In my November and December posts, I discussed the basics regarding protection of your Florida Homestead from forced sale by creditors and some of the exceptions.
A recent decision from the Second District Court of Appeal of Florida provides a good reminder of another Florida Homestead pitfall.
The Florida Constitution, Article X, Section 4 provides as follows: “There shall be exempt from forced sale under process of any court, and no judgment, decree[,] or execution shall be a lien thereon, … property owned by a natural person.” As such, the plain language of the Florida Constitution requires that the owner of the property be a natural person to claim the homestead exemption.
While there is case authority which provides that property held in a revocable living trust may qualify for homestead protection, property titled in the name of a corporation, a limited liability company, or a partnership doesn’t qualify. This is because an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode, to qualify for Florida’s homestead exemption. Be careful how you title your home!
Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.