| |
Legal
issues, Filing Requirements and Declaration or Designation of Homestead
Explanation
[NOTE: Declaration or Designation of Homestead
forms obtained from the internet or created for other states other than
Florida are not or may not be legally sufficient for use in Florida.
Also, the Notice of Homestead in the Florida Statute is not legally
sufficient if there is not a sales contract pending. DO NOT rely on
them for property or equity protection in Florida!]
You can protect your home, its equity and your
real property against future financial disaster, and perhaps save alot
of money now!
Welcome to the most important
website for homeowners in America. We are here to tell you about
Homestead Declaration. It’s a simple legal document that will protect
your most valuable asset – YOUR HOME EQUITY - from liens, judgments and
creditors, and it has nothing to do with your county homestead property
tax exemption.
Statistics show that 2 out every
5 homeowners in America have, or will have, a lien or judgment placed
against their real property usually their homestead. Most homeowners in
America have absolutely no clue of how to protect their home and its
equity against liens or judgments before they happen, nor do they
realize that it will cost them alot of time and money to have the lien
or judgment made unenforceable (Note: Do not let ANYONE tell you it can
be 'removed', it can't, and if they do tell you that, run the other way
as fast as you can!) before a homeowner can sell or refinance their
home. Our only goal at Florida Homestead Services is to inform every
homeowner in America the importance of having a Homestead Declaration
filed BEFORE any judgment or lien is filed against their home. A
legally sufficient homestead declaration claim made by you does
not subject you home equity to liens, attachments, judgments, or
creditors, and the process is protected by law in almost every state in
America.
With the exception of 4 states that have no homestead laws, the rest of
the United States have laws to protect the homestead for the benefit of
its citizens. No matter what state you may reside in, all homeowners
should have this protection of their home. We have forms available for
almost every state; even for those few states that provide the
document.
Our FAQ
page will answer most of your questions about
Homestead Declaration and help you understand the importance of this
legal document. You can very well ignore this extremely powerful
protection of your home and its equity, and you may never require it,
but why gamble with your home's equity when it is inexpensive, simple,
and requires only a few minutes of your time to obtain?
Synopsis
Homestead for
tax purposes and homestead for purposes of creditor protection and
exemption from forced sale, although related because both are part of
the overall scheme of providing for preservation of the family
dwelling, are not synonymous regardless of popular opinion. Florida has two distinct laws regarding a
homestead...The exemption of a homestead from forced sale and from
having a judgment or execution being a lien thereon differs from
homestead exemption as defined for tax purposes. This exemption is
governed by Article X, Section 4, Constitution of the State of Florida
(1968), which exempts a homestead from forced sale and provides that no
judgment or execution shall be a lien thereon. Clearly, this is a
different thing than homestead exemption, as defined for tax purposes.
[FN1] Don't let anyone tell you that there is nothing you need to
do to protect your homestead from creditors. It is simply not true.
The Florida 'home protection' exemption statute allows
homeowners to 'designate' and 'set apart' their homesteads (primary
residence) to protect them from a forced sale or the taking of equity
in order to satisfy creditors. The law also protects the equity in a
homestead property including the proceeds from a sale or re-finance.
The local county property tax appraisal office is unable to answer your
questions concerning 'designation of homestead' for protection from
forced sale. Hopefully we at Florida Homestead Services can answer each
and every one of your questions...Check out our Frequently Asked
Questions HERE.
Homestead exemption in Florida
Florida's homestead exemption provisions are among the most protective
in the United States, and refer to two similar, but unrelated
provisions of the Florida Constitution. The creditor protection clause
of Article X gives no limit to the value of property that can be
protected from creditors. The tax exemption clause of Article VI
renders property tax-free certain dollar amounts of the value of the
homestead, as well as up to $1,000 of personal property. Both
provisions apply automatically upon the establishment of a primary
residence in Florida, but to reap the tax assessment benefits it must
be claimed by a filing with the state. It can be lost if the homeowner
abandons use of the homestead as a primary residence.
Scope of the protection
Florida's creditor protection homestead provision is one of the
broadest in the United States. The value of the property that can be
protected is unlimited, so long as the property occupies no more than ½
acre (2,000 m²) within a municipality, or 160 acres (650,000 m²)
outside of a municipality. The provision is written into the Florida
Constitution, Article X, section 4, so it can not be removed without a
constitutional amendment.
Because of the scope of the protection afforded, persons from other
states with heavy debts or large court judgments against them have been
known to purchase expensive estates in Florida, a famous example being
O.J. Simpson and Scott Sullivan.
One event that can drastically affect the value of a homestead is
municipal incorporation. If a 160 acre (650,000 m²) non-municipal
homestead is on land that is later incorporated into a municipality,
the homestead will be grandfathered in and remain protected for the
owner and his heirs. However, for any future purchasers of all or part
of the property, the protected land will drop to the ½ acre (2,000 m²)
allowed within a municipality.
Protection from creditors
The homestead exemption offers virtually absolute protection from
forced sale to meet the demands of creditors, except under three
special circumstances listed below.
One unique feature of Florida's homestead exemption is that it attaches
to proceeds from the sale of a home, if the homeowner intends to use
those proceeds to establish a new Florida homestead within a reasonable
time. Therefore, if the owner of a $1,000,000 home sells that home and
puts the money in a bank account, that money is still protected by the
homestead exemption, so long as the homeowner has a bona fide intent to
use it to purchase another home in Florida entitled to the exemption.
This protection is lost if the funds are commingled with other funds
not designated for such a purchase. Also, the protection only extends
to the amount the owner intends to invest in a new homestead - if the
owner of a $1,000,000 home sells that home, and makes clear his intent
to purchase a $750,000 home, the remaining $250,000 will lose its
protection.
Absent notice that we are in need of
this great protection against forced sale of our homes, few of us are
likely to travel down to the courthouse and make a homestead
declaration or designation just in case it might prove handy some day...but this is
exactly what every homeowner in Florida should do! This is exactly what
one prominent Florida court has ruled...
Exceptions for certain creditors
Three types of creditors can still force the sale of a homestead to
collect debts owed to them. These are:
The State of Florida and its counties or municipalities, to collect
past due property taxes;
Parties to whom the property was specifically pledged as credit for a
mortgage;
Mechanics who are owed money for work performed in repairing or
improving the property.
Because the homestead exemption is state law, it can also be
over-ridden by the United States federal government, to satisfy federal
income tax debts for example, although this has rarely occurred.
Reduction of property tax
Florida property tax homestead exemption reduces the value of a home
for assessment of property taxes by $25,000, so a home that was
actually worth $100,000 would be taxed as though it was worth only
$75,000. Florida counties are permitted to tax property for up to 3% of
its total value, so a $100,000 home could be taxed $3,000/yr, but the
homestead exemption would reduce that burden to $2,250/yr.
Additionally, and more importantly, the Florida homestead exemption
caps the rate at which property taxes may be increased. Though millage
rates may be changed, the assessed value a house with a homestead
exemption can be increased by is fixed. This is the result of the "Save
Our Homes" Amendment to the Florida Constitution which was passed by
voters in 1992, and went into effect in 1995. The amendment caps the
increase of the assessed value of a home with a homestead exemption to
the lesser of 3% or the rate of inflation. This means that if an owner
had a homestead exemption on a home valued at $100,000 in 1995, and the
exemption was still valid in 2005, the most the home could be assessed
at is $126,000. For comparison, records of the Florida Association of
Realtors show the median price of a single family home during the same
time increasing 175% from $89,900 in 1995, to $247,000 in 2005.
Homestead exemptions are only available on an individual's primary
home. Therefore, this exemption does not apply to businesses, rental
property, second homes, or homes with owners that do not claim Florida
as their primary residence. Further, the benefits from the "Save Our
Homes" amendment do not run with the homesteader or the house. A
homesteader that moves will pay taxes on the full market value of the
new house for their first year. Acquiring a house that had a homestead
exemption does not entitle the buyer to retain its low tax rate.
Supporters of the "Save Our Homes" Amendment contend that it allows
long term residents with a fixed income to be able to afford to stay in
their homes without being driven out by tax increases as their property
value increases. Detractors argue that it creates an unfair system of
taxation in which first time home buyers, new residents, seasonal
residents, and businesses are burdened with more than their share of
taxes while homesteaders are trapped in their own homes, often unable
to move without doubling their tax rate.
Protection to surviving spouse or minor child
The provision also protects a spouse in several ways. First, it
restrains the homeowner from conveying the property without the
approval of their spouse, even if the property is entirely in the name
of one spouse, or was purchased entirely from funds of one spouse. The
provision also prohibits a spouse from devising the property by will,
if the homeowner is survived by a spouse or a minor child. A spouse may
waive these rights with respect to the will, but a minor child is not
competent to do so. Finally, the homestead exemption automatically
attaches to the surviving spouse, so the property will never be exposed
to the creditors of either spouse because of the death of the other.
A 'Designation or Declaration of Homestead'
consists of a legal document which 'sets apart' your homestead
and can protect your home and real property before any calamity occurs
or in times of economic hardship or from most liens, judgments and
foreclosure. It has nothing to do with the process of filing an
application for local, city or state government ad valorem (homestead
property tax exemption) property tax breaks . . . rather, it's a
complex and detailed legal claim that can prevent the attachment of
your land and dwelling, or its equity, by creditors, judgments, liens
or lawsuits, but you must make the claim under the statutory legal
requirements of the law before the judgment, lien or levy in order to
take full advantage of the law and make it more effective. You can also
assert the legal claim to 'set apart' or designate your real property
after a judgment, lien or levy, but the process is lengthy, costly and
more difficult and will ensue during or after a mandatory court battle,
which can cost thousands in attorney's fees and court costs.
The Florida property tax statutes offers
homeowners a way to apply for homestead 'tax' exemptions to reduce
local real estate (ad valorem, which means according to value) property
taxes. Application is made to the local county property appraiser, and
there is no fee for filing. This is the homestead "tax" exemption
explained in their information and is not the same as the homestead
exemption from forced sale or for payment of debts as there are
separate and distinct laws dealing with both issues.
Florida's homestead exemption serves the compelling public
purpose of promoting stability and welfare of the state and its
citizens by securing to the householder(s) a home, so that householder
may live beyond the reach of financial misfortune. Under Florida
law, homestead
exemption may not be used to shield property from: (1) payment of
property taxes and assessments thereon; (2) obligations contracted for
the purchase, improvement or repair thereof (Secured Mortgage or a
Contractor's lien); or (3) obligations contracted for house, field or
other labor or services performed on realty (Mechanic's or Contractor's
lien agreed to under the contract). The right to contract is
expressly guaranteed by the Florida Constitution and the right to
contract and to use one’s property as one wills are fundamental rights
guaranteed by the constitution of the United States and the
constitution of the State of Florida.
The exemption accorded by this provision has
been part of the Florida Constitution for over a hundred years. In
1884, the Florida Supreme Court set forth the policy considerations
underlying this provision: 'True, a man may sell his personal property,
or may pledge or mortgage it, but in that case the property sold or
pledged is designated and identified and a special interest is created
in favor of a creditor in the particular article pledged or mortgaged,
and in no State is this power of the owner of personalty denied. The
object of exemption laws is to protect people of limited means and
their families in the enjoyment of so much property as may be necessary
to prevent absolute pauperism and want, and against the consequence of
ill advised promises which their lack of judgment and discretion may
have led them to make, or which they may have been induced to enter
into by the persuasions of others.'
The courts confirm that the Florida Constitution protects the homestead
against every type of claim and judgment except those specifically
mentioned in the constitutional provision itself, and that other than
for the purposes stated in this provision, cannot be waived, observing
that protection of homestead from alienation cannot be waived by
contract or otherwise. In honoring an agreement or a contract made
whereby a party “knowingly, voluntarily and intelligently” waives his
or her constitutional right, a waiver of this type signed by a party is
contrary to the policy of this State.
Florida's concern is well-taken and is
supported by the fact that one hundred years after the pronouncement in
court precedent, the people of the State of Florida, in a general
election held in November 1984, amended their constitution to
dramatically expand the class of persons who could take advantage of
Florida’s homestead law by substituting the qualifying phrase “a
natural person” for the “head of a family” qualifier that had existed
in every version of the constitutional provision from its first
adoption in 1868.
Since that time, any resident of the state, whether single, divorced,
or widowed, has had the legal capacity to assert the shield of the
exemption of homestead property from a forced sale without regard to
familial standing or other status or station in life. Thereafter, the
decisions from our Supreme Court reflect, sometimes to the Court’s
personal discomfort, that the benefit of the constitutional shield
against forced sales of one’s homestead property has been
transmographied from one that exists solely for the protection of the
family home to an entitlement available to all comers to the great
State of Florida. The people of this state in 1984 also expanded the
breadth of the availability of the shield of homestead to all persons
who hold an interest in homestead property without regard to criminal
or immoral conduct.
Under Florida law, the intent to
establish a homestead claim is evidenced by a debtor's specific acts
toward creating a permanent abode and legally declaring such abode as a
homestead, which are not contradicted by debtor's subsequent behavior.
Thus under Florida law, homestead is established when there is an
actual intention to live permanently in a home place, coupled with
actual use and occupancy of the home place, along with a written
legally sufficient claim. All that is required by law to establish a
homestead written legal claim, is that the claimant resides on property
and in good faith makes the same his permanent home. No other
requirements need to be met. When there is an actual intention to live
permanently in a place, coupled with actual use and occupancy, the
homestead claim can be enforced but must be made in writing to be
legally sufficient and in order to withstand legal scrutiny should the
need arise. Actual or continuous residence is not required for
homestead exemption when a declaration of homestead has been filed.
The 'Homestead Exemption' or 'Declaration' for
protection of real property is not as 'automatic' as most people
assume. The saying "They can't take your house in Florida" is not true
unless you claim it as your homestead separate and apart from the
twenty-five thousand dollar ad valorem property tax exemption, as
separate laws were enacted for each specific purpose. A written legal claim
of a homestead should be asserted with respect to land that is occupied
under the requirements contemplated by the state law or statute,
together with buildings and other improvements, that are essential or
convenient to the use or enjoyment of the land as a homestead.
If a constitution, such as
Florida's, provides that a homestead shall be exempt from execution,
the provision is self-executing. However, certain homestead provisions
have been held by courts as not to be self-executing, as where the
constitution requires the legislature to enact a statute to implement
the provision, or where the constitutional homestead exemption cannot
be effective without the passage of a law determining the amount, or
the requirements to invoke the rights of the exemption or protections
thereunder. This statement applies to Florida's homestead exemption for
the protection of a home and its equity. While in some states the
operation of homestead protection is automatic and a formal declaration
that certain land has been selected as a homestead is not a necessary
element in the establishment of the homestead right under some legal
provisions of the law, the homestead exemption laws in Florida require
a written designation of homestead property or the filing of a
declaration to make the exemption operative. Illustration: A
constitutional homestead protection provision is not self-executing
where it imposes upon the state legislature the duty of setting up some
statutory procedure by which the owner of real estate may protect the
property from sale or execution of a portion of his property as his
homestead. The procedure is set out in Florida's statutes.
The
Florida Constitution on homestead 'asset protection' or a 'declaration
of homestead' imposes upon the state legislature a duty of setting up
some statutory procedure by which the owner of real estate may protect
the property from sale or execution of all, or a portion of his
property, as his legal homestead. The written legally sufficient claim
must be made per the statute or the homestead protection may be
ineffective against judgment creditors. The
legislation requiring the written claim to be made was enacted by the
Florida Legislature in order to prescribe a practice to be used for the
state constitution's self-executing provision's enforcement and to
provide a convenient remedy for the protection of the property rights
secured by the constitution or the determination thereof, and to place
reasonable safeguards around the exercise of the right. Even
if a constitutional provision states that it is self-executing, some
legislative action is usually necessary to effectuate its purposes, but
legislative authority to provide the method of exercising a
constitutional power exists only where the constitutional provisions
themselves do not provide the manner, means, and methods for executing
the powers therein conferred, such as in the state of Florida.
Homestead
rights do not exist under common law, but they have been enacted in at
least 27 states: Alabama, Arizona, Arkansas,
California, Florida, Georgia, Idaho, Illinois, Kansas,
Louisiana, Michigan, Minnesota, Mississippi, Missouri,
Montana, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, South Dakota, Texas, Vermont,
Washington, West Virginia, Wisconsin, and Wyoming.
If you own, and live on property in any of these states, you should
definitely take the time to claim your real property and file this
important legal claim. The fee for doing so is very nominal, and the
forms and complete services for the State of Florida are provided
exclusively and only by Florida Homestead Services, LLC. No other
independent service provider in the State of Florida provides the
unique services that we do.
Though they vary from one state to another,
homestead statutes are similar in their intent. They are designed to
preserve family homes which might otherwise be taken in times of
monetary misfortune, loss of income or upon the death of the head of
the household and to prevent citizens from becoming a financial burden
on the public and of the state. In general, this protection is
available only if the declaration of homestead claim is filed in
advance of such a catastrophe. Of course, a legal judgment resulting
from business losses, auto accidents, or suddenly inherited debts could
wipe out a family's savings and assets, but with the safeguards
provided by the homestead statutes, their house and land and their
income would be fully protected up to the amount of exemption allowed
by their state but only if the claim is legally asserted in writing.
Say, for example, that your state has a
homestead exemption law, and your creditors, a lawyer, an ex-spouse, a
creditor of any type, code enforcement or a court judgment under
execution are demanding money from you. If your property is worth money
or if you have any equity in your property, they can't attach or force
the sale of your home as payment for the debt as long as you make a
prior declaration of homestead claim. On the other hand, if you owe
money and your home is worth more than what you owe, your creditors
cannot get a court order that forces you to sell, but again, only if
you have claimed your legal protection by designating your real
property and 'setting it apart' in writing in order to protect it. This
is where Florida Homestead Services comes into play. Even then, you
still have some protection, since after the sale you will be covered by
your homestead declaration if you have filed it. As a general rule, a
person can file a declaration of homestead at any time before the date
of a forced sale, and such filing will protect the property from forced
sale. A declaration of homestead may be filed during the pendency of
litigation at any time before the judgment has become a lien on
property; if it is filed after the rendition of the judgment, it will
defeat an existing attachment lien; if it is filed after levy of
execution and there is no valid and subsisting judgment lien, the
property is not subject to execution sale.
If there is a lien or judgment against a
homeowner, Florida law allows the sale or re-finance of the real
property free and clear without any encumbrance, but after the
declaration claim and notice to the creditor(s) is made. Please contact
us on this issue.
There must be strict compliance with the
procedural legal requirements for 'setting apart' and perfecting the
homestead protection and, under some provisions, there cannot be a
homestead right in any specific property until a declaration and
selection of a homestead has been made, again evidenced in writing, and
recorded in accordance with the legal requirements. Where the law
simply says that the property, when selected, shall be exempt from
forced sale, the conclusion is that after the selection has been made
and filed for record, a levy upon or sale of the homestead property
cannot be legally made unless the demand of the creditor is within the
excepted classes of debts (i.e., secured mortgage, property tax lien or
mechanic's/contractor's lien). Under the statute, a homestead claimant,
in order to be entitled to the protection of the law, must execute a
formal declaration of homestead stating the legal requirements of the
declarant or his or her spouse and file it in the legally prescribed
manner. When a declaration of homestead has been filed, such
declaration is prima facie evidence of the validity of the facts
therein stated. A declaration of homestead may, under some statutes, be
made by the owner and/or by his spouse. We recommend both parties in a
marriage file the claim jointly so as to protect the property from
creditors of either spouse. Title to the claimed homestead may be
held by the entireties, jointly, in trust, or in common with others,
and the exemption may be apportioned among such of the owners as shall
reside thereon, as their respective interests shall appear. An
equity interest is all that is required to make the claim, coupled with
actual use of the property.
Furthermore, some kinds of debts must be
completely honored with or without a homestead declaration. If you have
put your property up as collateral on a secured loan, for example a
mortgage, the homestead asset protection exemption or declaration does
not apply. Other debts not covered include debts for property taxes and
construction or contractual-mechanics liens, or, if you fail to pay
someone you've hired under a contract to make improvements on your
house or land, they can place a lien on your property and have it
forcefully sold in order to collect the money. All other liens do not
count against properly homesteaded property, but you must file your
claim through us, in writing to 'designate' or 'set apart' the property
before hand. You can also file for protection after a lawsuit
commences, but again the process may be more costly and difficult
to defend. Again, the homestead exemption for ad valorem property tax
'breaks' do not afford the same legal protection and the protection is
not automatic.
Fortunately, homestead laws are usually, in legal
terms, 'liberally construed' which means that they always should work
in favor of the homeowner. An apartment (if you own it or have an
equity interest in it), a condo, a mansion, a cabin, a boat, a motor
home, a villa by the sea, or a tent can qualify as a homestead provided
the dwelling is the 'bona fide primary residence of the claimant'. This
simply means that if you intend to use the property as a homestead and
actually use it, you can make the 'declaration of homestead claim' and
protect the property from creditors, liens and judgments. If you
haven't built a house yet, you might still be able to claim a
'homestead' your future home site. In one case, a 160-acre parcel was
judged to be a homestead because the owner had shown intent to live
there to the court by building and drilling two wells and planting
fruit trees. Intention to live on the property as a primary residence
is the key. Another landowner was camping out on the property to meet
the residency requirements. A family is allowed only one homestead
which should be considered the primary residence, and must show good
faith in their claim. Summer vacation cabins, for example, on which
declarations have been filed and accepted, have been taken away for
debt payment, but there are legal loopholes in order to be able to
claim a second property in Florida. Contact us for
more details.
Outbuildings and land that are used by the
family for enjoyment or livelihood are generally considered part of the
homestead claim, but adjacent lots or parcels next to a home that are
held for idle investment purposes might not qualify, unless they're
gardened, logged, or farmed.
Generally speaking, most states homestead
exemptions usually apply only to married couples and their families. In
Florida, as previously mentioned, any single or 'natural person' can
claim their real property, or home, as a homestead to protect it. If
you have any equity interest in a property, you can claim it even if
there are multiple owners. Florida also has a 'head-of-household' wage
or income exemption that protects income, provided one person supports
another dependent. The dependent can be anyone provided the 'head of
family' supports them with fifty percent or more of the head of
family's income. This exemption protects wages and income should they
attempt to be garnished or attached. Wages less than $500 per week are
exempt from garnishment, and garnishment of wages above $500 per week
must be agreed to in writing.
Also, should one spouse die, the survivor and
any children are protected under the exemption until the survivor dies
and the youngest child is of age. And naturally, the homestead asset
protection exemption terminates if you sell the property or rent the
entire property (not a portion rented out if you still reside there) to
another which constitutes legal 'abandonment'. The exemption does not
terminate on the homeowners demise, instead the protection passes to
his or her heirs. Trusts may be very useful in this situation, but the
trust and deed must contain specific language in order to claim the
exemption. Contact us on this issue. Claims can be filed on successive
dwelling places, but only on one site at a time.
Some states such as Alabama, Arkansas,
California, Florida, Georgia, Iowa, Louisiana, Minnesota, Mississippi,
Missouri, Oklahoma, South Dakota, Texas, West Virginia, and Wyoming
also permit a property tax credit (for ad valorem taxes) for homestead
property. In these states owners are allowed to deduct some set amount
from their yearly property tax assessments. In Florida the amount is
$25,000 in reduction from the county property tax appraiser's amount.
As a general rule, a person can file a
declaration of homestead at any time before the date of a forced sale
or creditor claim-judgment, and such filing will protect the property
from sale. Once the declaration of homestead has been filed, such
declaration constitutes prima facie evidence of the validity of the
facts stated therein. A declaration of homestead may be filed during
the pendency of litigation at any time before the judgment has become a
lien on property. If the declaration is filed after the rendition of
the judgment, it may defeat an existing attachment lien. If it is filed
after levy of execution and there is no valid and subsisting judgment
lien, the property is not subject to execution sale except on
proceedings to reach the excess in value over the homestead exemption,
which is unlimited in Florida.
In other states other than Florida, the protections provided by
homestead exemption asset protection law provisions may operate
automatically, and thus there may be no need to make a formal written
declaration that certain land has been selected as a homestead in order
to invoke the exemption. This practice is not recommended and every
homeowner should make a legal written claim immediately or upon
purchase. The homestead exemption claim can be made upon occupancy and
use of real property as a home by the owner or owner's family and also
anytime upon the written claim. In a few jurisdictions, there are
provisions both for a declared homestead and an automatic exemption,
with each provision conferring different rights on the homesteader,
without overlap between those rights.
In jurisdictions such as Florida where the homestead exemption
provision requires the filing of a formal written and legally
sufficient declaration of homestead property in order to set it apart,
it must be filed of record in the prescribed manner provided by law. In
order to claim the homestead exemption, the claimant must show that
there has been compliance with the provisions of the statute, and the
declaration of homestead must have been executed and filed exactly as
therein provided, under oath, and it must be complete and legally
sufficient or it may be easily defeated by a creditor or legal
adversary. A declaration of homestead which omits any of the statutory
legal requirements and language is fatally defective and confers no
exemption or protection rights on the homeowner or
declarants. There are about twelve to fifteen items that must be
included in the written claim to make it legally sufficient and not
vulnerable to attack. This legal sufficiency is very important and is
crucial to any subsequent defense and protection of homestead real
property and equity in that property.
A declaration of homestead ordinarily requires a statement that the
person making it is currently residing on the premises at the time of
filing such declaration, and the absence of the residency statement may
well render the declaration ineffectual. For example, one court held
that a homestead declaration which failed to state that the declarants
were residents of the state at the time the declaration was made, as
required by statute, was invalid. In another case, the court held that
a homestead declaration was invalid because the claimant vacated the
premises he selected as a homestead and permanently moved to another
state before the declaration was filed with the clerk of court even
though the claimant was in full compliance with the residence
requirements of the statute when he signed the declaration. On the
other hand, a residency statement may be excused where the person is
allowed to make the declaration while not a resident, as where the wife
is allowed to make a declaration but she is absent from the premises
because of the wrongful acts of her husband, or vice-versa. A homestead
claimed by a husband on a home jointly owned with his wife is valid
even though the wife has a separate interest in the property and does
not join in executing the declaration, where the homestead was filed
while the husband and wife occupied the home, in that the community or
equity interest was sufficient to support the homestead claim and the
wife's signature was not necessary to validate it.
If a debtor does not select or designate exempt property in
writing prior to a levy, the levying officer is not bound to make the
exemption for the debtor or homeowner, but may seize all the real
property and its equity. However, if the property is claimed as exempt,
the officer should make an attempt to see that the exemptions are ‘set
apart’ or ‘set out’ via the declaration claim. *** Failure to
set apart the property or designate and claim it as exempt under levy
constitutes a waiver of that exemption. Also, creditors are presumed to
know the law and its provisions as to homestead exemptions, and have it
within their power to protect themselves by taking such steps as will
assure them against loss.*** A declaration of homestead which
completely omits any of the statutory requirements is fatally defective
and confers no exemption rights on the declarants.
The homestead must then be selected or set apart and claimed
by the homestead claimant by making, signing, and acknowledging a
declaration of homestead in which the declaration must, before the time
stated in the notice of sale on execution or on other judicial sale as
the time of sale of premises in which the homestead is claimed, be
delivered to and served upon the sheriff or other officer conducting
the sale or recorded with the county recorder. If no such claim is
filed or served as provided by law, title shall pass to the purchaser
at such sale free and clear of all homestead rights. The statutes must
be read together and the most reasonable construction is that the
homestead is immune from judgment, lien, execution or forced sale,
providing a formal declaration of the existing exemption is made prior
to the time set for sale or execution.
Necessity of a 'declaration of homestead'
The homestead exemption provisions of a number
of states, including Florida, require a homestead claimant to make a
legally sufficient 'designation' or 'declaration' of the homestead
property before the exemption from creditor claims take effect. Under
the provisions of law requiring the selection or designation of the
homestead property, there cannot be a homestead right in any specific
property until a selection of a homestead has been made, evidenced in
writing, and recorded in accordance with certain stringent and specific
legal requirements. Ordinarily, however, no selection need be made
until there is an execution levied against the homestead claimant's
property but it is not recommended to wait until this point for many
reasons. Increased costs and time to defend the claim is one of the
many reasons not to wait, plus a judgment lien may take priority if
filed before the claim depending on the case and circumstances. Mindful of the special affection and
protection Florida courts have traditionally bestowed on the homestead,
the proper condition of a homesteader who has filed the required
affidavit should be one of repose and security in the home, a refuge
from the stresses and strains of misfortune. The already
enormous costs of defending a claim increase exponentially and there is
no reason to delay protection of your most valued asset, your home and
its equity.
Should You File
a Homestead Declaration?
The filing of a
Homestead Declaration on your residence is one of the least expensive
forms of personal liability protection. The equity in your home can be protected
with a properly recorded Homestead Declaration. The main purpose of a
homestead exemption is to protect your equity. We strongly suggest
taking precautionary measures to protect your home and its equity.
Once properly recorded, the homeowner's exemption is permanent until he
moves to another homestead. The homestead exemption privilege is
enacted into the law by the state legislature to give the homeowner
certain valuable equity protection rights. The following applies
specifically to the state of Florida, but is typical of most states.
You should check with the local courthouse, or your legal counsel.
The filing
of a declared homestead does indeed enormously add to the homestead protection that the law provides to all
homeowners. While the typical homeowner need not file a declared
homestead to enjoy basic homestead tax exemption, homeowners who may be
or are in financial trouble, or who expect to be in financial trouble,
probably should file
a homestead declaration, just to be on the safe side. Anything can
happen at a moments notice and you'd already be protected if you have
us file your declaration of homestead.
The following are
some of the reasons that a homeowner who is or expects to be in
financial trouble should file a declared homestead and not rely on
the homestead tax exemption:
• The owner who
files a declared homestead can choose which of several different
residences will be protected.
• The
protection that is provided by a declared homestead will continue to apply to that residence even if
the owner becomes deceased.
It will not apply to rental properties. If a declared homestead has not been recorded, the
homestead protection may be lost if the owner moves, rents or becomes
deceased.
• The
protection that is provided by a declared homestead will apply to the proceeds
of a voluntary sale. If no declared homestead has
been recorded, the protection of the owner’s equity in a home may be
lost in the event of a voluntary or forced sale, or re-finance of the
home. (This means that the proceeds of the voluntary, re-finance or
forced sale of the home will go to the judgment creditor or creditors
rather than the owner).
• If a declared homestead has been recorded, the law is clear that the proceeds of sale can
be used to purchase another house as a homestead or be used for living
expenses until another purchase.
• Only if a declared homestead has been recorded will the proceeds of a voluntary sale assuredly
be protected after they are used to purchase another house; only then
will the protection given to the first house be carried over to the
second in regards to purchase funds.
• If a declared homestead has been recorded, the law is clear that the property cannot be
forcefully sold to pay any debt, judgment, levy or lien (if not a
mortgage, property tax or mechanic’s lien), and can be sold or
contracted against within 45 days after filing the declaration and up
to 180 days afterwards without any encumbrance or defective title.
• If a declared homestead has been recorded, the law is clear that the home is fully
protected unless abandoned.
Neither the
homestead tax exemption nor the declared homestead will protect a
homeowner against the loss of his or her home to a secured creditor --
such as the lender who has financed the original purchase, or a lender
who extended a second mortgage loan, or to a contractor, subcontractor
or laborer who has filed a valid claim of mechanic's lien for
improvements to the homestead or to a property tax lien or assessment.
The protections of both the declared and tax homesteads, however,
extend to most other kinds of creditors and judgment liens.
Homeowners who
are in financial trouble or those who expect that they may encounter
financial trouble should immediately contact us for the filing of a
homestead declaration.
CURRENT HOMESTEAD
EXEMPTION AMOUNTS
Equity Protected in Amounts up to:
Husband and Wife (filing joint declaration) Unlimited
Either the Wife or Husband Unlimited
Single Person that Qualifies as Head of Household Unlimited
Single Person (over age 65) Unlimited
Single Person (under age 65) Unlimited
In order to qualify, the homeowner(s) must intend live on the property
that is to be homesteaded coupled with actual use. The recording
process, when complete, will give the homeowner-added protection toward
the equity, which has built up in the home over recent years.
OTHER BENEFITS OF HOMESTEAD DECLARATION &
ELECTION
1. You may file for a homestead exemption if your home is paid for, or
if you are still making payments (i.e., 1st, 2nd, or any number of
trust deeds or mortgages).
2. A homestead will not prevent you from selling your home nor will it
prevent you from borrowing money on your home.
3. If you sell your home, it automatically removes the Homestead
Declaration.
4. If you sell your property after you homestead it, the exempted
amount of money you receive from the sale of the property is protected
if there is a judgment against you. You have time in which to purchase
another residence and file a new Homestead Declaration on it.
5. A properly filed homestead protects your equity in a home even if
you move out of the home and you continue to own it.
6. A homestead gives protection to a regular home, duplex, condominium,
cooperative apartment or planned unit development.
EXCLUSIONS
The Homestead Law will not protect you against material/mechanics liens
(work done by contractors to improve the real property), property taxes
or secured liens such as a mortgage. Always be careful when you are
asked to put your home up as security for a loan or installment
contract or if there is a waiver provision.
HOW DO I FILE A HOMESTEAD DECLARATION?
Simply contact Florida Homestead Services at 954-252-9111 or
e-mail us at myhomestead@bellsouth.net
Be careful of SCAMMERS
on the internet who boast their products for a small price! They are
only there to take your hard earned money, they do not to support their
product, and they do not have the same outstanding services and clients
with over 15 years of experience and satisfaction like we do!
Why Were Regulations Initiated,
Drafted and Adopted by Florida Homestead Services,
LLC?
Rules and
Regulations were created and adopted by us (and have subsequently been
adopted for the State of California) because some individuals providing
homestead services were misrepresenting the need for, or the character
of our services. A common misrepresentation is that a recorded
declaration of homestead protects against enforcement measures by any
and all creditors. In fact, filing
a homestead declaration does not protect against creditors whose claims
are secured by a mortgage on the property, or against businesses that
have a ‘contractor’s’ lien on the property as a result of providing
services or improvements, or for non-payment of property taxes and
assessments. Also, some unscrupulous individuals conceal the existence
of the legal requirements of the homestead asset and equity protection,
stating that it is automatic, in order to sell other legal services to
those who do not need it. Read these regulations.
###
These are many good reasons why it is crucial to
utilize our services, as our approved, registered and copyrighted
declaration forms for the State of Florida are deemed and proven to be
legally sufficient and cannot be denied, rebutted or attacked. Forms
are not available from the state or the county. Also, do not attempt to
utilize other states' generic and 'cookie cutter' forms, as they are
not sufficient as a matter of law, for the State of Florida, and
could easily render your designation of homestead claim totally invalid
and legally insufficient in court, ultimately leaving you with a legal
mess to untangle at great expense and the possible loss of your home
and its equity. We handle the entire process from start to finish
at no extra costs to you. A flat fee is all we charge, and it is
VERY reasonable!
If you're among those folks lucky enough to live
in a state that recognizes the Homestead Exemption, like Florida, you'd
be wise to get in touch with us right away for complete information
about our services and make the claim of homestead now before any legal
calamity ensues. Allowing Florida Homestead Services to help you
protect your real property and family home is well worth the few
dollars and the little time it requires to protect your home, property
and your equity. It's a simple step that could save you lot's of money
... and it will definitely save your home, equity and income from
future creditors, judgments, levy, liens and lawsuits!
We at Florida
homestead services believe that every homeowner should make the
declaration of homestead claim immediately or upon closing or upon
purchasing a new home. We can help make your declaration legally
sufficient for a minimal fee. We are
also a referral service for attorney's who specialize in asset
protection and estate planning. If you need help, contact us and we
will help you to find the best of the best. Consider it the
most inexpensive protection for your real property and its equity. Contact us and claim your
homestead today!
FLORIDA
HOMESTEAD SERVICES, LLC
CONTACT US
Bonded
Member-National Notary Association
FN1 See Bowers v. Mozingo, 399 So.2d 492 (Fla. 3rd
DCA 1981); Doing v. Riley, 176 F.2d 449 (5th Cir. 1949).
florida homestead
services llc,florida homestead,declaration of homestead,designation of
homestead,homestead,homestead exemption,florida,florida
homestead,florida homestead exemption,code
enforcement,exempt,exemption,home,homestead,property,lawsuit,legal,plat,plat
book,judgment,bankrupt,bankruptcy,court,court order,judgment,court
order,lien,levy,IRS,writ,designation of homestead,lien,forced
sale,exempt,tax,taxes,irs,i.r.s.,lawyer,attorney,law,legal,divorce,trust,statute,justice,liberty,due
process,rule of law,american,heritage,truth,power, winning lawsuit,
maxim, legal, terms, procedure, evidence, admit, admissible,
hearsay, rules, lawyers, attorney, attorneys, self-help,
litigation, civil procedure, evidence, interrogatories,
admissions, production, depositions, judge, jurisdictionary,
equity, trust, lawsuit, complaint, answer, discovery, trial, jury,
suit, sue, congress, statute,case law, stare decisis, rules of court,
general laws, florida law online, law school, business law,
constitutional law, case, appeal, appeals, appellate
YOUR COMPLETE SATISFACTION IS GUARANTEED!
We also provide absolutely FREE consultation
to answer any of your questions...
|
