MIAMI BUSINESS LITIGATION: FLORIDA HOMESTEAD PROTECTIONS

Florida’s broad homestead protection laws are enshrined in Florida’s Constitution. They offer unique asset protection most states do not, and prevent most creditors from levying against a debtor’s home so long as that home qualifies as a homestead. Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Florida’s constitution provides that:

There shall be exempt from forced sale under process of any court,… the following property owned by a natural person:

a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family.

Fla. Const. Art. X. Florida’s expansive homestead protections are designed to protect families from poverty by preserving their homes. See In re Kellogg, 197 F.3d 1116 (11th Cir. 1999); In re Cole, 559 B.R. 919 (Bankr. M.D. Fla. 2016) (Florida’s Constitution “provides that the homestead exemption shall inure to the benefit of an owner’s heirs. There is no question that the Brookhaven Drive property was the mother’s homestead and that her homestead exemption inures to the Debtor’s benefit.”). Accordingly, the homestead protection is construed liberally to achieve the intended result. Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006) (“Florida courts have consistently emphasized that the homestead exemption is to be liberally construed in the interest of protecting the family home against the claims of creditors.”).

The criteria needed to qualify for Florida’s homestead exemption are simple. A debtor must have an ownership interest in the residence at issue, the debtor or debtor’s family must actually use and occupy the residence, and the debtor must intend to live in the residence permanently. In re Saad, 642 B.R.329 (Bankr. M.D. Fla. 2022). Once the requirements are satisfied, there is little a debtor can do to lose the protection absent abandonment. Bank of Am., N.A. v. Elnicki, 2020 WL 6870740 (M.D. Fla. Sept. 22, 2020) (“[T]here is little that a homeowner can do under Florida law to lose the protection of homestead.”); In re Klaiber, 265 B.R. 290 (Bankr. M.D. Fla. 2001) (The “permanent abandonment of the homestead as a bona fide place of permanent abode strips the property of its homestead character.”). But even here, temporary abandonment will not erode homestead protections if the debtor intends to return and continue residing in the premises. See In re Lloyd, 394 B.R. 605, 610 (Bankr. S.D. Fla. 2008) (The “Court believes the Debtor never intended to abandon her homestead interest… and Debtor’s actions are consistent with her intent to keep the Key West Property as her homestead.”). Courts have found this intent exists when the debtor temporarily leaves his or her property for financial, health, or family reasons. See In re Imprasert, 86 B.R. 721 (Bankr. M.D. Fla. 1988).

Florida’s homestead laws are so broad they can protect non-exempt assets used to purchase a homestead or the proceeds from the sale of a homestead. In Havoco of Am., Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001), Florida’s Supreme Court allowed a debtor to purchase a homestead using non-exempt assets even though the debtor purchased the homestead to place his assets beyond the reach of the creditor. Id. (“While we are certainly loathe to provide constitutional sanction to the conduct alleged by the petitioner and implicated by the certified question, this Court is powerless to depart from the plain language of article X, section 4.”). And In re Beebe, 224 B.R. 817 (Bankr. N.D. Fla. 1998), the court allowed the debtor to sell his homestead and keep the sale proceeds so long as the debtor intended to reinvest those proceeds in the purchase of another homestead within a reasonable amount of time. Id. (It “is clear that if they had sold the home prior to moving, the proceeds would be exempt so long as they intended to use those proceeds to purchase a new homestead within a reasonable period of time.”). Given the deference courts provide to Florida’s homestead protection laws, a debtor might be inclined to convert his assets into a homestead to protect those assets from creditors.

Peter Mavrick is a Miami business litigation lawyer, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.