Homestead

Question 1

What is the general purpose of the homestead exemption from forced sale?

Answer 1

The homestead exemption from forced sale protects property from levy by creditors of the owner.

The homestead exemption from forced sale also places restraints on:

(1) the voluntary conveyance of the property away from spouse, unless spouse consents

AND

(2) devising of property away from a spouse or minor child

Question 2

What is the policy behind the homestead exemption?

Answer 2

Policy: protection of family unit

Question 3

What are the five requirements for the homestead exemption from forced sale to apply?

Answer 3

There are five (5) basic requirements that must be satisfied for real property to constitute homestead property:

(1) The real property must be owned by a “natural person.”
(2) The person claiming the exemption must be a Florida resident who establishes that he or she made, or intended to make, the real property his or her permanent “residence.”
(3) The person claiming the exemption must establish that he or she is the “owner” of the property.
(4) The property claimed as the homestead must satisfy the “size and contiguity” requirements of the constitution.
(5) the homestead must have been established before levy of the judgment creditor

Question 4

What are the three exceptions where the homestead exemption from forced sale will not apply (property could be taken)?

Answer 4

Exceptions from Protection

(1) Taxes and assessments against the property
(2) Mortgages for purchase of property or improvement on the property;

AND

(3) Mechanics liens (for labor performed on the property).

Question 5

Does the owner’s homestead property exemption from forced sale inure to the benefit of anyone?

Answer 5

Yes - after the death of the homestead property owner, the exemption inures to the benefit of the surviving spouse or heirs.

Question 6

What is the homestead property that can qualify for the exemption from forced sale?

Answer 6

(1) Personal property

•Up to $1K in value

(2) Real property inside a municipality

•½ acre of contiguous land

(3) Real property outside a municipality

•160 acres of contiguous land

Question 7

When is homestead protection forfeited?

Answer 7

When the owner of the homestead:

(1) leaves the homestead,
(2) without intent to return.

** In order for abandonment to occur, both the owner and the owner’s family must have abandoned the homestead.

Question 8

Are the proceeds of a sale of homestead property protected by the exemption from forced sale?

Answer 8

YES

If the owner of a homestead:

(1) sells the homestead;

AND

(2) reinvests or intends to reinvest the proceeds in a new homestead within a reasonable time thereafter the sale

= the proceeds are protected & retain their homestead status.

Question 9

What are the restraints on conveyance or devise of homestead property?

Answer 9

(1) Restraints on Conveyance

•Owner cannot sell or convey homestead property away from spouse, unless spouse consents

(2) Restraints on Devises

• If owner has minor children –> Owner cannot devise homestead if he has minor children. Spouse will get life estate & remainder to children.
• If owner has no minor children –> Owner can devise to spouse in fee simple, but cannot devise homestead away from surviving spouse unless spouse waived it by prenuptial agreement.