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Florida Homestead Creditor Protection

FLORIDA HOMESTEAD CREDITOR PROTECTION

Homestead creditor protection is a unique benefit afforded to Florida residents. Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by judgment creditors.   In other words, a creditor cannot force the sale of one's homestead to satisfy a judgment.   Generally, there is no monetary cap associated with the exemption.  As such, a Florida resident may invest millions of dollars into their home and receive full protection.  Further, single family homes are not the only type of properties to qualify.  Florida courts have also extended homestead protection to condominiums, manufactured homes, and mobile homes.

Homestead is defined as one's principal place of residence up to one-half acre within a municipality and up to 160 contiguous acres outside a municipality.  

To qualify for homestead protection, one must be a permanent Florida resident whose homestead property is his or her primary place of residence.  The protection attaches the day of ownership and occupancy of homestead eligible property provided there is an intent to make it one's permanent Florida home.  Second homes or investment properties are ineligible for homestead protection.   Also, homestead property must be owned only by "natural persons."  As such, properties titled in the name of limited liability companies, corporations, partnerships, irrevocable trusts and other entity forms will not qualify as homestead property.  Courts, however, have ruled that property owned by living trusts can be homestead property as well as 99-year leasehold interests.  The "natural persons" ownership requirement is often overlooked by individuals or out-of-state practitioners who are unfamiliar with Florida homestead protection laws and attempt to convey otherwise qualified homestead properties to asset protected entities used in other contexts.   

Additionally, adding a co-owner who does not permanently reside in the homestead property may jeopardize the homestead status.  In this instance, a judgment creditor of such co-owner can reach the co-owner's ownership share of the homestead and force its sale. 

Finally, the homestead protection does not guard against consensual liens such as mortgages, liens for real estate taxes, IRS tax liens and mechanics' and laborers' liens for work performed at the home. 

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The Wellington, Florida Law Firm of Gonzalez Shenkman & Buckstein, P.L. provides experienced legal representation in real estate, business, estate planning, asset protection planning, employment, and litigation matters and serves clients in the cities of Wellington, Boca Raton, Delray Beach, West Palm Beach, and communities throughout Palm Beach, Broward, Martin, and Miami-Dade Counties.

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