (1) taxes and assessments on the homestead property; (2) mortgages for the purchase or refinance of the homestead property; and (3) mechanics’ liens for improvements on the homestead property. Note that all three of the exceptions are concerned with obligations undertaken that touch and concern the homestead property.


5. Restrictions on Transfer of the Homestead: In Florida, if a person is married or has minor children, they cannot sell or give away their homestead without the agreement of their spouse or a court order. This further strengthens the protection of the homestead. The requirement for consent of a spouse, however, does not create or recognize a property interest in such spouse, and the right to the homestead protection during the life of the other spouse is a marital interest as opposed to a property interest. Chames v. DeMayo, 972 So.2d 850 (Fla. 2007).


6. Personal Property: The Homestead Exemption also applies to “personal property to the value of one thousand dollars.” Art. X, § 4(a)(2), Fla. Const. This is personal property owned by one as property of the estate and does not need to be property for a specific purpose. Personal property that is exempt from forced sale is broadly defined. The Florida Courts have characterized cash, rugs, draperies, silverware, china, linens, furniture, and many other items as exempt property.


Fraud or Reprehensible Conduct:


The homestead protection guaranteed by the Florida Constitution should not be used to shield fraud or reprehensible conduct. The intent to hinder, delay or defraud creditors is not one of the three exceptions and generally speaking the motive for acquiring a homestead property is not a consideration as to whether the exemption will be upheld. However, it may not be used to shield fraudulent or reprehensible conduct and an equitable lien or constructive trust on homestead property may be granted to those who were defrauded by a homesteader. Such circumstances have been judicially determined to include a homestead property acquired through fraudulent means.


Bankruptcy:


While the homestead property is generally protected during bankruptcy proceedings, if the debtor does not claim homestead protection during these proceedings, the protection may be deemed surrendered to the bankruptcy trustee as if it had been abandoned. Osborne v. Dumoulin, 55 So.3d 577 (Fla. 2011).


Federal Civil Forfeiture Law:


It has been generally deemed that federal civil forfeiture statutes that authorize the forfeiture or real property and do not make an exception for property protected by state law, preempt Florida’s constitutional provisions exemption homestead properties from forced sales. U.S. v. Lot 5, Fox Grove, Alchua County, Fla., 23 F.3d 359 (11th Cir. 1994). Despite this preemption of federal law, the homestead property may be protected from the State of Florida’s civil and criminal forfeiture proceedings. Butterworth v. Caggiano, 605 So. 2d 56, 16 A.L.R.5th 1118 (Fla. 1992) (forfeiture was prohibited in an action in which the State of Florida sought to have the home of a bookmaker, who was convicted under Florida's RICO Act of bookmaking incidents at his personal residence, forfeited on the grounds that the property was used in the course of racketeering activity).


Provisions and Eligibility Criteria:


The provision in Art. X. § 4 is self-executing; where a person who acquires title to land

properly makes his or her home on it, the land is impressed with the character of a homestead, and no action of the legislature, or declaration or other act on the part of the owner, is required to make it the person's homestead. It is important to note that this is the protection against forced sale. In order to obtain the tax benefits of declaring a homestead, the owner must apply for the homestead exemption with the Property Appraiser’s Office in the County where the property lies.


1. Residency Requirement: To qualify for homestead protection, the homeowner must establish the property as their primary residence. They must intend to permanently reside on the property and use it as their primary place of residence.


2. Acreage Limitations: Homestead protection laws impose certain acreage limitations on the property. In urban areas, the homestead property cannot exceed half an acre, while in rural areas, it cannot exceed 160 acres.


3. Debt Type Limitations: While Florida's homestead protection laws offer significant safeguards, certain debts are exempt from the homestead protection, such as mortgages, property taxes, and mechanic's liens.


4. Transfers and Sale Restrictions: Florida imposes restrictions on transferring or selling the homestead property to preserve the protections. Any sale or transfer of the property may affect eligibility for homestead protection and proceeds from the sale may be subject to creditor claims. The transfer may affect the homestead protection because abandonment of the property by the owner is usually deemed a surrender of the homestead protection, as well.


However, Florida courts have recognized a concept known as the "proceeds of sale" doctrine, which suggests that if a person intends to reinvest the proceeds from the sale of a homestead into another homestead within a reasonable time, those proceeds may be protected from creditors during the interim period. The "reasonable time" isn't clearly defined and can be a complex issue, varying case by case based on specific circumstances. It's important to note that this is a somewhat grey area of the law, and court decisions may vary.


Conclusion:


Florida's homestead protection laws serve as a crucial safeguard, offering homeowners protection from forced sale and creditor claims, while preserving their primary residence as a place of stability and security. These laws, while beneficial for homeowners, have also drawn criticism. Some critics argue that they can be exploited by individuals who move to Florida and purchase expensive properties specifically to shield their assets from creditors. Despite these concerns, the protections remain in place, reflecting the priority placed on homeownership and family stability in the State's laws. By understanding the eligibility criteria, limitations, and benefits of homestead protection, homeowners can make informed decisions to protect their family home and maintain a strong foundation for their future.


Consulting with Legal Professionals:


Given the intricacies of Florida's homestead protection laws, seeking guidance from a qualified attorney specializing in real estate and asset protection is highly recommended. The legal experts at VAdam Law can provide personalized advice based on specific circumstances, ensure compliance with the requirements, and help maximize the benefits of homestead protection.


If you would like to learn more about VAdam Law and schedule a free consultation, visit our online scheduling portal or call 24 hours a day at (954) 451-0792.






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