Florida Homestead Exemption – Protection from Creditors
- What is the Florida Homestead Exemption?
- How Do I Qualify for the Florida Homestead Exemption?
- The Florida Homestead – A Constitutional Right
- Florida Homestead – A Real-Life Example
- What is the Waiting Period for the Florida Homestead Protection?
- Are There Any Exceptions?
- What if the Residence is in a Trust?
- How Does the Homestead Pass to Heirs?
What is the Florida Homestead Exemption?
The Florida Homestead protection in the face of a judgment is arguably the most powerful asset protection tool in the United States.
The Florida Homestead Exemption makes purchasing a primary residence in Florida attractive because it protects a Florida resident’s primary home from a judgment creditor. Therefore, in the event that a creditor should have a judgment against you, that judgment cannot attach to or become a lien on your Florida homestead. Put another way, a creditor cannot take your house away if you owe money on a judgment. The Florida Homestead is a Florida Constitutional Law that protects a person’s value in their primary residence. The Florida Constitution states that a creditor cannot sell your home to satisfy a creditor’s money judgment.
This homestead provision makes Florida an attractive option for people with judgments against them (or those who are about to receive a judgment against them) to relocate to Florida to protect their money from a collection by a creditor. While other states limit the value of your homestead, Florida’s homestead is unlimited. For example, you can purchase a home for 10 million dollars in cash in Florida as your primary residence, and, assuming you qualify in all other aspects and meet all the homestead requirements in Florida, a creditor cannot force the sale of your home to pay off their judgment.
There are exceptions to the Florida Homestead, and one should always seek the advice of a Florida-licensed attorney to guide them through the process. Call and speak to attorney Jack Novak, licensed in Florida and New York, and see if you qualify now to take advantage of the Florida Homestead.
Also, in case you do not currently qualify for the Florida homestead, Jack Novak, Esq. can help you with the necessary steps to meet all the requirements in Florida.
You worked hard your entire life to get where you are today. If faced with a lawsuit or a judgment against you or a creditor is about to obtain a judgment against you, be proactive and call us now.
How Do I Qualify for the Florida Homestead Exemption?
Single-family homes are not the only type of property to qualify. In the past, Florida courts extended homestead protection to condominiums, manufactured homes, and mobile homes.
Florida defines homestead as one’s principal residence up to one-half acre within a municipality and up to 160 contiguous acres outside of a municipality. Since this requirement is strictly construed, we strongly suggest that a qualified Florida attorney, such as Jack Novak, review your potential purchase.
Furthermore, to qualify for homestead protection:
- You must be a permanent Florida resident. If you are not a Florida resident, Jack Novak Esq. can counsel a streamlined approach to obtaining residency and will walk you through the process step by step. Changing your residence can be relatively quick and pain-free with the proper guidance.
- You must live in the home. However, this does not mean that you cannot still spend time in another state. Along those lines, Mr. Novak can provide expert guidance.
- You must have legal ownership (title) of the home.
Second homes or investment properties are ineligible for homestead protection.
Lastly, while anyone can establish a Florida Homestead, it is imperative that it is done correctly. If your Florida Homestead is not set up correctly, it can be vulnerable to creditor attacks. Moreover, there are additional steps that are necessary to protect yourself, and one should always seek the advice of a Florida attorney who handles these types of matters. Contact attorney Jack Novak and let him guide you through the process the right way.
The Florida Homestead – A Constitutional Right
Since 1868, the Florida Constitution has expressly shielded homestead property from forced sale except in certain circumstances.
The purpose of the homestead exemption has been to prevent poverty by protecting people who have unfortunately made bad financial decisions or those who were taken financial advantage of by others.
The homestead exemption promotes the stability and general welfare of society and the state by guaranteeing the protection of one’s personal residence or home against unsecured creditors. The Florida Constitution’s express intent is to prioritize family security over unsecured creditors. After all, a family’s security in their home benefits society and the state of Florida.
Under the Florida Constitution, provided all qualifications are met, a creditor cannot force a sale of your primary residence if you owe money on a judgment. Let Florida attorney Jack Novak help guide you through the process and ensure that all the qualifications for the Florida Homestead are adequately met.
Florida Homestead – A Real-Life Example
In Havoco vs. Hill, the creditor obtained a judgment against Mr. Hill personally for $15 million following a jury trial. The jury rendered their verdict on December 12th, 1990.¹ About two weeks later, on December 30th, Mr. Hill, previously a Tennessee resident, bought a $650,000 home in cash in Destin, Florida.²
Mr. Hill later filed for bankruptcy and claimed the creditor could not sell his Florida home with the judgment (note: filing bankruptcy and the Florida Homestead Protection are two distinct concepts). The creditor argued it would be unfair to apply the homestead exemption because Mr. Hill bought the home with the specific intent to hinder, delay, or defraud his creditors.
Eventually, the case went to the Florida Supreme Court following multiple appeals.
Before the Florida Supreme Court, was the question of whether the Florida Constitution still protected a homestead where the debtor acquired the homestead using nonexempt funds with the specific intent of hindering, delaying, or defrauding creditors.
The Florida Supreme Court held that Mr. Hill, even though he acted with the actual intent to hinder, delay, or defraud his creditors, was free to transfer his nonexempt funds (cash) into an exempt homestead because he did not obtain the funds via fraud.
In plain language, Mr. Hill was victorious.
Mr. Hill’s creditor could not force the sale of his Florida home even though he intentionally converted those funds into the purchase of his home in Destin, Florida – and even though he acted in the process with actual intent to hinder, delay, or defraud his creditors.
To this day, the Florida Homestead remains in place; however, there are exceptions and caveats. Hence, one should consult a Florida attorney, such as Jack Novak, for the proper legal advice for the specific situation.
What is the Waiting Period for the Florida Homestead Protection?
There is no waiting period for the Florida Homestead Exemption to become effective. That is, the homestead protection becomes effective the day that you occupy your home with the intent to make it your primary residence.
Evidence of this intent includes a Florida driver’s license, utility bills, where your vehicle is registered, or a Florida voter registration number. These are just examples and are not an inclusive list. Always consult with a Florida attorney for specific advice.
Are There Any Exceptions?
As per the Florida Constitution, there are only a few exceptions to the Florida homestead exemption, such as:
1. The homestead exemption does not protect against IRS tax liens and state tax liens for unpaid taxes. Property tax liens are likewise not protected by the homestead exemption.
2. Mechanics’ Liens are not protected by the homestead exemption. A contractor or subcontractor who has done work on your homestead property may be able to place a mechanics’ lien on your property, which would not be protected by the homestead exemption.
3. Mortgage liens or home equity loans are not protected by the homestead exemption. If you default on your mortgage payments, the lender may initiate foreclosure proceedings to recover the debt.
4. Liens recorded prior to obtainment of the homestead in order to secure payment of homeowner association dues or assessments.
What if the Residence is in a Trust?
Placing a qualified homestead exemption property into a revocable living trust does not have to destroy the protection from creditors. However, there are specific considerations and criteria that a Florida estate and homestead law attorney can guide you through.
The same cannot be said for irrevocable trusts, which effectively transfer the owner’s interest in property out of the individual’s control, disrupting its status as a qualified homestead and very possibly splintering the protection from creditors.
How Does the Homestead Pass to Heirs?
Even after the homestead owner dies, the protection continues, meaning that the creditor cannot go after the debtor’s homestead heirs.
In fact, the Florida Homestead is not part of probate so when someone dies without an estate plan, such as a revocable trust or will, and the decedent’s property generally passes through probate, the decedent’s representative simply files a Petition for Determination of Homestead, and upon the court’s determination, the homestead protection will pass to the heirs intact.
Footnotes:
1. In 2001, the Florida Supreme Court, in the seminal case Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001), reviewed Florida Constitution’s homestead exemption and its association with the Florida Uniform Fraudulent Transfer Act (UFTA).
2. Only 18 days later and two days before the Judgment became enforceable on January 2, 1991.