What is necessary to protect your house under Florida homestead protection from creditors?
In Florida, property ownership comes with many benefits, but it is an expensive endeavor that deserves as many protections as possible. Luckily, the Florida legislature has recognized the need to protect the investment you have made in your family and life in general by purchasing a home. Under Article X, Section 4 of the Florida Constitution, the Florida legislature has ensured protections of Floridian homes in the form of homestead exemptions. This article will explore the requirements necessary to establish a homestead and the protections it provides for your home. Consulting with a Florida real estate attorney could be prudent to make sure you are establishing homestead or to determine if homestead may apply to your property.
Homestead exemptions protect your home from creditors, but you may only possess homestead protections on only one property in the state, your primary residence. Basically, this means that, under certain circumstances, your home cannot be sold to satisfy a judgment against you. However, this homestead protection comes with its limitations. For instance, this homestead protection cannot protect your home against being sold regarding (1) a mortgage on the property, (2) taxes owed on the property, or (3) mechanics liens for work performed on your property. Furthermore, you would have to ensure that you are doing what is necessary to establish your home as your homestead. Your Florida real estate attorney can help guide you to establishing, and maintaining, your primary residence as your homestead.
To establish homestead protections in your primary residence, you have to (1) be a natural person, (2) be a permanent and legal resident of Florida, (3) own the property, and (4) comply with size and contiguity requirements.
It may seem bizarre to include as a requirement to establishing a homestead protection that the owner of the property be a natural person, but property ownership can come in many different forms here in Florida. For instance, one could own a piece of property under the name of a limited liability company, corporation, or a trust. While, a Florida real estate attorney can guide you to knowing which ownership type is best for you, if you want a homestead protection, it is likely that you will need to own your home in your own name (certain exceptions apply).
In order to establish homestead protections in your home, you must be a Florida resident. In order to do so, you would have to establish that you have made, or that you intend to make, your property your permanent residence or your family’s permanent residence. Therefore, it is possible for someone to claim a homestead exemption on their property if the home is their family’s primary residence even if they are not permanently in the home. Check with your Florida real estate attorney to ensure that you are doing everything you can to meet this requirement.
This requirement may seem simple, but there may be some nuances to discuss with your Florida real estate attorney. For instance, just because one is married to the property owner, one should not assume that both spouses are afforded homestead protections. There must be a possessory interest in the property being claimed as one’s homestead for the exemption to apply. Also, there are different types of ways to own your home. For instance, one may have a life estate, or be a tenant in common to a home. In these instances, a homestead exemption is likely to be established, but be sure to inquire with your Florida attorney to see if how you own your property is in a way that can maximize your legal protections.
Size & Contiguity
This may be the more complicated out of the rest of the means to establish homestead protections on your home, but with the guidance of a Florida real estate attorney, you will be able to properly identify if your property qualifies for a homestead exemption. The size and contiguity requirement depends on whether your home is located within a municipality or outside a municipality. For instance, suppose your property is located within a municipality. Your homestead exemption would extend to the first 1/2 acre of your property. Likewise, supposing your property is located outside of a municipality, your homestead exemptions would extend up to the first 160 acres of your property. That is not to say that if your property is more than 1/2 acre or 160 acres in size that you would not receive a homestead protection, it just would mean that only a portion of your property would fall under the exemption. Also, the contiguity requirement means that that 1/2 acre or 160 acres of your property must be connected.
As you can see, there are several considerations that go into establishing a homestead here in Florida. Also, you would want to consult the advice of a licensed Florida real estate attorney to guide you through what you need to maintain your homestead protections once you have established them. If you have questions or concerns about homestead exemptions, property law, or other Florida legal services, please contact Apfelbaum Law for a consultation. We can be reached at 772-236-4009, or [email protected]
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.