Homestead is found in 3 different contexts under the Florida Constitution: (i) taxation in Article VII, Section 6; (ii) creditor protection in Article X, Section 4(a) and (b); and (iii) devise and descent in Article X, Section 4(c). This post follows my post on taxation and brings us to creditor protection.
Exemption from Forced Sale and Lien
Article X, Section 4 of the Florida Constitution provides that the homestead is exempt from forced sale by a court and that no judgment shall constitute a lien on the property except for payment of taxes and assessments, and other contractual obligation for the purchase, improvement or repair of the property.
Definition of Homestead for Article X Creditor Protection Purposes
For these purposes, the definition of homestead is provided at Section 4(a)(1). In this context, the homestead must be an interest in real property that is no more than (i) 160 acres of contiguous (uninterrupted) land if outside a municipality, or (ii) one-half acre of contiguous land if within a municipality. As with the tax exemption, the owner must make the property their primary residence. Many types of residences qualify, including mobile homes. Although often confused, an active homestead property tax exemption is not required for creditor protection (and vice versa).
It is important to note that there has been inconsistent treatment where a homestead is held in a revocable trust. If you intend to re-title your homestead property or are concerned about protection of your homestead from creditors, it is important that you consult with a Florida real estate or estate planning attorney.
Statutory Homestead Notice Procedure
Section 222.01 of the Florida Statutes provides a notice procedure that can be followed when a certified copy of a judgment has been recorded in the public records and become a lien on the real property of the debtor in that county where the certified judgment is recorded. To exclude the homestead from levy under such a lien, the property owner may file a notice as provided in the statute. That notice is served by the clerk of court on the judgement lien holder identified in the notice, and that lien holder will have 45 days to file an action to enforce its lien, failing which its lien will not attach to the homestead.
This procedure is generally used for title purposes when a sale or refinance is contemplated (see the specific references to a conveyance or mortgage in the statutory form of notice). If you think that you need to use this procedure, it is recommended that you first speak with a Florida real estate attorney.
Homestead Creditor Protection of a Decedent
Section 4(b) provides that the homestead exemption from forced sale inures to the surviving spouse or heirs of the owner. In simple terms, this is why it is common in probate proceedings to seek an order determining the homestead status of property, ensuring that this protection carries forward to the heirs of a decedent.
Interestingly, the homestead creditor protection has been interpreted to extend to the proceeds of the sale of a homestead when those proceeds are to be reinvested within a reasonable time in a replacement homestead. The general concept is that protection should not lapse and expose the liquidated equity when a resident is in the process of changing residences. If you will be relying on this protection, it is recommended that you consult with a Florida real estate attorney prior to closing.
This post provides only a summary of general information. As with any homestead issue, there are numerous technical compliance requirements involved with the above exemptions. If you need assistance with creditor claims against a homestead, contact a Florida real estate attorney.