What is a 'Homestead'?

The notion of 'home' is a concept that remains a powerful part of virtually every American culture and heritage. Emily Dickenson wrote, "Where thou art, that is Home." Robert Frost observed that "Home is the place where, when you have to go there, they have to take you in." Johann Wolfgang von Goethe claimed, "He is the happiest, be he king or peasant, who finds peace in his home." And Christian Morgenstern proffered, "Home is not where you live, but where they understand you." A man’s home is truly his castle according to the Florida Constitution. It is a castle that is, and should be absolutely impenetrable by any legal foe or by any creditor. In legal terms, we demand more than nice thoughts when we define what constitutes one's home. We define safety, security, love, peace, harmony, good times, and  refuge from the daily strains of life and its many misfortunes. Nonetheless, the concept of homestead remains vitally important to each and every state in America and each and every one of our families. We use it to determine the reach of the jurisdiction or venue of a court, to quantify or justify citizenship, and to ascertain eligibility for various governmental programs, taxes, security, safety, etc., and much, much more. The importance that we place upon one's home is also reflected in how the principle is enshrined in the homestead exemptions of the state of Florida. The notion that the home is not only one's castle but that one's castle should be protected from one's creditors is very much a part of the American legal system, and it is never more evident than in the very generous homestead exemptions found in the Florida Constitution and in its laws, enacted for the very purpose of protecting that home. 

The purpose of the homestead exemption is to protect the family, to provide it a refuge from the stresses and strains of misfortune even at the sacrifice of just demands, to protect family from destitution and want and to protect family home from forced sale for debts of the owner and head of the family. The Constitutional provision exempting homesteads from forced sale was intended to guarantee that the homestead would be preserved against any involuntary divestiture by the courts, without regard to technicalities of how that divestiture would be accomplished. The Constitutional provision exempting homestead from forced sale is not limited to the debtor-creditor context. The purpose of the 'asset protection' exemption is to protect the family and to provide the family with refuge from misfortune, without any requirement of how that misfortune arose from financial debt.

One of the purposes of the homestead exemption is to benefit the head of a family so that he or she may not be deprived of the means of supplying necessities of life to his wife and children and those dependent upon him for support.  The homestead right is not limited to a mere holding of the legal title to the exempt property from forced sale, but includes the beneficial and uninterrupted use of such property superior to the claims of creditors; the policy of the law being to preserve the home for the family even at the sacrifice of just demands. The theory of the law as to homesteads is based on the idea that as a matter of public policy, for the promotion of the state's prosperity and to render citizens independent, one should have a home where his family may be sheltered beyond the demands of creditors who have given credit under such a law.

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). 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 an owner resides in the property and "in good faith" intends it to be his permanent home.

About the 'Homestead Exemption' Act and the law?

Florida has two distinct and separate laws regarding a homestead exemption. 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 'asset protection' exemption, as we like to call it, is governed by Article X, Section 4, Constitution of the State of Florida, 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 ad valorem property tax purposes. 

Homestead laws were generally designed to protect the home from creditors. It also provides the right of occupancy given to a surviving spouse, minor children, and unmarried children of a deceased owner and also affords reduced property tax treatment. When people use the term "homestead exemption" they may be referring to the ad valorem property tax exemption or the property tax reduction, also called the 'property tax break', or they could also be referring to the exemption from debts or execution for the payment of debts and protection from creditors. This web page and most of this website only discusses the exemption from debts aspect. Don't be confused by the two.

The debt exemption, which we like to call the 'asset protection exemption', does not mean that you cannot lose your home to creditors or that a lien cannot be placed on the home. If you borrow money on your home like most people do, the mortgage holder can foreclose and the exemption has no effect. If an unsecured creditor sues you and obtains a judgment, the creditor can enroll the judgment as a lien on your property. However, to the extent that you have claimed a homestead exemption, the creditor cannot execute on the homestead and force the sale of the home or take any of its equity or the proceeds of a subsequent sale or re-finance. 

Specific homestead laws vary from State to State. In Texas, for example, a homestead is not protected from debts owed to the federal government. The homestead exemption may be used without filing a recorded claim in some States, while in others, a designation of homestead may be required. On the other hand, in virtually every State, in order to receive a homestead tax exemption the property must be legally designated as such. In community property States, generally, either separate or community property may constitute a homestead. Likewise, in some States, a homestead owner's spouse must join in any transfer or encumbrance of a homestead. In almost all States, a surviving spouse is entitled to the sole occupancy of a homestead for life, even though the property may be owned by someone else, such as were the property is titled in the husband's name, he dies and leaves the property to his children. Be sure to check the laws of your State. Homestead property tax exemption forms are usually available from the tax assessor in your county. Florida residents can find their county property tax assessor HERE.

'Homestead exemption' is regarded and referred to as a constitutional guarantee to Florida (or other states) residents that reduces the taxable value of residential real property up to $25,000 for qualified residents. The state's homestead tax exemption is not a constitutional right. The tax exemption is also incorrectly referred to in many other ways by unknowledgeable realtors, brokers, attorneys and homeowners. 'Homestead exemption' also, albeit incorrectly, sometimes refers to asset protection of a home or of real property as previously mentioned. Your home probably qualifies for a 'Homestead Exemption', which is only related to ad valorem property taxes and assessments (Real Estate Property Taxes per Fla. Statutes ch. 196, et.seq.)  which does not protect your home and real property from lawsuits,  judgments or creditors. Homestead protection is not as 'automatic' as most people widely and commonly assume. The adage that 'they can't take your house' does not always ring true...In fact, it happens more today in the US than it did during the Great Depression.

The Florida real property tax statutes offers homeowners a way to apply for homestead 'tax' exemptions to reduce the assessment on 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 for the tax break. This is the homestead "tax" exemption explained in the local government's information. Homestead ad valorem property tax exemption is sometimes confused with the homestead 'asset' protection exemption.

The Florida exemption statutes allows homeowners to 'designate' and 'set apart' their homesteads to protect it from a forced sale to satisfy creditors, and to protect its equity. There is no minimum time period during which homestead exemption claimant must hold interest in property before being deemed to hold beneficial title to property for homestead exemption purposes in order to protect it from creditors. The local county tax appraisal office is unable to answer your questions concerning 'designation of homestead' and the exemption for protection from forced sale. In fact, many local tax offices and county recorder's offices have never heard of the statute, nor do they know how to serve the citizen under the statute. We at Florida Homestead Services intend to fully educate them. 

The exemption of a homestead from ad valorem taxation is quite a different thing from the exemption of a homestead from seizure and sale for debts, and therefore homestead issues and court decisions for tax purposes are not necessarily relevant to issues and decisions for forced sale purposes, the statutory provisions being entirely different. See Bowers v. Mozingo, 399 So.2d 492 (Fla. 3rd DCA 1981); Doing v. Riley, 176 F.2d 449 (5th Cir. 1949). Under the ad valorem tax exemption provision, the homestead is not required to be owned by the head of a family; he may own only an interest or an equity in the property.

Moreover, several owners, if they reside on the property, may have the total amount allowable divided between them. On the other hand, under the exemption law from seizure and sale, the homestead may have any value, and in addition to the exemption of the dwelling and the land of the homestead from execution there is also an exemption of personal property as well as the improvements on the real estate. Homestead for tax purposes and homestead for purposes of 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.

There is no exemption of personal property under the ad valorem tax exemption provision of the law. The homestead law which protects real property from seizure and sale for debts also applies to the equity in a residence. To qualify for homestead protection, a debtor may be a Florida resident and the homestead property must be his primary residence. Only "natural persons" can claim homestead protection, therefore properties titled in the name of irrevocable or revocable trusts may not qualify, and properties held in corporations, LLC's or partnerships absolutely will not qualify. Specific trust and deed language must be used in order for the real property placed in a trust to be granted the exemption. Contact us on this issue and we will be glad to help.

What makes Florida’s homestead protection so powerful is its unlimited monetary protection. A Florida resident can invest millions of dollars in large mansions, or exquisite homes and farms and protect the full value of these luxury residences under Florida’s homestead law.  In a recent Florida Supreme Court case and opinion, a person can transfer unprotected, non-exempt assets to his homestead at any time by either buying a new home or reducing the principal balance of an existing mortgage and protect this money under the homestead umbrella, even if the asset transfer was clearly designed to hide money from creditor claims. 

Although a castle to one person may be a shanty to another, the law does not discriminate as such. Regardless of whether one’s castle is a family home, or a cottage, whether it is a farmhouse or a villa by the sea, whether it a houseboat, a tent, a motor home  or a vehicle, whether it is a condominium or a co-op, it receives the same protections under Florida law provided that it is properly and legally claimed as their true homestead. The proper legal claim must be made prior to any judgment, by the 'designation' and 'setting apart' of the homestead property in a legal sense, and there is no limit on the dollar amount of the property claimed as a homestead. The claim of homestead can also be made after a judgment but the costs are tremendous and difficult to defend.

What is a Florida Homestead Defined As?

The answer to this can vary slightly, but a general legal definition is that a 'homestead' can be any structure, condominium, manufactured or mobile home, a motor home, vehicle, boat or vessel, tent, or any other livable structure usually on owned or leased land as long as the resident owns the 'home', or has an equity interest in it, and resides there. A homestead is actually the house or mobile home that a person lives in and land on which it sits. The property must be a person's primary residence for it to be eligible for a homestead declaration. The term homestead also includes any improvements legally defined as "appurtenances" to the land, such as a fence, addition or a gazebo. In fact, you may not have to be a resident of Florida as long as the property you live in can be legally claimed as a homestead.

The homestead exemption may be able to be claimed by a nonresident of the state who owns property in the state and maintains thereon the permanent residence of another who is legally or naturally dependent on him such as a dependent or college student. In Florida, a homestead is lawfully established when there is "actual intent to live permanently in a place, coupled with actual use and occupancy." Ultimately, all that is required to claim a homestead is that the person intends to reside on the property and in good faith makes the same his permanent home and all homeowners should make a written declaration in a legally sufficient affidavit form.

In order to be entitled to the homestead claim or 'exemption', continuous, uninterrupted physical presence of the residence is not required nor is a daily presence essential. 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.

 Involuntary absence is not sufficient to support a finding of abandonment. Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982). 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.

The constitutional provision exempting a homestead does not designate how title to the property is to be held and it does not limit the estate that must be owned; therefore, an individual claiming a homestead need not hold fee simple title to the property. Once a property acquires the status of a homestead, that characteristic continues to attach to it unless the homestead is alienated in the manner provided by law. Alienation means complete abandonment or purchase of a new homestead, or renting out of the entire property on a permanent basis. A homestead will lose its status by abandonment only when the owner voluntarily abandons the homestead with no intent to return as in the case of moving to a new primary residence. Briefly renting a home while traveling does not abandon the homestead status, nor does extensive travel or stay in another place regardless of what the property appraiser may convey to unsuspecting citizens. Absence for financial, health, job, travel, family or any other reason is also not considered legal abandonment. Legal abandonment is only considered as renting for profit or for more than six months, or moving to a new permanent residence.

The law defines a homestead as one’s principal place of residence. It's where you 'hang your hat' and go to your family or home. The Florida Constitution protects a person’s claimed principal  homestead residence from forced sale under the process of any court of law or equity to pay most any debt, lien, levy or judgment. The Constitution of Florida clearly states that no judgment, lien or execution can be a lien against any claimed homestead property, but to qualify for this homestead protection, a citizen may not necessarily have to be a Florida resident, but must actually reside on the homestead property as a primary residence, apply for homestead status in writing and make a proper legal homestead claim in writing. As mentioned above, homestead ad valorem property tax exemption is sometimes confused with the homestead 'asset' protection. Homestead exemption for property tax breaks do not afford the same legal protection. In one prominent court case, the fact that a certain homeowner had never filed a tax return in the United States was not sufficient to demonstrate that the debtor did not live in the home in question for purposes of the homestead protections afforded by law.

The meaning of the word "homestead" is not defined in the organic provision on the subject. The term signifies the place where the owner and his family reside, the place where the home is, or the house, and adjoining land, where the family unit dwells. But...a home is not necessarily a homestead, even though it is occupied as a residence and even though the person so occupying it is the owner. In a legal sense, it usually means that property that is occupied as a home or dwelling by two or more persons living together in a family relationship. In Florida, any single natural person living alone can make the homestead claim. It should be noted, however, that a homestead may consist of any interest in realty, and that the term 'equity protection' is sometimes used with reference to the exemption rights from forced sale.

The law does not expressly require the owner or his family to occupy the place claimed as a homestead in order to protect it from creditors. For the purposes of the homestead exemption, it is enough if the one claiming the homestead exemption has any beneficial interest in the property; it is not necessary that he hold any legal title to the property. Mere possession without any title whatever is sufficient to support the claim of homestead, where such possession is lawful. Any equitable or beneficial interest in land gives the claimant the right to exempt it as his homestead in order to protect it from creditors.

Regarding parcel size, a homestead can usually include a sizeable parcel of land, though the sizes allowed to be included as a protected homestead can vary by state. Florida allows one hundred sixty (160) acres of land to be claimed if located outside of a municipality, or one-half (1/2) acre if located inside of a municipality. A homestead may also comprise more than one lot or tract of land. The use to which parcels of land are put is of prime importance in deciding whether the homestead exemption will apply to multiple, contiguous lots. A homestead owner may add additional land to his homestead, within the size limitation, and have it exempt from a judgment against him. Parcels of land adjacent to each other which were acquired at different times may both be exempt under the homestead laws. Also, if a business is performed from inside the home, it is still protected.

Whatever kind of residence a person owns, their investment and equity in their primary residence cannot be seized by most any creditor for most any reason, but only if the residence is properly claimed as their homestead property utilizing the procedures enacted by the legislature. This is where Florida Homestead Services can help. Real property claimed by the ad valorem tax exemption does not protect your home from forced sale or seizure. It merely gives you a twenty-five thousand dollar reduction from the total assessed value of your property for tax purposes.

I was under the assumption that 'They can't take your house in Florida!'?

Yes, they can...they do, and they will. Each and every day some unfortunate family loses their home or its equity to creditors, homeowner's associations, condo associations, lawsuits, and many other reasons. The assumption or perception that they can't take your house in Florida is a somewhat misleading statement and provides a false sense of security for each and every homeowner. We can tell you some of the horror stories regarding homes being taken and the residents being 'kicked out on the street' with nowhere to turn or to live. We at Florida Homestead Services have heard almost all of them. You can read some of them HERE. The protection of your home and its equity is not so automatic as most assume and you must come within the purview of the law in order to set apart the property and keep your home and equity protected. This is what we specialize in here at Florida Homestead Services. Don't let anyone fool you...it can and has happened to many decent, law abiding and smart homeowners. In fact, foreclosure of homes are happening more frequently today than they did in the Great Depression.

Does the Homestead protection take the place of home insurance?

Absolutely not! The Homestead protection is not a substitute for home insurance or any other type of liability insurance. These are separate and distinct types of protection. The Homestead protection will also be effective after any liability insurance is used to pay for any judgments that are related to liability incurred under that particular insurance policy (e.g. home, automobile, etc.)

How does the 'tax exemption' protect my Home?

It doesn't. The homestead property 'tax exemption' has a separate legal or statutory basis. As previously mentioned, it allows a resident of Florida to exclude from the calculation of his ad valorem real property taxes twenty-five thousand dollars of the assessed value of his principal residence. Do not confuse the homestead property tax exemption with our 'Declaration of Homestead' protection process, and do not allow anyone to convince you it is the same thing. It is not. Again, there are separate and distinct laws and state statutes involved in each process. A Homestead 'Asset Protection Exemption' consists of public documents which can protect your home and property in times of economic hardship or from liens, judgments and foreclosure. It has nothing to do with the process of filing a claim for local or state government real estate tax breaks, rather, it is a claim that can prevent the attachment of your land and dwelling by creditors or lawsuits.

Florida homestead law also complicates real estate titles and conveyances, the descent and the distribution of a decedents estate, and the collection of money judgments. Every Florida resident is entitled to have his interest in the real property on which he resides, his 'homestead', exempt from forced sale for the collection of money judgments, liens or for almost any other reason but only if properly and legally applied for, claimed or set apart either before or after a levy. The key to the 'Homestead' protection is that the exemption must be properly claimed and if there is a prior or a pending court case, lien, levy or judgment the claim must be filed in the court record. This is what we do here at FHS. After the owner's death, this exemption transfers to his surviving spouse and heirs at law who inherit the claimed homestead. Our company is an information and filing service that we provide to the public, at great importance, in order to help you to protect your equity and your most valuable asset from creditors and judgment liens, your home and castle.  Since we are a company, we cannot render legal advice nor practice law, with that in mind, this is how most events take shape:

Illustration: You decide that you qualify for Homestead asset and equity protection exemption and use the information available from Florida Homestead Services to decide to protect your home and property from judgments, liens and creditors.  It is very important that you safeguard the legal documents after they are signed just as you would any other important papers. You may someday need to prove that your property is indeed a legally claimed homestead.

Let's assume that Code Enforcement or some other government agency, a corporation, a private entity or individual, a creditor, plaintiff or any person decides that or some reason or another that you are in violation of some rule, ordinance, regulation, law, right, responsibility, contract, agreement, trust, etc., or decides that or some reason or another that you owe them money, or sues you and serves you legal notice. You could either respond to the legal notice, or not. You could comply with their demands, or not. Let's take for instance Code Enforcement...Since the Code Enforcement Board is an administrative board, it could be argued, perhaps incorrectly, that a Code Enforcement Board has jurisdiction only over those who place themselves under the board's jurisdiction, through a contract or through a permit or license of some type. This is the nature of an administrative board.  If you obtain a building permit, or go to a Code Enforcement Hearing to defend yourself, it could be construed that you are willingly placing yourself under the jurisdiction of the Code Enforcement Board. If you don't respond, or if you fail to comply, the Code Enforcement Board may begin to place fines or liens against your interests in your real property.  As the fines reach a certain level, usually to the tune of hundreds of dollars a day, the Code Enforcement Board would place a lien against your real property, or try to forcefully take your property from you.

Code Enforcement is the average homeowner's nightmare, and the Code Enforcement fines are the biggest source of revenue for most municipalities. Keep in mind that Code Enforcement Ordinances were enacted and  intended to only serve a 'Valid Municipal Purpose' to protect the health, safety and welfare of the community, not regulate appearance or aesthetics, or regulate what you can and cannot do on your private property.

Now, at that time you could pay the expensive fine and comply, or not. Or you could not pay the fine and eventually contest the subsequent lien which subsequently stems from the fine, and place the burden of proof back onto the Code Enforcement Board with the requirement that they prove that the lien applies to your legally claimed homestead property. It is interesting that the Florida State Courts and the law regarding code enforcement liens state, and have ruled in numerous opinions that "No such lien exists as to homestead property" but the property must be properly claimed as a homestead. A code enforcement board stands in the shoes of any other judgment creditor with respect to forcing a sale of homestead property pursuant to foreclosure, since a lien is neither a
"tax" nor an "assessment" within the strictly construed exceptions to the liberally construed constitutional rule of homestead exemption from forced sale. The code enforcement boards know this as it has become common knowledge in most jurisdictions in Florida, just as they know that they cannot trespass onto property without a warrant to issue code violations (contact us for the state's legal opinion on the trespass issue). Thus, you may totally ignore the code enforcement lien and your property will be fully protected, provided you claim the protection through Florida Homestead Services, as a code enforcement lien cannot stand against homestead property, nor can the code enforcement officer or police trespass onto homestead property if properly posted without a valid warrant.

Does every state have a homestead ad valorem tax exemption?

No. Each state determines their own laws regarding homesteads, and homestead tax and 'asset protection' exemptions. The best way to determine if your state has an exemption is to research your state laws in the state that you are in. The most noteworthy feature of Florida’s homestead asset protection law (not connected whatsoever with the homestead ad valorem exemption or "tax break" law) is its lack of any monetary limit on the claimed homestead’s protection. While many states around the country have homestead protection in their laws, almost all other states have some limit of homestead protection. Florida homestead exemptions are available to real property owners in Florida which covers two separate types of homestead 'exemption', one homestead exemption for real property ad valorem tax purposes (Real Estate or Property Taxes) and a homestead 'exemption' (For real property, equity and income) for asset protection purposes. The two are totally unrelated as a matter of law although they are incorrectly referred to by the same name or terminology and are assumed to be the same thing. 

Homestead rights don't 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 this important legal right. The fee for doing so is nominal, and the forms and complete information service for the State of Florida are exclusively provided by Florida Homestead Services, LLC. Your state, if other than Florida, may have the availability. Contact your attorney for more information.

Again, 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 or upon the death of the head of the household and to prevent citizens from becoming a financial burden on the citizens, taxpayers and the public. In general, this protection is available only if the claim is filed in advance of such a catastrophe. In Florida, the claim for protection is also offered by law after a judgment or a levy. The protection is much stronger if claimed before a judgment lien or levy. 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 homestead laws, their house and land, and their income would be fully protected up to the amount of exemption allowed by their state. In Florida, the exemption amount is unlimited as long as bankruptcy is not filed. You are better protected under state law, now that the new bankruptcy law is in effect.

Unfortunately, the two concepts in the Florida Statutes, both incorrectly referred to as "Homestead Exemption" and incorrectly referred to even by seasoned attorney's as such, is the fact that you have one type of homestead exemption, such as the ad valorem property tax exemption, does not necessarily mean that you have the other type of homestead exemption, the asset or real property protection exemption, as each legal exemption has distinct, separate and different legal and statutory requirements. We specialize in providing factual and correct information regarding homestead asset protection and exemption of income protection from creditors for real property asset protection purposes only. The real property asset protection laws are not automatically granted to homeowners as commonly assumed. Your real property must be eventually claimed and set apart as a homestead to avoid creditor judgments or liens.

What if I am not a Florida resident or what if I am an alien?

In regards to the law, citizenship is not a prerequisite for claiming the the 'asset protection' exemption.  As one court stated, “a person’s declarations about his home, residence, or domicile are evidence of his intent, including a statement contained in a formal legal document like a will.” A natural person wishing to establish domicile in the State of Florida should take aggressive steps to document his or her new domicile contemporaneously with the domicile change. For example, in accordance with the law, a person wishing to establish a Florida domicile may file a sworn statement with the clerk of the circuit court. A person may also file a sworn statement regarding intent not to establish Florida domicile. A Florida homestead declaration, also called a  designation of homestead is also very powerful written proof of intent to choose Florida domicile for protection from creditors and lawsuits. While such formal statements without more may be unlikely to prove domicile, the absence of such statements may be taken as prima fascia evidence in a court room that domicile has or has not not changed.

Case Law:

A property owner who was in good faith making the property his home was entitled to homestead exemption under Constitution, notwithstanding that he was not a United States citizen. Smith v. Voight, 158 Fla. 366, 28 So.2d 426 (1946). The Federal designation as 'indefinite' for purposes of an applicant's immigration status should not bar his entitlement to a homestead exemption from ad valorem taxation pursuant to Const. Art. VII, § 6, and § 196.031. Op.Atty.Gen., 2005-55, November 9, 2005(2005 WL 3024144). Alien in this state with a permanent visa, with no intention to apply for citizenship, is entitled to homestead exemption pursuant to this section. Op.Atty.Gen., 071-242, Aug. 17, 1971. A person in this country on a temporary visa may not be granted a homestead tax exemption. 1953-54 Op.Atty.Gen. 317.

When faced with conflicting evidence of domicile, a court or taxing authority may give less weight to self-serving formal expressions of intent than to more concrete indicia of domicile such as a written and legally sufficient designation of homestead and declaration of domicile. In some cases, you may not even have to become a Florida resident in order to protect your property and equity from creditors. The courts have stated that a property owner who is in good faith making the property his home is entitled to homestead exemption for protection purposes under the Constitution, notwithstanding that he is not a United States or Florida citizen. But...there are other cases and opinions to the contrary. Contact us for details if you are an alien and denied the property tax exemption. We may be able to help.

If I divide my time equally between my winter and summer residences, can I declare a Homestead on both?

No. A Homestead can be declared only on an applicant’s “principal residence”. A person can have more than one residence but the statute only allows the protection on one’s legal domicile. There is no legislative intent to allow the exemption to apply to a vacation and not primary residence. For example, a husband cannot declare a Homestead exemption on one residence while the wife declares the exemption on the other residence, unless each can prove that the residence is their “principal residence” and that they are separated with no fraudulent intent.

The Importance of Establishing Domicile

Once you have determined if you want to live in Florida or just retire here, there are several important elements that need to be considered. Your first consideration should be where you intend to make your primary residence. Today, it is not uncommon for individuals to maintain several residences where they spend specific times of the year. However, the determination of your primary residence has both tax and estate planning considerations. Therefore, before determining your primary residence or before moving to any state you should consider the following:

1. Does the State have a homestead exemption from creditors and if so what is the amount?
2. Does the State have a personal income and/or estate tax and what is the rate?
3. Does the State have an intangible tax on property? 
4. What is the State sales tax and does it vary from county to county?
5. What are the tax implications to the filing of your income and estate tax returns in the State?
6. What are the creditor protection laws of the State (are they creditor or debtor friendly)?

Once you have considered these factors and chosen your state of residence it is recommended that you accomplish the following:

1. List your new address on all Federal and State tax forms.
2. File for the homestead tax and asset protection exemption in the state, if any.
3. Obtain a new driver’s license with your new address.
4. Register your automobiles, license plates and register to vote.
5. Transfer your safe deposit box contents to your new state and area of primary residence.
6. Open a bank account in your new state and area of primary residence.
7. Change the address on your credit card accounts and on your passport.
8. Execute a new Will and/or amend your Trust to reflect your new state of residency.
9. Affiliate with local civic and religious organizations.
10. Consider the acquisition of a local cemetery plot.

If a legal question should arise about your domicile, it is very common for the above listed prerequisites to be used as a point of reference. If necessary, a court of equity will resolve the domicile issue as a factual question and weigh all of the various factors. However, be advised that there is no specific formula that effects the certainty of the process. However, if you maintain two or more homes, it is not necessary to give up any of the following in the non-resident states:

1. Affiliation and membership in social organizations, country clubs, a church or temple or a burial plot.
2. A bank account and safe deposit box.
3. Business interests because of capital gains tax or other business reasons.

The individual must also weigh the tax benefits of a domicile change with its direct effect upon them. The domicile change may force them into a new pattern with which they may not be comfortable. Therefore, if the individual is reluctant to abide by the checklist, they should reconsider whether they are really a candidate for a domicile change. This issue has become especially important in the State of Florida where property taxes have increased up to 80 percent in the last year alone. This has left many non-resident homeowners looking for a shelter to protect them from rising taxes.

Under the Florida Constitution, non-resident homeowners are not protected from big tax increases that coincide with rising real estate values. This protection is exclusive to Florida residents and is derived from a 1992 Florida Constitution amendment that limited the maximum increases to the taxable value of a homeowner’s primary residence to 3 percent or the rate of inflation, whichever is lower. This amendment was affectionately known as “Save Our Homes.” It is also unfortunate that the courts are reluctant to accept at face value a change of domicile when an actual residence is established and maintained. Several states, including New York, are overly aggressive in contending that no domicile change has taken place. It is most important that the individual not continue to do anything that is inconsistent with a change of domicile or risk a challenge upon their death.

Where can I find information about the homestead exemption for reduction of my property taxes?

To find information about the homestead exemption for reduction of your property taxes CLICK HERE. If you own residential property in Florida and permanently reside on that property, it being your primary residence, you could be eligible to receive the homestead ad valorem property or 'tax break' exemption which is not related to the asset protection exemption. The regular homestead tax exemption reduces the assessed value of homestead property by $25,000 to arrive at the amount to be subject to assessment and property tax. For example, if the assessed value is $100,000, and you receive $25,000 homestead exemption, the taxable amount is $75,000. There is an additional exemption amount of up to another $25,000, available to any person who resides in a county or municipality which has approved the additional exemption, and who is 65 years of age or older, who receives the regular homestead exemption, and whose annual household income is not in excess of a certain amount, which is slightly more than $20,000, adjusted from year-to-year based on a cost of living index.

There are many other exemptions to save tax dollars as well such as military and disabled veterans exemptions. Although we at Florida Homestead Services can help you tremendously in order to claim the ad valorem property tax exemption through the providing of the information required and to obtain the forms in order to make the property tax reduction claim, we do not associate with, nor do we provide excessive information on the ad valorem homestead property tax exemption as the information is widely and readily available from the local county tax assessor's office. 

Your local County Property Appraiser's Office has the forms and information to file for the homestead ad valorem property tax and additional exemptions mentioned herein. Most tax exemption forms are available online from the county property appraiser and free of charge. There is also no charge to file the tax exemption, or 'tax break' form. We can also help new homeowners in Florida with the information that is required in order to file their application for this money saving process. We at Florida Homestead Services cannot file tax exemption claims for homeowners. Contact your county property appraiser if you need help with your ad valorem (real estate) tax exemption claim. We at Florida Homestead Services do give information on the tax exemption here, but we do not file the applications for the tax exemption. You can download the application forms here (Adobe.pdf, 25Kb). 

What happens to my Homestead if I re-mortgage or take out a second mortgage or a home equity loan?

Existing law on the effect of refinancing on an existing homestead is unclear. If you are in this situation, you should ask your real estate lawyer whether you should file a new homestead after refinancing. We suggest that you contact us, because re-filing a new homestead claim may cause your property taxes to increase.

Doesn’t Florida law only allow a yearly increase of assessed taxable value of no more than 3%?

Can I find the property tax exemption forms online?

Sometimes homestead ad valorem tax exemption forms and applications are posted on the internet, but there usually is no way to know if it is the right form for your real property or where you should send the form to complete the application. Remember, every county has a different office to submit the property tax exemption form to, and may have their own specific form and filing fees. We only provide information for you to protect your real property under the homestead asset protection laws, not the tax exemption application form. In order to be able to submit the correct homestead tax exemption to your local county recorder's office, you must meet certain criteria. Also, if you make mistakes on your form, or if the form is legally insufficient, you may be denied the homestead protections afforded to you under the applicable laws as there are certain requirements that must be met in order to make the claim. The County property appraiser's office only deals with the exemption that provides $25,000 savings on your property tax assessment and qualifies you for "Save Our Homes" limits in tax increases. You can download the state approved DR-501 application form here (Adobe.pdf, 25Kb). 

By law, a person can declare his real property as their homestead utilizing a separate law apart from the tax exemption law, at any time before or after a levy, but why wait until after a lien, levy or judgment and have to spend more time and money? Also, the difficulties in defending the subsequent lawsuit and the costs increase tremendously after the fact. Also, a homestead claim after a judgment lien does not negate the recorded lien. If the Sheriff were attempting to forcefully sell your property, you must file legal papers and a notice to stop the forced sale at great time and expense, and a lawsuit is necessary. It is not a waste of money to protect your family and your home now from possible future problems. It is the best form of legal protection provided by law that you can obtain on your most valuable asset, your home and its equity!  

The best way to ensure you receive the homestead asset and equity protections allowed by law, is to request our Homestead Exemption Information package and learn about the protections afforded to you and protect your home today!

Is the Homestead tax Form difficult to fill out?

No. It simply asks for basic information. Just be careful when writing your property legal description or your other required information. Failure to be accurate and provide all required information may result in loss or denial of your homestead tax exemption.

How much money can I save with the homestead county property tax exemption?

In regards to the property ad valorem tax exemption, this may vary based upon the taxable value of your home. What the homestead ad valorem tax exemption does is lower the taxable value of your home by $25,000 in the State of Florida. The average home can save anywhere from $500 and up each taxable year on their real estate property taxes by claiming the tax exemption. The homestead exemption for asset protection of real property purposely provides the owner of real property and the equity in that property with a shield from virtually any and all creditors, including code enforcement and local, state or federal government agencies based on the constitutional guarantee. The statutes merely provide the mechanisms to perfect or assert the right and guarantee. 

In Florida, if the homeowner’s real property qualifies as his homestead, it is generally exempt from being forcefully sold by his creditors both during his lifetime and after his death, but the homeowners must properly claim and set apart the real property as a true homestead for any subsequent lien to be void. There is no dollar limitation on the real property that can be claimed as a homestead. The two million dollar home is covered as well as the fifty-thousand dollar condominium but the proper legal claim must be made. There are exceptions to the homestead asset protection exemption laws: (1) payment of real estate taxes and assessments on the homestead property; (2) obligations contracted for the purchase, improvement or repair of the homestead, such as a mortgage; and (3) obligations contracted for labor performed on the homestead. If these exceptions are not met, a lien may be able to be placed against a claimed homestead property or against a homeowner's association controlled property. Homeowner's association liens may not be covered by the law and may also be foreclosed based on contract law. We suggest a good real estate attorney if you have HOA problems. Read about some of those HOA issues here. You could save hundred's of thousand's of dollars, if not millions, by properly protecting your real property and home from forced sale, judgments and liens before they exist. Contact Us for details!

How often do I have to file the Homestead Tax Exemption?

Just once in most states for each home. If you move to a new home in Florida you will need to file for a new Homestead Property Tax Exemption, by the deadline date or March 1st of each year, and a new claim for your asset protection portion of the newly purchased home just one time. Properties granted the homestead ad valorem tax exemption automatically receive the ’Save Our Homes’ benefit. This is a constitutional benefit approved by the Florida voters in 1992. It places a limitation of three percent on annual tax assessment increases on homestead tax exempt properties. Read more about the 'Save Our Homes' law here. Actual physical presence on the property as of January 1st is not necessary in order to claim the tax exemption, but you must own it as a primary residence by that date. Temporary absence will not deprive homestead claimant of his right, unless it appears that there was a design of permanent abandonment, and such rule applies to homestead tax exemption privilege.

How about if I travel or live somewhere else for an indefinite period of time?

Abandonment, in general under Florida law, means moving to a new primary residence or the rental of the home for profit. A resident is entitled to the homestead tax exemption unless it is shown that both the owner and owner's family abandoned the property. In re Kalynych, Bkrtcy.M.D.Fla.2002, 284 B.R. 149. Once property has acquired the status of homestead, such status continues until abandonment has occurred. Poppell v. Padrick, App. 2 Dist., 117 So.2d 435 (1959).

Although the rule seems to be that an absence from one's homestead for an extended length of time is not of itself an abandonment of the homestead, such an absence may raise a presumption by the property appraiser sufficient to cast the burden upon the person claiming the homestead exemption to satisfy the tax assessor that there has in fact been no abandonment. Such an absence may be taken, together with other evidence tending to show an abandonment, to show an abandonment and no actual intention to return to the property and further maintain it as a homestead. 1958 Op.Atty.Gen. 058-329, 058-229 (Revised), Dec. 10, 1958. Beware that the laws says that the property tax assessor has the presumption of correctness in his decision and the burden is upon you to prove him wrong. We can help on this issue.

Also, mere absence for a long period of time is not of itself sufficient to establish abandonment of a homestead and deprive it of its character and the tax exemption, where the claimant never acquires another homestead, and there is no showing of any intent not to return. 1958 Op.Atty.Gen. 058-229, July 22, 1958. The temporary absence, or abandonment rule says that a temporary absence will not depr