The Florida homestead exemption is laid out in Art. X, §4 of the Florida Constitution. Article X, Section 4 states that a Florida resident is exempt from the forced sale of his or her homestead real property from a judgment based on money, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the property if the property meets the below requirements:

1. Ownership: The property is owned by a natural person. Some trusts qualify if they meet certain requirements;
2. Residency: The real property must be located in the State of Florida, and the debtor must be a Florida resident to benefit from the asset protection of the homestead exemption. This means that the homeowner spends more time in Florida than elsewhere and communicates to the world that he or she is a Florida resident;
3. Size: If located outside a municipality, the homestead property can be up to 160 acres of contiguous land and improvements. If located within a municipality, then the homestead exemption will apply to the one-half acre of contiguous land, upon which the residence of the owner or the owner’s family is located. If you are in a condo, then it is likely you are safe. The calculation is the square footage of the condominium land divided by the unit’s percentage interest in the common elements plus the square footage of the unit.

Burden on the Creditor to Prove Not Homestead

Homestead laws are heavily in favor of the Florida homeowner, so it will be the burden of the creditor seeking to get around the Florida homestead protection to establish that the real estate is not the debtor’s homestead.

Response to Judgment Lien

If a creditor obtains a judgment and files a certified copy of the judgment in the public records of the county where the property is located, then the homeowner may respond with filing a Notice of Homestead form described in Florida Statute §222.01 in preparation for the sale or mortgage of the property. The notice of homestead provides a statement of the residence being the debtor’s homestead and prompts the judgment lien creditor to file suit within 45 days to challenge the homestead declaration. Failure of the judgment lien creditor to challenge within the 45 days means the property can be sold or mortgaged without concern for the judgment lien.

Though creditors may think it is unfair, the Florida homestead exemption does not make the protection contingent on the amount of time the homeowner has owned the home or the intent when purchasing the property.

Bankruptcy limits to Homestead Protection

The protection the Florida homestead exemption affords the homeowner is trimmed when the homeowner becomes a debtor in bankruptcy. The federal bankruptcy laws restrict the conversion of non-exempt assets in exempt homestead property, requires that the debtor live in Florida for 730 days (2 years) before being able to claim the Florida homestead exemption, and limits the value of the exemption to $125,000 when the property is owned for less than 1215 days.

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