Fla Appeals Court: 'Green Card-Lacking' Couple Entitled To Benefit Of State Homestead Exemption Against Forced Sale, Dodging $500K Claim Against Home

The Florida Bankruptcy Law Blog reports:

• A Florida appellate court has liberalized homestead exemptions for temporary U.S. residents. The court said that a foreign citizen’s eligibility for Florida homestead depends on his intent rather than the U.S. Immigration Service’s rules.



• A debtor’s eligibility for homestead is based on the all the facts relevant to his intent to reside permanently in his house even if the debtor has not yet received a “green card.”



• The court upheld the homestead exemption of a foreign debtor who resided in a Florida property since its purchase, had a visa giving him the right to reside in Florida, and was actively pursuing permanent resident status.(1)

Source: Court Liberalizes Homestead Exemption For Foreign Debtors Living In Florida Properties.

For the court ruling, see Grisolia v. Pfeffer, Case No. 3D11-198 (Fla. App. 3d DCA, November 23, 2011).

(1) It should be noted that a fact in this case that appears to have played a big part in tipping the scales in favor of the non-U.S. citizen, 'green card-lacking' homeowners (a wife & her now-deceased husband) was the fact that they had a U.S.-born son (making the child a U.S. citizen) who was the target of an attempted kidnapping in the family's native country, Venezuela.

The court made the following observations in connection with the foregoing:

• It is undisputed that the Decedent and the Widow were not in the United States as tourists. Instead, they were registered aliens legally allowed to reside in the United States under their temporary visa.
  
  Moreover, in the Son's case, he was an American citizen who was born in Miami, Florida and had resided in Florida since his family moved here in 2005.
  
  The Widow testified at the evidentiary hearing that her intent, along with that of the Decedent, was that the family reside permanently in the Property due to safety concerns stemming from the attempted kidnapping of the Son in Venezuela.
  
  The Widow further testified that she and the Decedent had applied for permanent residence in the United States prior to the Decedent's passing.[5] These specific circumstances are sufficient to demonstrate the Decedent's intent to have his family permanently reside in Florida.

***

• Under the specific facts of the this case, because the Decedent's American-born Son resided in the Property since its purchase, the Decedent and Widow had a visa which gave them the legal right to reside in Florida, and were actively pursuing permanent residence status prior to the Decedent's death, we find that the Decedent demonstrated the requisite intent to make the Property his family's permanent residence.
  
  Based upon the foregoing, we reverse the probate court's order denying the petition for declaration of homestead exemption.
  
  Reversed.

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In this case, the court made clear the distinction between the homestead exemption granted to Florida homeowners under Article X, Section 4 of the state Constitution (which deals with the protection against forced sale of a Florida resident's homestead), and the real estate tax exemption (also referred to as a homestead exemption) allowed to Florida homeowners under Article VII, Section 6 of the state Constitution.

• Other cases cited by Appellees are inapposite as they involve Florida's homestead exemption from taxation that is now set forth in article VII, section 6 of the Florida Constitution ("Tax Exemption"), rather than the homestead exemption from forced sale found in article X, section 4.
  
  For example, in Juarrero v. McNayr, 157 So. 2d 79 (1963), the Florida Supreme Court held that a citizen and former resident of a foreign country, who is in the United States solely on the authority of a temporary visa, "has no assurance that he can continue to reside in good faith for any fixed period of time in this country . . . [and, therefore] does not have the legal ability to determine for himself his future status and does not have the ability legally to convert a temporary residence into a permanent home."[6] Id. at 81.
  
  Likewise, in DeQuervain v. Desguin, 927 So. 2d 232 (Fla. 2d DCA 2006), the court found that homeowners who held only temporary visas "could not form the requisite intent to become permanent residents for purposes of the [Tax Exemption]." Id. at 233.
  
  However, the Second District also clarified that "because the [Tax Exemption] provides relief from an ad valorem tax, we must construe the statute strictly against [the homeowners]." Id. (citing Capital City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (1993)). The strict construction applicable to the Tax Exemption stands in contrast to the liberal construction of the homestead exemption from forced sale at issue here. See Taylor, 941 So. 2d at 562; Law, 738 So. 2d at 524.
  
  Similarly, at the evidentiary hearing the Appellees raised the fact that the Decedent had never claimed a Tax Exemption on the Property. They further argue on appeal that a person in the United States under a temporary visa cannot meet the requirement of permanent residence or home, and therefore, cannot claim the Tax Exemption. Fla. Admin Code R. 12D-7.007 (2002).
  
  We note that the portion of the Florida Administrative Code to which they cite applies to the Tax Exemption and not to the homestead exemption from forced sale at issue here. The probate court referenced in the order on appeal that "[i]n fact, the Decedent never claimed a [Tax Exemption] according to the Miami-Dade County Tax Rolls."
  
  As we have previously stated, "[f]ailure to claim the [Tax Exemption] is not evidence that property is not, in fact, homestead." Taylor, 941 So. 2d at 563 (citing Pierrepoint v. Humphreys, 413 So. 2d 140, 143 (Fla. 5th DCA 1982)).
  
  Clearly, "the homestead exemption from forced sale is different from the [Tax Exemption]." Taylor, 941 So. 2d at 563 (citing S. Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 569 (Fla. 5th DCA 2002))., 810 So. 2d 566, 569 (Fla. 5th DCA 2002)).

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Prevailing in this case was a big win for the family in that the stakes for them were pretty high. By being entitled to the homestead exemption against forced sale of their homestead as provided to Florida homeowners under the state's Constitution, a claim against the family home made by a creditor of the deceased husband's estate to the tune of $500,000 was successfully avoided.