Florida’s unique homestead laws provide both advantages and disadvantages to you as a homeowner. An understanding of these homestead laws will help you, as a homeowner, make the best decisions for yourself and your family. Board Certified Real Estate Attorney, Scot Copeland, is here to help you get started. This blog post focuses on these key areas: Protection from the claims of creditors, restrictions on transfers of homestead property, and property tax exemption and limitations.
PART 1 – PROTECTION FROM THE CLAIMS OF CREDITORS
Every year, many people from across the country move to Florida to take advantage of its broad homestead protection laws. Here, our home is our castle, and these laws are arguably the most protective in the United States.
Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors. This means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary judgment.
To qualify for homestead protection, the debtor must be a permanent resident of Florida and the homestead property must be owned by the debtor and remain his/her primary residence. With the exception in certain bankruptcy cases, the homestead protection is effective immediately upon establishing a permanent and primary residence in Florida.
Article X, Sec. 4(a)(1) limits the protected homestead to one-half (1/2) acre if it is located within a municipality (town or city) or 160 acres if it is outside a municipality. This geographical area of protection is one of the broadest in the United States. The value of the property protected is unlimited. Consequently, a debtor may purchase and improve a parcel of property within these acreage parameters up to any amount, with the resulting improvements and land being protected from creditors. Florida’s homestead protection is such a potent asset protection tool because of its unlimited monetary protection. Florida residents may invest millions of dollars in lavish estate homes and farms that are fully protected from creditor’s claims.
Article X, Sec. 4(b) extends these exemptions to the surviving spouse and related heirs of a deceased homeowner. Thus, upon a homeowner’s death, the surviving spouse and related heirs may receive the homestead free and clear of any creditor’s claim. To legally establish the protected homestead, a benefitted party (spouse or related heir) should file a petition to determine homestead in an estate administration proceeding.
However, there are exceptions to Florida’s homestead protection law. Article X, Section 4 does not protect homestead property against tax liens, mortgages, assessment liens, and mechanic’s liens related to that specific property. For example, a mortgage of homestead property or a lien resulting from the failure to pay a contractor for materials for your home is not protected from creditor’s claims. Such non-exempt liens will also result in a title issue that may prevent the sale or refinancing of your home.
Additionally, certain types of co-ownership (such as tenancy in common and joint tenancy with rights of survivorship) of a homestead may jeopardize the homestead exemption when one of the joint owners does not reside on the property. In such a case, a judgment against one co-owner not residing on the property may result in that co-owner’s interest being levied against, which would force a judicial sale of the homestead property (in which case the protected co-owner would be entitled to their portion of the sale proceeds).
PART 2 – RESTRICTIONS ON TRANSFERS OF HOMESTEAD PROPERTY
Article X, Sec. 4(c) of the Florida Constitution restricts an owner’s ability to mortgage or transfer (via deed, will, or trust) the homestead, with the purpose being to promote family unity and provide a residence for the owner’s family. In summary, these restrictions are as follows:
A married owner may not mortgage, sell or gift the homestead to anyone other than a spouse or to the owner and the spouse, unless the spouse also signs the deed or mortgage. This is true even if the spouse has no legal ownership in the property, as the law deems the spouse to have an equitable interest in the homestead.
If an owner is survived by a minor child, the owner cannot devise (transfer at death through a will or trust) the homestead.
If there is a surviving spouse and a minor child, the owner cannot devise the homestead. In this instance, the homestead passes automatically to the spouse and the owner’s descendants. A surviving spouse has the option to take a life estate in the homestead or a ½ interest in the homestead. Such joint ownership among family members often creates problems regarding the use and marketability of the homestead.
If there is a surviving spouse but no minor child, the homestead can only be devised outright to the spouse.
These restrictions on devises only apply when (1) the homestead is owned by the owner at his or her death and (2) such ownership interest does not automatically pass to another. Therefore, a homeowner can avoid these restrictions (and have more flexibility with estate planning and asset succession) by titling the homestead with other(s) as tenants by the entireties (ownership among spouses) or joint tenants with rights of survivorship. These forms of ownership result in an automatic transfer to the surviving joint owner upon the first to die. Otherwise, these restrictions may only be limited or avoided by a spousal waiver in either a pre-nuptial or post-nuptial agreement or spousal disclaimer upon death.
PART 3 – PROPERTY TAX EXEMPTION AND LIMITATION
When an owner establishes the home as his or her permanent residence, the owner may apply with the county property appraiser for a homestead exemption which may reduce the assessed value for property taxes up to $50,000.00. Additional tax exemptions exist for certain service members, disabled persons, seniors and veterans. Florida also caps the annual assessment increase at 3% (“Save Our Homes” limitation), thus the assessed value for tax purposes cannot exceed that amount each year regardless of the increase in value of the home. Additionally, Florida allows the transfer or “port” of the total benefit that may accumulate over the years as the home appreciates above the SOH limitation.
The homestead exemption is considered annually, and ownership and residence must be established on January 1st of the applicable year. The application for homestead exemption (Form DR 501) needs to be filed with the county property appraiser by March 1st of that initial year the homestead exemption typically continues each year thereafter provided the home remains the permanent residence of the owner. There are additional requirements to establish the homestead property tax exemption and the county property appraiser can provide additional information.
In summary, Florida homestead laws are significant and warrant consideration by homeowners and prospective homeowners. Should you have questions or wish to discuss the homestead issues you are facing, do not hesitate to contact Scot B. Copeland.
Scot B. Copeland is a board-certified real estate attorney whose practice includes real estate and business law.