Florida Homestead Exemption Applies Only to U.S. Citizens and Permanent ResidentsA bankruptcy judge in the Middle District of Florida recently sustained a Chapter 7 trustee’s objection to a non-Florida resident debtor’s attempted claim of the Florida homestead exemption. Although the debtor had lived in her Florida home for more than 20 years, she was not a United States citizen or a permanent resident with a so-called “green card.” Additionally, none of the debtor’s family members also living in the home were citizens or permanent residents.

When she filed for bankruptcy, the debtor claimed an exemption in her home pursuant to the Florida homestead exemption. If allowed, this exemption would permit the debtor to exempt her residence from the bankruptcy estate and therefore prevent the Chapter 7 trustee from liquidating any equity in her residence to be distributed to her creditors.

In sustaining the Chapter 7 trustee’s objection to the debtor’s claimed Florida homestead exemption, the bankruptcy court applied a two-part test, which includes both an objective and a subjective analysis. The objective analysis looks to whether a homeowner actually uses, lives in, and occupies the residence. The subjective analysis determines whether a homeowner manifests an actual intent to permanently live in the residence.

In this case, the bankruptcy court found that the debtor met the objective test because she had lived in the residence for over 20 years. However, the court held that the debtor did not satisfy the subjective test. Because the debtor was not a United States citizen or permanent resident, the debtor could not establish an actual intent to live in the United States or in the home forever.

The bankruptcy court noted that if the debtor’s family members who also lived in the home were United States citizens or permanent residents, the result might have been different. However, in this case, although the debtor’s daughter might one day become a United States citizen under the Deferred Action for Childhood Arrivals (DACA), because she was not currently a citizen or permanent resident, her status could not be used to claim the Florida homestead exemption. Because the debtor and none of her family residents in the home were currently United States citizens or permanent residents, the Florida homestead exemption could not be claimed.

Takeaway

Florida has a very powerful homestead exemption, which is set forth in Article X, Section 4, of the Florida Constitution. While it is generally not cost efficient for mortgage servicers, investors, or other creditors to challenge claims under the Florida homestead exemption, this case sets forth a fact pattern in which such challenges would likely prevail. In situations where a homestead exemption is raised, creditors should analyze the viability of asserting an objection and attempting to defeat the exemption by challenging the homeowner’s residency status and actual intent to permanently reside in the property.

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Photo of Elizabeth R. Brusa Elizabeth R. Brusa

Elizabeth Brusa is an associate in the Banking and Financial Services Practice Group focusing on small dollar lending, bankruptcy, and privacy, security and innovation. She is a Certified Information Privacy Professional for the U.S. Private-Sector (CIPP/US). Elizabeth counsels financial services clients on matters…

Elizabeth Brusa is an associate in the Banking and Financial Services Practice Group focusing on small dollar lending, bankruptcy, and privacy, security and innovation. She is a Certified Information Privacy Professional for the U.S. Private-Sector (CIPP/US). Elizabeth counsels financial services clients on matters related to bankruptcy proceedings, bankruptcy fraud and abuse, and Chapter 11 filings.

Photo of Lauren G. Raines Lauren G. Raines

Lauren Raines is a member of the Banking and Financial Services Practice Group and the Real Estate Practice Group. Lauren divides her time between transactional and litigation matters and regularly handles both commercial lending transactions and financial services litigation. This hybrid practice has…

Lauren Raines is a member of the Banking and Financial Services Practice Group and the Real Estate Practice Group. Lauren divides her time between transactional and litigation matters and regularly handles both commercial lending transactions and financial services litigation. This hybrid practice has allowed Lauren to better serve her transactional clients by advising them on the potential areas of conflict that could arise later in litigation, and to effectively advocate for her litigation clients due to her broad understanding of real estate principles.

Lauren has successfully handled countless contested commercial and consumer mortgage foreclosure trials for banks and mortgage servicers across the state of Florida. Lauren also has experience handling lender liability claims, usury actions, lien priority claims, fraudulent transfer claims, and violations of federal and Florida consumer protection statutes. Lauren also regularly represents merchant cash advance companies in enforcement actions, bankruptcy litigation and defending against usury, RICO, preference and lien avoidance claims.