Abandonment of Homestead Protection in Florida

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Benjamin Franklin wrote in 1789 about the permanency of the newly-minted Constitution, “in this world nothing can be said to be certain, except death and taxes.”  Florida’s constitution is not so very permanent, insofar as Article XI, § 3 of the Florida Constitution provides that the people may revise the constitution by initiative (except for limiting the government’s ability to raise revenue).  There is, however, one element of the Florida Constitution that is nearly as inviolate as death and taxes: the Florida homestead.

Homestead in Florida

In general, a homestead is a primary personal residence situated on up to one-half of an acre of land within a municipality and up to one hundred sixty acres of land if located outside a municipality.[1]  In 1997, the Florida Supreme Court decided the case of Snyder v. Davis,[2] in which the Supreme Court noted that Florida homesteads serve three separate (but equally important) purposes with one overarching goal—to preserve the family home for its owner and the owner’s heirs.

First is the exemption from property taxes.[3]  Second is the protection of the homestead from forced sale by judgment creditors.[4]  Third is the restriction on alienation (transfer) of homestead property through deed or devise.[5]  In this article, we are most concerned with the final of the three purposes of homestead protection—in particular, how far does one have to go to abandon the homestead protection.

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Restrictions on Alienation

When a married couple purchases a home in Florida, there is a presumption that it is owned as “tenants by the entirety.”[6]  This treats the husband and wife as owners of an undivided interest in the property.[7]  If the spouses divorce (unless otherwise provided in the divorce decree), the spouses become tenants in common.[8]  A husband and wife generally may not separately devise or transfer the property.[9]

Losing the Homestead Exemption

It takes some effort to lose or abandon a homestead exemption in Florida.  In a February 2019 case out of the Fourth DCA, Yost-Rudge v. A to Z Properties, Inc.,[10] the court examined an interesting fact pattern which dealt with two separate areas of Florida homestead law.

Click here for a PDF of the Yost-Rudge Case.

Facts of the Yost-Rudge Case

First, the husband and wife were, due to “a series of code compliance issues,” the county deeming the property unsafe, and the court ordering them to vacate and enjoining them from living on it, forced to cease living on their homestead for approximately 5 years.borgward-hansa-2161701_1920

Second, at the end of this period, the husband-unbeknownst to his wife-sold the property to the defendant corporation.  The buyer filed suit to quiet title, and the wife answered and asserted that the transfer was legally insufficient without her signature due to her continuing homestead interest in the property. The trial court found that the wife had abandoned the property, and that it was no longer her homestead.  The wife appealed.

Abandonment of Homestead

Once homestead is established, “it continues until the homestead is abandoned or alienated in the manner provided by law. To show abandonment, both the owner and his family must have abandoned the property.”[11]  Consistent with the special status of Florida homestead, a finding of abandonment requires a “strong showing” old-farm-house-2096642_1920of intent not to return to the homestead.[12]

Whether a property has been abandoned and thus lost its homestead protections is determined, case by case, in light of the totality of circumstances.[13]  Only in light of the totality of circumstances, with all doubts resolved against the moving party, can it be determined that the owner has abandoned the property and abandoned its homestead protections.

Stokes v. Whidden

Florida courts have consistently held that a property is not abandoned for the purposes of homestead protection when the owner involuntarily ceases to reside on the property.[14]  For example, the Florida Supreme Court held in Stokes v. Whidden,[15] that a homestead was not abandoned even though the owner of the property had been adjudged insane and committed to a state institution.  In that case, unlike Yost-Rudge, the owner’s family continued to live on the property.[16]

Crain v. Putnam

Still, courts have also upheld homestead protections even when a property has been left completely unoccupied.  One such case is Crain v. Putnam.[17]  There, the homeowner had been absent from the homestead property for around two years after being placed in a nursing home in a vegetative state; nothing was done with the property during this period.[18]  However, the homeowner’s furniture, clothing, and most of her possessions remained on the property, she received mail at the property, and, given her condition, she could not “communicate any intention regarding her residence” or her plans to maintain it as a homestead.[19]

In Crain, the court was asked to determine whether the constitutional homestead tax exemption still applied to the property in light of this absence.  The court concluded that, under the circumstances, the property retained its homestead character.  In doing so, the court in Crain noted that Florida’s homestead protections are not subject to a physical presence requirement, nor are they forfeited when a homeowner involuntarily changes his or her residence.[20]

In re Herr

Another case factually similar to Yost-Rudge and Crain is the Bankruptcy Court for the Southern District of Florida’s decision of In re Herr.[21]  In Herr, the owner’s home was destroyed by a hurricane and the property was rendered uninhabitable after the city demolished the remaining structures on the property.  The property sat for three years without any action by the debtor, but the debtor maintained that he was planning on selling the property and using the proceeds to purchase a new homestead.  Because Florida law requires a “strong showing of a debtor’s intent not to return to his residence” before the homestead can be considered abandoned, the court held that the property retained its homestead protections.[22]

The Yost-Rudge Decision

In Yost-Rudge, the Fourth DCA found that the family was involuntarily “forced off” the property and generally asserted a continuing homestead interest in the property. Additionally, the wife attached to her answer evidence indicating that, after being removed from the property, she was making efforts to rehabilitate it with the intention of returning.  As a consequence, the Fourth DCA found that “numerous court filings from the wife indicated that she was fighting to retain the property…supporting her argument that she did not intend to abandon the property.”[23]

Because there was a conflict of material facts demonstrating that the wife did not intend to abandon her homestead, and given the “special status accorded to the protection of the homestead property,” the Fourth DCA reversed the trial court’s order granting summary judgment and remanded the case back to the trial court for further proceedings consistent with the Fourth DCA’s opinion.[24]

Conclusion

As illustrated by the Fourth DCA’s discussion of the “special status accorded to the protection of homestead property” and the cases cited by the Yost-Rudge opinion, which we have discussed in this post, abandonment of homestead in Florida is often difficult to prove without a showing of manifest intent to permanently abandon the homestead.  Generally, being involuntarily forced from the property, whether by natural disaster or otherwise, is not enough to establish abandonment.

As the court in Herr noted, abandonment requires a “strong showing” of intent not to return to the homestead.[25]  This increased burden to prove abandonment makes sense in the general scheme of the broad protections provided by Florida’s Constitution and statutes.  Because homestead is so very valued and protected in Florida, it follows that to prove abandonment a party must make an extraordinary showing.

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[1] Florida Constitution, Art. X, § 4(a)(1).  A homestead also encompasses personal property, but only up to the value of one thousand dollars.

[2] 699 So.2d 999, 1001-02 (Fla. 1997).

[3] See Fla. Stat. § 196.031(1)(a).  The first $25,000 is an exemption from all ad valorem taxation (except assessments for special benefits), and the next $25,000 is for all levies, except school district levies.

[4] Fla. Const., Art. X, § 4(a).  Obligations entered into for the purchase of the homestead or improvements or repairs thereof may attach to the homestead.  Further, obligations contracted for personal services related to the house or the land (“labor performed on the realty”) may attach to the homestead.

[5] Fla. Const., Art. X, § 4(a)(2)(C); Fla. Stat. § 732.4015(1).

[6] First Nat’l Bank of Leesburg v. Hector Supply Co., 254 So.2d 777 (Fla. 1971).

[7] Sitomer v. Orlan, 660 So.2d 1111, 1113 (Fla. 4th DCA 1995) (noting that each spouse is “seized of the whole or the entirety, and not a share…or divisible part”).

[8] Fla. Stat. § 689.15.

[9] See, Fla. Const., Art X, § 4(a)(2)(C); Fla. Stat. § 732.4015(1).

[10] 263 So.3d 95 (Fla. 4th DCA 2019).

[11] Coy v. Mango Bay Prop. and Invs., Inc., 963 So.2d 873, 878 (Fla. 4th DCA 2007).

[12] In re Herr, 197 B.R. 939, 941 (Bankr. S.D. Fla. 1996).

[13] Beensen v. Burgess, 218 So.2d 517, 519 (Fla. 4th DCA 1969).

[14] In re Estate of Melisi, 440 So.2d 584, 585 (Fla. 4th DCA 1983).

[15] 122 So. 566 (Fla. 1929).

[16] Id.; see also Dean v. Heimbach, 409 So.2d 157 (Fla. 1st DCA 1982) (finding homestead not abandoned when father had to leave county as condition of bail but intended to return and family continued to live on property).

[17] 687 So. 2d 1325 (Fla. 4th DCA 1997).

[18] Id. at 1326.

[19] Id.

[20] Id.

[21] 197 B.R. at 941.  Although Herr is a federal decision, it relied on Florida state law.

[22] Id.

[23] Yost-Rudge, 263 So.3d at 99.

[24] Id.

[25] In re Herr, 197 B.R. 939, 941 (Bankr. S.D. Fla. 1996).

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