Declaration or Designation of
Homestead Explanation
You
can protect your home, its equity and your real property against
future financial disaster, and perhaps save a lot of money now!
Welcome to the most
important website for homeowners in Florida. We are here to tell you
about Homestead Declaration. It’s a simple legal document that will
protect your most valuable asset – YOUR HOME EQUITY - from liens,
judgments and unsecured creditors, and it has nothing to do with your local county
homestead property tax exemption. That is a separate law altogether...
Statistics in 2014 show that
3.5 out every 5 homeowners in America have, or will have, a lien or
judgment placed against "any and all property" which usually
includes their home. Most homeowners
have absolutely no clue of how to protect their home and its equity against
liens or judgments before they happen, nor do they realize that it
will cost them a lot of time and money to have the lien or judgment
made unenforceable before a homeowner can sell or refinance their
home and keep all of the proceeds from the sale or refinance (Note:
Do not let ANYONE tell you it can be 'removed', it can't. It
can only be made unenforceable against your home and it's
equity).
Our goal at Florida Homestead Services is to inform every
homeowner of the importance of having a Homestead
Declaration filed BEFORE any judgment or lien is filed against their
home. A legally sufficient homestead declaration claim made by
you does not subject your home equity to liens, attachments,
judgments, or unsecured creditors, and the process is protected by law in
almost every state in America.
With the exception of 4 states that have no homestead laws, the rest
of the United States have laws to protect the homestead for the
benefit of its citizens. No matter what state you may reside in, all
homeowners should have this protection of their home.
Our FAQ page will answer most of your
questions about Homestead Declaration and help you understand the
importance of this law. You can very well ignore this
extremely powerful protection of your home and its equity, and you
may never require it, but why gamble with your home's equity when it
is inexpensive, simple, and requires only a few minutes of your time
to obtain?
Synopsis
Homestead
for tax purposes and homestead for purposes of creditor protection
and exemption from forced sale, although related because both are
part of the overall scheme of providing for preservation of the
family dwelling, are not synonymous regardless of popular opinion. Florida
has two distinct laws regarding a homestead...the exemption of a
homestead from forced sale and from having a judgment or execution
being a lien thereon differs from homestead exemption as defined for
tax purposes. This exemption is governed by Article X, Section 4,
Constitution of the State of Florida (1968), which exempts a
homestead from forced sale and provides that no judgment or
execution shall be a lien thereon. Clearly, this is a different
thing than homestead exemption, as defined for tax purposes.
Don't let anyone tell you that there is nothing you need
to do to protect your homestead from creditors. It is simply not
true. That is almost like saying 'there is nothing you need to do to
protect yourself from criminals.'
A
'Designation or Declaration of Homestead' consists of a legal
document which 'sets apart' your homestead and can protect
your home and real property before any calamity occurs or in times
of economic hardship or from most liens, judgments and foreclosure.
It has nothing to do with the process of filing an application for
local, city or state government ad valorem (homestead property tax
exemption) property tax breaks . . . rather, it's a complex and
detailed legal claim that can prevent the attachment of your land
and dwelling, or its equity, by creditors, judgments, liens or
lawsuits, but you must make the claim under the statutory legal
requirements of the law before the judgment, lien or levy in order
to take full advantage of the law and make it more effective. You
can also assert the legal claim to 'set apart' or designate your
real property after a judgment, lien or levy, but the process is
lengthy, costly and more difficult and will ensue during or after a
mandatory court battle, which can cost thousands in attorney's fees
and court costs.
The
Florida 'homestead protection' exemption statute allows homeowners to
'designate' or 'set apart' their primary residence to
protect them from a forced sale. The law also protects the equity in a homestead
property including the proceeds from a sale or re-finance in order
to satisfy creditors. The local
county property tax appraisers office is unable to answer your
questions concerning 'designation of homestead' for protection from
forced sale. They only deal with property tax exemptions. Hopefully, Florida Homestead Services can answer
each and every one of your questions...Check out our Frequently
Asked Questions
HERE.
Homestead
exemption in Florida
Homestead
rights do not exist under common law, but they have been
enacted in at least 27 states: Alabama, Arizona, Arkansas,
California, Florida,
Georgia, Idaho, Illinois, Kansas, Louisiana, Michigan, Minnesota,
Mississippi, Missouri, Montana, North
Carolina, North Dakota, Ohio, Oklahoma,
Oregon, South Dakota, Texas, Vermont,
Washington, West Virginia, Wisconsin, and Wyoming.
If you own, and live on property in any of these states, you should
definitely take the time to claim your real property and file this
important legal claim. The fee for doing so is very nominal, and the
forms and complete services for the State of Florida are provided
exclusively by Florida Homestead Services, LLC. No other
independent business service provider in the State of Florida provides the
unique services that we do.
Florida's homestead exemption provisions are among the most
protective in the United States, and refer to two similar, but
unrelated provisions of the Florida Constitution. The creditor
protection clause of Article X gives no limit to the value of
property that can be protected from creditors. The tax exemption
clause of Article VI renders property tax-free certain dollar
amounts of the value of the homestead, as well as up to $1,000 of
personal property. Both provisions apply automatically upon the
establishment of a primary residence in Florida, but to reap the tax
assessment benefits it must be claimed by a filing with the state.
It can be lost if the homeowner abandons use of the homestead as a
primary residence.
Scope of the protection
Florida's creditor protection homestead provision is one of the
broadest in the United States. The value of the property that can be
protected is unlimited, so long as the property occupies no more
than ½ acre (2,000 m²) within a municipality, or 160 acres
(650,000 m²) outside of a municipality. The provision is written
into the Florida Constitution, Article X, section 4, so it can not
be removed without a constitutional amendment.
Because of the scope of the protection afforded, persons from other
states with heavy debts or large court judgments against them have
been known to purchase expensive estates in Florida, a famous
example being O.J. Simpson and Scott Sullivan.
One event that can drastically affect the value of a homestead is
municipal incorporation. If a 160 acre (650,000 m²) non-municipal
homestead is on land that is later incorporated into a municipality,
the homestead will be grandfathered in and remain protected for the
owner and his heirs. However, for any future purchasers of all or
part of the property, the protected land will drop to the ½ acre
(2,000 m²) allowed within a municipality.
Protection from creditors
The homestead exemption offers virtually absolute protection from
forced sale to meet the demands of creditors, except under three
special circumstances listed below.
One unique feature of Florida's homestead exemption is that it
attaches to proceeds from the sale of a home, if the homeowner
intends to use those proceeds to establish a new Florida homestead
within a reasonable time. Therefore, if the owner of a $1,000,000
home sells that home and puts the money in a bank account, that
money is still protected by the homestead exemption, so long as the
homeowner has a bona fide intent to use it to purchase another home
in Florida entitled to the exemption. This protection is lost if the
funds are commingled with other funds not designated for such a
purchase. Also, the protection only extends to the amount the owner
intends to invest in a new homestead - if the owner of a $1,000,000
home sells that home, and makes clear his intent to purchase a
$750,000 home, the remaining $250,000 will lose its protection.
One
prominent Florida court appellate judge, Judge Barkdull, has ruled...'Absent
notice that we are in need of this great protection against forced
sale of our homes, few of us are likely to travel down to the
courthouse and make a homestead declaration or designation just in
case it might prove handy some day'...but
this is exactly what every homeowner in Florida should do! Take the
advice of a judge...
Exceptions for certain creditors
Three types of creditors can still force the sale of a homestead to
collect debts owed to them. These are:
The State of Florida and its counties or municipalities, to collect
past due property taxes;
Parties to whom the property was specifically pledged as credit for
a mortgage;
Mechanics who are owed money for work performed in repairing or
improving the property.
Because the homestead exemption is state law, it can also be
over-ridden by the United States federal government, to satisfy
federal income tax debts for example, although this has rarely
occurred.
Protection to surviving spouse or minor child
The provision also protects a spouse in several ways. First, it
restrains the homeowner from conveying the property without the
approval of their spouse, even if the property is entirely in the
name of one spouse, or was purchased entirely from funds of one
spouse. The provision also prohibits a spouse from devising the
property by will, if the homeowner is survived by a spouse or a
minor child. A spouse may waive these rights with respect to the
will, but a minor child is not competent to do so. Finally, the
homestead exemption automatically attaches to the surviving spouse,
so the property will never be exposed to the creditors of either
spouse because of the death of the other.
Also,
should one spouse die, the survivor and any children are protected
under the exemption until the survivor dies and the youngest child
is of age. And naturally, the homestead asset protection exemption
terminates if you sell the property or rent the entire property (not
a portion rented out if you still reside there) to another which
constitutes legal 'abandonment'. The exemption does not terminate on
the homeowners demise, instead the protection passes to his or her
heirs. Trusts in order to avoid probate may be very useful in this situation, but the trust
and deed must contain specific language in order to claim the
exemption.
Contact us on this issue. Claims can be filed on
successive dwelling places, but only on one site at a time.
Public Purpose
Florida's
homestead
exemption serves the compelling public purpose of promoting
stability and welfare of the state and its citizens by securing to
the householder(s) a home, so that householder may live beyond the
reach of financial misfortune. Under Florida
law,
homestead exemption may not be used to shield property from: (1)
payment of property taxes and assessments thereon; (2) obligations
contracted for the purchase, improvement or repair thereof (Secured
Mortgage or a Contractor's lien); or (3) obligations contracted for
house, field or other labor or services performed on realty
(Mechanic's or Contractor's lien agreed to under the contract). The
right to contract is expressly guaranteed by the Florida
Constitution and the right to contract and to use one’s property
as one wills are fundamental rights guaranteed by the constitution
of the United States and the constitution of the State of Florida.
Though
they vary from one state to another, homestead statutes are similar
in their intent. They are designed to preserve family homes which
might otherwise be taken in times of monetary misfortune, loss of
income or upon the death of the head of the household and to prevent
citizens from becoming a financial burden on the public and of the
state. In general, this protection is available only if the
declaration of homestead claim is filed in advance of such a
catastrophe. Of course, a legal judgment resulting from business
losses, auto accidents, or suddenly inherited debts could wipe out a
family's savings and assets, but with the safeguards provided by the
homestead statutes, their house and land and their income would be
fully protected up to the amount of exemption allowed by their state
but only if the claim is legally asserted in writing.
Say,
for example, that your state has a homestead exemption law, and your
creditors, a lawyer, an ex-spouse, a creditor of any type, code
enforcement or a court judgment under execution are demanding money
from you. If your property is worth money or if you have any equity
in your property, they can't attach or force the sale of your home
as payment for the debt as long as you make a prior declaration of
homestead claim. On the other hand, if you owe money and your home
is worth more than what you owe, your creditors cannot get a court
order that forces you to sell, but again, only if you have claimed
your legal protection by designating your real property and 'setting
it apart' in writing in order to protect it. This is where Florida
Homestead Services comes into play. Even then, you still have some
protection, since after the sale you will be covered by your
homestead declaration if you have filed it. As a general rule, a
person can file a declaration of homestead at any time before the
date of a forced sale, and such filing will protect the property
from forced sale. A declaration of homestead may be filed during the
pendency of litigation at any time before the judgment has become a
lien on property; if it is filed after the rendition of the
judgment, it will defeat an existing attachment lien; if it is filed
after levy of execution and there is no valid and subsisting
judgment lien, the property is not subject to execution sale.
The
exemption accorded by the constitutional provision has been part of the Florida
Constitution for over a hundred years. In 1884, the Florida Supreme
Court set forth the policy considerations underlying this provision:
'True, a man may sell his personal property, or may pledge or
mortgage it, but in that case the property sold or pledged is
designated and identified and a special interest is created in favor
of a creditor in the particular article pledged or mortgaged, and in
no State is this power of the owner of personalty denied. The object
of exemption laws is to protect people of limited means and their
families in the enjoyment of so much property as may be necessary to
prevent absolute pauperism and want, and against the consequence of
ill advised promises which their lack of judgment and discretion may
have led them to make, or which they may have been induced to enter
into by the persuasions of others.'
The courts confirm that the Florida Constitution protects the
homestead against every type of claim and judgment except those
specifically mentioned in the constitutional provision itself, and
that other than for the purposes stated in this provision, cannot be
waived, observing that protection of homestead from alienation
cannot be waived by contract or otherwise. In honoring an agreement
or a contract made whereby a party “knowingly, voluntarily and
intelligently” waives his or her constitutional right, a waiver of
this type signed by a party is contrary to the policy of this State.
Florida's concern is well-taken and is supported by the fact that
one hundred years after the pronouncement in court precedent, the
people of the State of Florida, in a general election held in
November 1984, amended their constitution to dramatically expand the
class of persons who could take advantage of Florida’s homestead
law by substituting the qualifying phrase “a natural person” for
the “head of a family” qualifier that had existed in every
version of the constitutional provision from its first adoption in
1868.
Since that time, any resident of the state, whether single,
divorced, or widowed, has had the legal capacity to assert the
shield of the exemption of homestead property from a forced sale
without regard to familial standing or other status or station in
life. Thereafter, the decisions from our Supreme Court reflect,
sometimes to the Court’s personal discomfort, that the benefit of
the constitutional shield against forced sales of one’s homestead
property has been changed from one that exists solely for
the protection of the family home to an entitlement available to all
comers to the great State of Florida. The people of this state in
1984 also expanded the breadth of the availability of the shield of
homestead to all persons who hold an interest in homestead property
without regard to criminal or immoral conduct.
Under
Florida law, the intent to establish a homestead claim is evidenced
by a debtor's specific acts toward creating a permanent abode and
legally declaring such abode as a homestead, which are not
contradicted by debtor's subsequent behavior. Thus under Florida
law, homestead is established when there is an actual intention to
live permanently in a home place, coupled with actual use and
occupancy of the home place, along with a written legally sufficient
claim. All that is required by law to establish a homestead written
legal claim, is that the claimant resides on property and in good
faith makes the same his permanent home. No other requirements need
to be met. When there is an actual intention to live permanently in
a place, coupled with actual use and occupancy, the homestead claim
can be enforced but must be made in writing to be legally sufficient
and in order to withstand legal scrutiny should the need arise. Actual
or continuous residence is not required for homestead exemption when
a declaration of homestead has been filed.
The
'Homestead Exemption' or 'Declaration' for protection of real
property is not as 'automatic' as most people assume. The saying
"They can't take your house in Florida" is not true unless
you claim it as your homestead separate and apart from the
twenty-five thousand dollar ad valorem property tax exemption, as
separate laws were enacted for each specific purpose.
A written legal claim
of a homestead should be asserted with respect to land that is
occupied under the requirements contemplated by the state law or
statute, together with buildings and other improvements, that are
essential or convenient to the use or enjoyment of the land as a
homestead.
If
a constitution, such as Florida's, provides that a homestead shall
be exempt from execution, the provision is self-executing. However,
certain homestead provisions have been held by courts as not to be
self-executing, as where the constitution requires the legislature
to enact a statute to implement the provision, or where the
constitutional homestead exemption cannot be effective without the
passage of a law determining the amount, or the requirements to
invoke the rights of the exemption or protections thereunder. This
statement applies to Florida's homestead exemption for the
protection of a home and its equity. While in some states the
operation of homestead protection is automatic and a formal
declaration that certain land has been selected as a homestead is
not a necessary element in the establishment of the homestead right
under some legal provisions of the law, the homestead exemption laws
in Florida require a written designation of homestead property or
the filing of a declaration to make the exemption operative.
Illustration: A constitutional homestead protection provision is not
self-executing where it imposes upon the state legislature the duty
of setting up some statutory procedure by which the owner of real
estate may protect the property from sale or execution of a portion
of his property as his homestead. The procedure is set out in
Florida's statutes.
The
Florida Constitution on homestead 'asset protection' or a
'declaration of homestead' imposes upon the state legislature a duty
of setting up some statutory procedure by which the owner of real
estate may protect the property from sale or execution of all, or a
portion of his property, as his legal homestead. The written legally
sufficient claim must be made per the statute or the homestead
protection may be ineffective against judgment creditors. The
legislation requiring the written claim to be made was enacted by
the Florida Legislature in order to prescribe a practice to be used
for the state constitution's self-executing provision's enforcement
and to provide a convenient remedy for the protection of the
property rights secured by the constitution or the determination
thereof, and to place reasonable safeguards around the exercise of
the right. Even
if a constitutional provision states that it is self-executing, some
legislative action is usually necessary to effectuate its purposes,
but legislative authority to provide the method of exercising a
constitutional power exists only where the constitutional provisions
themselves do not provide the manner, means, and methods for
executing the powers therein conferred, such as in the state of
Florida.
If
there is a lien or judgment against a homeowner, Florida law allows
the sale or re-finance of the real property free and clear without
any encumbrance, but after the declaration claim and notice to the
creditor(s) is made. Please
contact us on this issue.
There
must be strict compliance with the procedural legal requirements for
'setting apart' and perfecting the homestead protection and, under
some provisions, there cannot be a homestead right in any specific
property until a declaration and selection of a homestead has been
made, again evidenced in writing, and recorded in accordance with
the legal requirements. Where the law simply says that the property,
when selected, shall be exempt from forced sale, the conclusion is
that after the selection has been made and filed for record, a levy
upon or sale of the homestead property cannot be legally made unless
the demand of the creditor is within the excepted classes of debts
(i.e., secured mortgage, property tax lien or
mechanic's/contractor's lien). Under the statute, a homestead
claimant, in order to be entitled to the protection of the law, must
execute a formal declaration of homestead stating the legal
requirements of the declarant or his or her spouse and file it in
the legally prescribed manner. When a declaration of homestead has
been filed, such declaration is prima facie evidence of the validity
of the facts therein stated. A declaration of homestead may, under
some statutes, be made by the owner and/or by his spouse. We
recommend both parties in a marriage file the claim jointly so as to
protect the property from creditors of either spouse. Title to
the claimed homestead may be held by the entireties, jointly, in
trust, or in common with others, and the exemption may be
apportioned among such of the owners as shall reside thereon, as
their respective interests shall appear. An equity interest is
all that is required to make the claim, coupled with actual use of
the property.
Furthermore,
some kinds of debts must be completely honored with or without a
homestead declaration. If you have put your property up as
collateral on a secured loan, for example a mortgage, the homestead
asset protection exemption or declaration does not apply. Other
debts not covered include debts for property taxes and construction
or contractual-mechanics liens, or, if you fail to pay someone
you've hired under a contract to make improvements on your house or
land, they can place a lien on your property and have it forcefully
sold in order to collect the money. All other liens do not count
against properly homesteaded property, but you must file your claim
through us, in writing to 'designate' or 'set apart' the property
before hand. You can also file for protection after a lawsuit
commences, but again the process may be more costly and
difficult to defend. Again, the homestead exemption for ad valorem
property tax 'breaks' do not afford the same legal protection and
the protection is not automatic.
Fortunately,
homestead laws are usually, in legal terms, 'liberally construed'
which means that they always should work in favor of the homeowner.
An apartment (if you own it or have an equity interest in it), a
condo, a mansion, a cabin, a boat, a motor home, a villa by the sea,
or a tent can qualify as a homestead provided the dwelling is the
'bona fide primary residence of the claimant'. This simply means
that if you intend to use the property as a homestead and actually
use it, you can make the 'declaration of homestead claim' and
protect the property from creditors, liens and judgments. If you
haven't built a house yet, you might still be able to claim a
'homestead' your future home site. In one case, a 160-acre parcel
was judged to be a homestead because the owner had shown intent to
live there to the court by building and drilling two wells and
planting fruit trees. Intention to live on the property as a primary
residence is the key. Another landowner was camping out on the
property to meet the residency requirements. A family is allowed
only one homestead which should be considered the primary residence,
and must show good faith in their claim. Summer vacation cabins, for
example, on which declarations have been filed and accepted, have
been taken away for debt payment, but there are legal loopholes in
order to be able to claim a second property in Florida. Contact
us for more details.
Outbuildings
and land that are used by the family for enjoyment or livelihood are
generally considered part of the homestead claim, but adjacent lots
or parcels next to a home that are held for idle investment purposes
might not qualify, unless they're gardened, logged, or farmed.
Generally
speaking, most states homestead exemptions usually apply only to
married couples and their families. In Florida, as previously
mentioned, any single or 'natural person' can claim their real
property, or home, as a homestead to protect it. If you have any
equity interest in a property, you can claim it even if there are
multiple owners. Florida also has a 'head-of-household' wage or
income exemption that protects income, provided one person supports
another dependent. The dependent can be anyone provided the 'head of
family' supports them with fifty percent or more of the head of
family's income. This exemption protects wages and income should
they attempt to be garnished or attached. Wages less than $500 per
week are exempt from garnishment, and garnishment of wages above
$500 per week must be agreed to in writing.
As
a general rule, a person can file a declaration of homestead at any
time before the date of a forced sale or creditor claim-judgment,
and such filing will protect the property from sale. Once the
declaration of homestead has been filed, such declaration
constitutes prima facie evidence of the validity of the facts stated
therein. A declaration of homestead may be filed during the pendency
of litigation at any time before the judgment has become a lien on
property. If the declaration is filed after the rendition of the
judgment, it may defeat an existing attachment lien. If it is filed
after levy of execution and there is no valid and subsisting
judgment lien, the property is not subject to execution sale except
on proceedings to reach the excess in value over the homestead
exemption, which is unlimited in Florida.
In other states other than Florida, the protections provided by
homestead exemption asset protection law provisions may operate
automatically, and thus there may be no need to make a formal
written declaration that certain land has been selected as a
homestead in order to invoke the exemption. This practice is not
recommended and every homeowner should make a legal written claim
immediately or upon purchase. The homestead exemption claim can be
made upon occupancy and use of real property as a home by the owner
or owner's family and also anytime upon the written claim. In a few
jurisdictions, there are provisions both for a declared homestead
and an automatic exemption, with each provision conferring different
rights on the homesteader, without overlap between those
rights.
In jurisdictions such as Florida where the homestead exemption
provision may require the filing of a formal written and legally
sufficient declaration of homestead property in order to set it
apart, it must be filed of record in the prescribed manner provided
by law. In order to claim the homestead exemption, the claimant must
show that there has been compliance with the provisions of the
statute, and the declaration of homestead must have been executed
and filed exactly as therein provided, under oath, and it must be
complete and legally sufficient or it may be easily defeated by a
creditor or legal adversary. A declaration of homestead which omits
any of the statutory legal requirements and language is fatally
defective, or may be 'legally insufficient', and confers no exemption or protection rights on the
homeowner. There are multiple
items that must be included in the written claim to make it legally
sufficient and not vulnerable to creditor attack. This legal sufficiency is
very important and is crucial to any subsequent defense and
protection of homestead real property and its equity.
A declaration of homestead ordinarily requires a statement that the
person making it is currently residing on the premises at the time
of filing such declaration, and the absence of the residency
statement may well render the declaration ineffectual. For example,
one court held that a homestead declaration which failed to state
that the declarants were residents of the state at the time the
declaration was made, as required by statute, was invalid. In
another case, the court held that a homestead declaration was
invalid because the claimant vacated the premises he selected as a
homestead and permanently moved to another state before the
declaration was filed with the clerk of court even though the
claimant was in full compliance with the residence requirements of
the statute when he signed the declaration. On the other hand, a
residency statement may be excused where the person is allowed to
make the declaration while not a resident, as where the wife is
allowed to make a declaration but she is absent from the premises
because of the wrongful acts of her husband, or vice-versa. A
homestead claimed by a husband on a home jointly owned with his wife
is valid even though the wife has a separate interest in the
property and does not join in executing the declaration, where the
homestead was filed while the husband and wife occupied the home, in
that the community or equity interest was sufficient to support the
homestead claim and the wife's signature was not necessary to
validate it.
A declaration of homestead which completely
omits any of the statutory requirements is fatally defective and
confers no exemption rights on the declarants. If
a debtor does not select or designate exempt property in writing
prior to a levy, the levying officer is not bound to make the
exemption for the debtor or homeowner, but may seize all the real
property and its equity. However, if the property is claimed as
exempt, the officer should make an attempt to see that the
exemptions are ‘set apart’ or ‘set out’ via the declaration
claim.
The homestead must be selected or set apart and claimed by the
homestead claimant by making, signing, and acknowledging a
declaration of homestead in which the declaration must, before the
time stated in the notice of sale on execution or on other judicial
sale as the time of sale of premises in which the homestead is
claimed, be delivered to and served upon the sheriff or other
officer conducting the sale or recorded with the county recorder. If
no such claim is filed or served as provided by law, title shall
pass to the purchaser at such sale free and clear of all homestead
rights. The statutes must be read together and the most reasonable
construction is that the homestead is immune from judgment, lien,
execution or forced sale, providing a formal declaration of the
existing exemption is made prior to the time set for sale or
execution.
*** Failure to set apart the property or designate and
claim it as exempt under levy constitutes a waiver of that
exemption. Also, creditors are presumed to know the law and its
provisions as to homestead exemptions, and have it within their
power to protect themselves by taking such steps as will assure them
against loss.***
Necessity
of a 'declaration of homestead'
The
homestead exemption provisions of a number of states, including
Florida, require a homestead claimant to make a legally sufficient
'designation' or 'declaration' of the homestead property before the
exemption from creditor claims take effect. Under the provisions of
law requiring the selection or designation of the homestead
property, there cannot be a homestead right in any specific property
until a selection of a homestead has been made, evidenced in
writing, and recorded in accordance with certain stringent and
specific legal requirements. Ordinarily, however, no selection need
be made until there is an execution levied against the homestead
claimant's property but it is not recommended to wait until this
point for many reasons. Increased costs and time to defend the claim
is one of the many reasons not to wait, plus a judgment lien may
take priority if filed before the claim depending on the case and
circumstances. Mindful
of the special affection and protection Florida courts have
traditionally bestowed on the homestead, the proper condition of a
homesteader who has filed the required affidavit should be one of
repose and security in the home, a refuge from the stresses and
strains of misfortune. The already enormous costs of
defending a claim increase exponentially and there is no reason to
delay protection of your most valued asset, your home and its
equity.
Should
You
File
a Homestead
Declaration?
The
filing of a Homestead Declaration on your residence is one of the
least expensive and most effective forms of personal liability protection. The
equity in your home can be protected with a properly recorded
Homestead Declaration. The main purpose of a homestead exemption is
to protect your home equity from creditors. We strongly suggest taking precautionary
measures to protect your home and its equity before any creditors or
judgments.
Once properly recorded, the homeowner's exemption is permanent until
he/she moves to another homestead. The homestead exemption privilege is
enacted into the law by the state legislature to give the homeowner
certain valuable equity protection rights. The following applies
specifically to the state of Florida, but is typical of most states.
You should check with the local courthouse, or your legal
counsel.
The
filing of a declared homestead does
indeed enormously add
to the homestead protection that the law provides to all homeowners.
While the typical homeowner need not file a declared homestead to
enjoy basic homestead tax exemption, homeowners who may be or are in
financial trouble, or who expect to be in financial trouble,
probably should
file a
homestead declaration, just to be on the safe side. Anything can
happen at a moments notice and you'd already be protected if you
have us file your declaration of homestead.
The
following are some of the reasons that a homeowner who is or expects
to be in financial trouble should file a
declared homestead and not rely on the homestead tax exemption:
•
The owner who files a declared homestead can choose which of several
different residences will be protected.
•
The protection that is provided by a declared
homestead
will continue to apply to that residence even if the owner becomes
deceased.
It will not apply to rental properties. If a declared homestead has not
been
recorded, the homestead protection may be lost if the owner moves,
rents or becomes deceased.
•
The protection that is provided by a declared
homestead
will apply to the proceeds
of a voluntary sale.
If no declared homestead has been recorded, the protection of the
owner’s equity in a home may be lost in the event of a voluntary
or forced sale, or re-finance of the home. (This means that the
proceeds of the voluntary, re-finance or forced sale of the home
will go to the judgment creditor or creditors rather than the
owner).
•
If a declared
homestead
has
been
recorded, the law is clear that the proceeds of sale can be used to
purchase another house as a homestead or be used for living expenses
until another purchase.
•
Only if a declared
homestead
has
been
recorded will the proceeds of a voluntary sale assuredly be
protected after they are used to purchase another house; only then
will the protection given to the first house be carried over to the
second in regards to purchase funds.
•
If a declared
homestead
has
been
recorded, the law is clear that the property cannot be forcefully
sold to pay any debt, judgment, levy or lien (if not a mortgage,
property tax or mechanic’s lien), and can be sold or contracted
against within 45 days after filing the declaration and up to 180
days afterwards without any encumbrance or defective title.
•
If a declared
homestead
has
been
recorded, the law is clear that the home is fully protected unless
abandoned.
Neither
the homestead tax exemption nor the declared homestead will protect
a homeowner against the loss of his or her home to a secured
creditor -- such as the lender who has financed the original
purchase, or a lender who extended a second mortgage loan, or to a
contractor, subcontractor or laborer who has filed a valid claim of
mechanic's lien for improvements to the homestead or to a property
tax lien or assessment. The protections of both the declared and tax
homesteads, however, extend to most other kinds of creditors and
judgment liens.
Homeowners
who are in financial trouble or those who expect that they may
encounter financial trouble should immediately contact us for the
filing of a homestead declaration.
HOW DO I FILE A HOMESTEAD DECLARATION?
Simply contact Florida Homestead Services at 954-252-9111 or
e-mail us at myhomestead@bellsouth.net
###
CURRENT
HOMESTEAD EXEMPTION AMOUNTS
Equity Protected in Amounts up to:
Husband and Wife (filing joint declaration) Unlimited
Either the Wife or Husband Unlimited
Single Person that Qualifies as Head of Household Unlimited
Single Person (over age 65) Unlimited
Single Person (under age 65) Unlimited
In order to qualify, the homeowner must intend live on the
property that is to be homesteaded coupled with actual use of the
property as a sole and primary residence. The
recording process, when complete, will give the homeowner-added
protection toward the equity, which has built up in the home over
recent years.
OTHER BENEFITS OF HOMESTEAD DECLARATION & ELECTION
1. You may file for a homestead exemption if your home is paid for,
or if you are still making payments (i.e., 1st, 2nd, or any number
of trust deeds or mortgages).
2. A homestead will not prevent you from selling your home nor will
it prevent you from borrowing money on your home.
3. If you sell your home, it automatically removes the Homestead
Declaration.
4. If you sell your property after you homestead it, the exempted
amount of money you receive from the sale of the property is
protected if there is a judgment against you. You have time in which
to purchase another residence and file a new Homestead Declaration
on it.
5. A properly filed homestead protects your equity in a home even if
you move out of the home and you continue to own it.
6. A homestead gives protection to a regular home, duplex,
condominium, cooperative apartment or planned unit development.
EXCLUSIONS
The Homestead Law will not protect you against material/mechanics
liens (work done by contractors to improve the real property),
property taxes or secured liens such as a mortgage. Always be
careful when you are asked to put your home up as security for a
loan or installment contract or if there is a waiver
provision.
Why
Were Regulations Initiated, Drafted and Adopted by
Florida
Homestead
Services,
LLC?
Rules
and Regulations were created and adopted by us (and have
subsequently been adopted for the State of California) because some
individuals providing homestead services were misrepresenting the
need for, or the character of our services. A common
misrepresentation is that a recorded declaration of homestead
protects against enforcement measures by any and all
creditors.
In fact, filing a homestead declaration does not protect against
creditors whose claims are secured by a mortgage on the property, or
against businesses that have a ‘contractor’s’ lien on the
property as a result of providing services or improvements, or for
non-payment of property taxes and assessments. Also, some
unscrupulous individuals conceal the existence of the legal
requirements of the homestead asset and equity protection, stating
that it is automatic, in order to sell other legal services to those
who do not need it. Read
these
regulations.
###
These
are many good reasons why it is crucial to utilize our services, as
our approved, registered and copyrighted declaration forms for the
State of Florida are deemed and proven to be legally sufficient and
cannot be denied, rebutted or attacked. Forms are not available from
the state or the county. Also, do not attempt to utilize other
states' generic and 'cookie cutter' forms, as they are not sufficient as a matter of law,
for the State of Florida, and could easily render your designation of
homestead claim totally invalid and legally insufficient in court, ultimately
leaving you with a legal mess to untangle at great expense and the
possible loss of your home and its equity. We handle the entire
process from start to finish at no extra costs to you. A flat
fee is all we charge, and it is VERY reasonable!
If
you're among those folks lucky enough to live in a state that
recognizes the Homestead Exemption, like Florida, you'd be wise to
get in touch with us right away for complete information about our
services and make the claim of homestead now before any legal
calamity ensues. Allowing Florida Homestead Services to help you
protect your real property and family home is well worth the few
dollars and the little time it requires to protect your home,
property and your equity. It's a simple step that could save you
lot's of money ... and it will definitely save your home, equity and
income from future creditors, judgments, levy, liens and
lawsuits!
We at
Florida homestead services believe that every homeowner should make
the declaration of homestead claim immediately or upon closing or
upon purchasing a new home. We can help make your declaration
legally sufficient for a minimal fee. We
are also a referral service for attorney's who specialize in asset
protection and estate planning. If you need help, contact us and we
will help you to find the best of the best. Consider it the
most inexpensive protection for your real property and its equity. Contact
us and claim your homestead today!
FLORIDA HOMESTEAD
SERVICES, LLC -
CONTACT
US
Bonded Member-National
Notary Association
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YOUR
COMPLETE SATISFACTION IS GUARANTEED!
We
also provide absolutely FREE consultation to answer any of your
questions...
Be careful of
SCAMMERS on the internet who boast their cookie cutter products for a small
price! They are only there to take your hard earned money, they do not to
support their product, and they do not have the same outstanding services,
they are not licensed to do business in their state or jurisdiction, and
they do not have satisfied clients and over 15 years of
experience!
[NOTE:
Declaration and/or Designation of Homestead forms obtained from the
internet HERE,
(not a valid Florida Corporation or Entity in addition to
being Intellectual property thieves), and created for other states other than Florida may not be legally sufficient for use in Florida.
Florida Homestead Services is the only valid licensed and bonded
company in the state to provide the types of services that we offer. Also, the Notice
of Homestead in the Florida Statute is not legally sufficient if
there is not a sales contract pending. DO NOT rely on it for
property or equity protection in Florida!]
