The term "homestead filing service" means any service offered or
performed for compensation in connection with the preparation or
completion of a homestead declaration. This includes the preparation
of a homestead tax exemption form or declaration, assistance in
preparing a homestead tax exemption form or declaration, recording a
homestead tax exemption form or declaration, and any combination of
these.
The offer and sale of homestead filing service businesses are
regulated by state law.
Who is Subject to this Law?
The provisions of the law apply to anyone who provides a homestead
filing service business. However, the statute does not apply to
attorneys, or to those who work under the direction and supervision
of attorneys, with respect to legal services that are provided to a
client who has retained the attorney to provide those services. Once
you hire an attorney to advise you regarding a homestead, neither
the kinds of service that are furnished by an attorney, nor the
charges for those services, are covered by law.
What is a Homestead Declaration?
A homestead declaration is a written statement, made under penalty
of perjury that claims a particular "dwelling" (for example, a
house, condominium, boat, motor home or similar property) as the
owner's sole and principal place of residence. For
simplicity, this guide uses the word "home" to describe any sole and
principal dwelling.
When a homestead declaration is (1) signed by a homeowner, (2)
acknowledged (i.e., "notarized") by a notary, and (3) "recorded," it
helps to protect the home and it’s equity against loss to creditors.
"Recorded" means that the original signed and notarized homestead
declaration is filed in the court clerk's or recorder's office for
the county in which the home is located. A properly prepared and
recorded homestead declaration immunizes the home (and the land on
which it is situated) from many (but not all) legal creditor
enforcement measures. For example, if a homeowner files a petition
in bankruptcy, it may be possible, because of a homestead
declaration, to retain the home, or at least a portion of the equity
in the property, instead of losing it to creditors.
What Protections Does This Law Provide?
The law that regulates those who offer or provide homestead filing
services: (a) prohibits certain misstatements; (b) requires certain
disclosures; (c) defines the minimum kinds of services that must
be provided by anyone who provides homestead filing services; and
(d) limits the statutory fees that can be charged.
Minimum Services to be Provided
The law requires that in addition to any other service such as
preparing or completing a homestead declaration, the provider shall
deliver each notarized homestead declaration to the appropriate
county, and pay all fees in connection with the notarization and
recording of the declaration. The service provider must deliver the
declaration to the appropriate county recorder as soon as needed,
but no later than 10 days after it is notarized.
Fees
The law limits the fee that can be charged for the filing to actual
costs, including notary and recording fees. The homestead filing
service cannot charge additional filing fees, demand, or collect the
fee unless documents are actually required to be recorded usually
after the homestead declaration is notarized.
Required Disclosure
To help ensure that a homeowner is not misled about the need for
filing a homestead declaration or the protection that this provides,
a homestead filing service must include a prescribed disclosure on
advertisements or promotional materials before the time when the
owner is obligated to pay for the service. In the case of an oral
solicitation or a broadcast advertisement, the disclosure must be
recited at each presentation and may be delivered in printed form
before each person who responds to the oral solicitation or
broadcast is obligated to pay for the service.
In all situations, the printed disclosure must be in bold and must
state:
THIS HOMESTEAD FILING SERVICE IS NOT ASSOCIATED WITH ANY GOVERNMENT
AGENCY. RECORDING A HOMESTEAD DECLARATION DOES NOT PROTECT YOUR HOME
AGAINST FORCED SALE BY ALL CREDITORS. YOU MAY WISH TO CONSULT A
LAWYER ABOUT THE BENEFITS OF RECORDING A HOMESTEAD DECLARATION.
Prohibitions
The law makes it unlawful for those offering or providing business
services to make certain statements about the homestead law
or the particular service that the provider is offering:
First, all statements that are untrue or misleading
are prohibited.
Second, certain kinds of representations are altogether
prohibited, including the following:
That the preparation or recording of a homestead declaration
will prevent the forced sale of a judgment debtor's dwelling.
That the preparation or recording of a homestead declaration
will prevent the foreclosure of a mortgage, deed of trust, or
mechanic's lien.
That a homestead declaration is in any way related to obtaining
a homeowner's exemption to real property taxes.
That the preparation or recording of a homestead declaration is
not based on fraudulent or criminal intent.
That the homestead filing service has a file or record covering
a person to whom a solicitation is made.
That the homestead filing service is, or is affiliated with, a
charitable or public service entity - unless it is or is so
affiliated.
That the homestead filing service is not a law firm unless
authorized by the state Bar.
That the homestead filing service guarantees no particular
result(s) from its service(s) or representation(s)
That the homestead filing service is, or is affiliated with, any
government entity, including the misleading use of a government
seal or emblem; using any business name that includes such words
as "agency," "bureau," "county," or "city"; or in the name of
any city or county; or other title usually associated with a
government body, or to use an envelope that simulates an
envelope containing a government check, tax bill or other
government notice.
As noted above, a person who provides homestead filing services has
certain legal duties once that person is hired. The provider must:
1.a) prepare or complete, or assist in the preparation or
completion, of the homestead forms,
2.b) ensure that the declaration is notarized,
3.c) deliver the signed and notarized declaration to the
appropriate county recorder or clerk of court for recordation,
4.d) pay all fees charged in connection with the notarization
and recordation of the homestead declaration, and
5.e) complete the recordation process within the time required
by the homeowner, usually no later than 10 days after the
declaration is notarized.
Why Was This Regulation Adopted?
The regulation was adopted because some providers of homestead
filing services were misrepresenting the need for, or character of,
the services. A common misrepresentation was that a recorded
declaration of homestead protects against enforcement measures by
all creditors. In fact, filing a homestead declaration does not
protect against creditors whose claims are secured by a prior
mortgage or deed of trust on the property, or against a business
that has a mechanic's lien on the property as a result of providing
services or improvements. Also, some providers concealed the
existence of the l protection in order to sell homestead filing
services to those who did not need such services.
Sources and Enforcement of Law
The homestead law (covering both automatic homesteads and declared
homesteads) is found in Florida Statutes. The law that regulates
persons who provide homestead filing services is codified in Florida
Statutes relating to business entities. In addition, the Attorney
General or a district attorney, and certain city attorneys, may
recover a civil penalty for each violation of Business and
Professions statutes. Suits for an injunction prohibiting violations
and securing restitution of amounts paid by victims may be
maintained by law enforcement agencies and private parties.
Should You File a Homestead Declaration?
The filing of a declared homestead does indeed add to the
homestead protection that the law provides to all homeowners.
Similar protections of a home, or the equity in a property, are
enjoyed by homeowners who have not recorded a homestead
declaration, but those protections are not quite as extensive as
those provided by a properly recorded written homestead declaration
in addition to having to extend additional time, resources and funds
to protect their home. For that reason, homeowners who are in
financial trouble, or who expect to be in financial trouble, should
consult an attorney for creditor legal advice.
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 exclusively on the homestead:
The owner who files a declared homestead can choose which of
several different dwellings will be protected as the person's
home.
The protection that is provided by a declared homestead
will continue to apply to that homestead even if the owner
moves. If a declared homestead has not been recorded, the
homestead protection may be lost if the owner moves.
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
sale or refinance of the home. (This means that the proceeds of
the voluntary sale or refinance 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 (up to the dollar limits of the
homestead law) can be used to purchase another home within a
specified time period.
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 home; only then will the
protection given to the first home be carried over to the second
home.
However, 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. The protections of the declared
homestead extend to most other kinds of unsecured creditors.
A homeowner who is in financial trouble, or one who expects to
encounter financial trouble, should consult an attorney for legal
advice.
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NOTICE: We attempt to make our regulations accurate as of the date
of publication, but they are only guidelines and not definitive
statements of the law. Questions about the law's application to
particular cases should be directed to an attorney.
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met: the copied text is not changed; credit is given to Florida
Homestead Services, LLC,; and all copies are distributed free of
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