Homestead Protection for Foreign Businessman
A new client visited with me and presented a unique and interesting asset protection issue. The client is a British citizen who is living in Florida. He has a temporary immigration visa which is renewable. He owns approximately 120 contiguous acres of land consisting of six separate legal parcels. His primary residence, owned jointly with his wife, is situated on one parcel. Two separate parcels are used exclusively for a commercial business. The property is worth over one million dollars.
Homestead protection is not available because the client does not have a permanent visa. Homestead protection requires that the debtor has the intent to make the residence his permanent home. Courts have held that such intent cannot exist for people who lack the legal basis to permanently reside in Florida. A second problem with homestead for this client is the commercial use of part of the property. Although homestead extends to 160 contiguous acres in most cases, it only applies to residential use. Here, there are separate and distinct parcels which although contiguous to the residential parcel, themselves are used exclusively for business purposes. Even if the client had a permanent visa, it is likely that the only property which would be deemed homestead is that parcel of land on which his primary residence is located.
I've read the case law that a temporary visa holder will not be able to claim homestead in FL. However, I've also read the case law that says a married property owner cannot convey the homestead without the consent and signature of the spouse. My question is: If a married U.S. citizen wishes to convey his homestead owned only by him prior to his marriage, does his wife who holds a temporary visa have a homestead claim in the property? In other words, can the wife bar her husband's conveyance by refusing to sign-off on the deed, claiming her homestead protection comes from her marriage, regardless of her visa status?
I am no lawyer but I read the florida constitution, I understand there are two different florida homestead exemptions that clearly differentiate a resident from a permanent resident:
The first applies to a property exempt from sale as long as a FL RESIDENT lives there.
The second applies to a deduction from property taxes if the FL PERMANENT RESIDENT lives there.
Can somebody please clarify?
thanks
Marco