Homestead Exemption: Do Creditors Have To File Homestead Designation With Government?
I was asked by a client this week- as I have been asked many times over the years- whether a new Florida resident has to file something with their county court in order to register their homestead as being exempt from civil creditors. Sections
222.01and
222.02of the Florida Statutes provide means by which a Florida resident may claim homestead exemption and notify judgment creditors of the property’s exempt status either before or after a judgment has been entered against the them. The question was whether these statutory procedures are required to exempt homestead from creditors.
The answer is no. Florida courts have held that no declaration or any other act of a property owner is required to make the owner’s primary Florida residence an exempt asset if the facts otherwise indicate that the property is the owner’s domicile. I know of no case in either state court or bankruptcy court which has held that failure to use the procedures of Sections 222.01 or 222.02 disqualified a debtor’s homestead exemption. The statutory procedures are expressly option: they state that people “may” use these procedures. In a court case, if you show that a particular Florida property is your primary residence you will be afforded homestead protection. I am not stating that using the declarations and procedures in these statutes will harm your position; but, they are not required and are not as a practical matter given substantial weight in court.
I think it is better to file them for legal declarations. I may not know something about this topic, but I know that legal processes prevents you from being sued.
Your information is excellent. Let me add one more twist. If a husband and wife own a home in IL titled tenants by its entirety and one spouse is relocated to FL for business and becomes a FL resident (the other spouse remains a resident of IL). The couple then buys a condo in FL jointly but keep their homeowners exemption and property in IL. Does the property in IL still receive the same protections because it is titled tenents by entirety in a bankruptcy? What protections are given to the FL homestead property?
Do your homework counsellor...failure to file a “preventive“ prelevy designation of homestead under § 222.01 does not preclude a party from asserting homestead rights once he/she receives word that his/her home is about to be auctioned off to strangers to satisfy a debt. Absent notice that we are in need of this protection against forced sale of our homes, few of us are likely to travel down to the courthouse and make a § 222.01 designation just in case it might prove handy some day. Compliance with either statute recording a prelevy designation in circuit court under § 222.01 or filing a postlevy sworn statement with the levying officer under § 222.02 is effective to set apart and designate one‘s homestead." 402 So. 2d 486