Court Holds that Obtaining California Driver’s License and Registering to Vote in California Was Not Alienation of Florida Homestead
Florida is well known for its natural beauty and also for its protection afforded to its citizen’s homesteads. These protections have been in place since Florida adopted its state Constitution in 1885. Florida’s homestead exemption is found in Article X, §4 of the Florida Constitution, and provides, in relevant part:
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for the house, field or other labor performed on the reality, the following property owned by a natural person:
(1) 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 …
Often, lawyers are called upon to either prove that a piece of real property either is or is not a person’s homestead for purposes of enforcing judgments by creditors against a person’s homestead property. If the property is a person’s homestead, then a lien cannot attach, however, if it is not the homestead, then it is generally available for attachment by a debtor’s creditors. Frequently, the creditor will argue that the Florida homeowner has abandoned their homestead status by moving to another state.
It is generally agreed by lawyers that a homestead is abandoned when it no longer serves as the owner’s “bona fide home and place of permanent residence.” The Florida Supreme Court has held that “[t]he mere intention, at some future day, to repair and occupy [property claimed as homestead], where such intention is not manifested by acts as well as words, is not sufficient.” Semple vl Semple, 82 Fla. 138 (1921). “The Debtor’s expression of his intention is probative, but if an owner acts inconsistently with a self-professed intention to establish a homestead, a claim for exemption may fail.”
The question of whether a debtor had abandoned her Florida homestead status was raised in In re Lloyd, 394 B.R. 605 (Bankr. S.D.Fla. 2008), a case in which the Debtor, Patricia Jean Lloyd claimed as exempt under Florida’s homestead law her real property located in Key West. Her creditors objected and contending that Ms. Lloyd abandoned her Florida homestead when she leased the property and moved to California.
At a hearing, it was established, among other things, that Ms. Lloyd and her minor children moved from Key West to California to live with her high school sweetheart in his California home. Ms. Lloyd enrolled her two children in school in California, opened bank accounts in California and obtained a California driver’s license. Ms. Lloyd also registered to vote in Los Angeles County, California, using her California address as her domicile/principal residence and executed a sworn affidavit/registration form to that effect. Ms. Lloyd did not, however, surrender her Florida voter’s registration card.
Further, Ms. Lloyd subsequently retained a real estate broker who leased the Key West Property to a family for a term of one year. While she was living in California, Ms. Lloyd made many trips to Key West and stayed at hotels in the Key West area when she visited because the Key West Property was being leased.
The issue came to the Court’s attention when one of Ms. Lloyd’s creditors obtained a judgment against her, domesticated the judgment in Florida, and tried to attach the initial judgment lien against the Key West Property.
Surprisingly, the Florida Bankruptcy Court reviewed the evidence and found that Ms. Lloyd, under the facts outlined above, had not abandoned her homestead status, and the creditor could not attach the property in Key West:
“[T]he Court believes the Debtor never intended to abandon her homestead interest in the Key West Property, and Debtor’s actions are consistent with her intent to keep the Key West Property as her homestead. She came and went to Florida while living in California, for the purpose of fixing up the Key West Property, keeping it in liveable condition, and leasing the property in her absence. The Debtor worked on fixing up the Key West Property both before and after Hurricane Wilma. Although she placed the property on the market for sale after the hurricane, she never did sell the property and continued to tend to its condition and maintenance. In fact, as she testified, the reason she moved from Key West back to California was that it was easier for her to make a living in California than it was in Key West. From the testimony and evidence, it is clear the Debtor considers her homestead to be in Florida, in Key West, at the Key West Property.”
“Although she moved to California to pursue a romantic relationship, the Debtor never did establish a permanent residence in California. When the relationship ended, the Debtor moved in with her mother and thereafter with friends. She is now living with her family in a rented duplex on a month to month basis. This Court has previously held that a “ ‘temporary absence of an owner for reasons of health, business or recreation from his residence and the temporary rental of his home during this absence do not necessarily demonstrate an intent to abandon the premises.’ ” This Debtor has not established a “domicile” at some other place, to the exclusion of the Key West Property. She did not buy a new homestead in California, choosing instead to live with others in their homes. The Court does not believe that the evidence proves the Debtor intended to abandon the Key West Property and forsake the Florida homestead for one in California.”