PROBATE CORNER
Abandonment of Homestead From An Elder Law Perspective
DAVID M . GARTEN
Homestead status is established by the actual intention to live permanently in a place coupled with actual use and occupancy . Beltran v . Kalb , 63 So . 3d 783 ( Fla . 3rd DCA 2011 ). Once a property becomes a homestead , it does not lose that status until it is abandoned . In determining whether a homestead has been abandoned , the owner ' s intent is the main consideration and physical absence is not determinative . A finding of abandonment requires a strong showing of intent not to return to the homestead . In re
Herr , 197 B . R . 939 , 941 ( Bankr . S . D . Fla . 1996 ). Whether a property has been abandoned and thus lost its homestead protections is determined , case by case , in light of the totality of circumstances with all doubts resolved against the moving party . Yost- Rudge v . A to Z Props ., 263 So . 3d 95 ( Fla . 4th DCA 2019 ). The owner ’ s failure to continue to occupy the residence is not necessarily equivalent to abandonment and , thus , will not necessarily cause the homestead to lose its protected status . The general rule appears to be that if the owner leaves his home due to financial , health , or family reasons , he will not be considered to have abandoned the homestead .
For example , in Crain v . Putnam , 687 So . 2d 1325 ( Fla . 4th DCA 1997 ), the property appraiser denied a homestead exemption for the reason that the owner , an elderly woman , had not lived in her home for over two years when she was placed in a nursing home in a vegetative state . The owner ’ s physical and mental condition were such that she could not communicate any intention regarding her residence . Her furniture , clothing and most of her other possessions remained in the home , and she continued to receive mail there . The appellate court , in concluding that the owner was entitled to the homestead exemption , reasoned that the homestead character of property is not abandoned when the owner involuntarily changes his residence , as in a case where an infirmity requires residence in a nursing home or hospital facility , citing In re Estate of Melisi , 440 So . 2d 584 ( Fla . 4th DCA 1983 ) and Nelson v . Hainlin , 89 Fla . 356 , 104 So . 589 ( Fla . 1925 ). Although the court recognized that the homestead provisions found in Article VII and Article X of the Florida constitution are separate and distinct and
that the principles relating to one do not necessarily govern the other , it reasoned that if the owner would not have lost her homestead exemption under Article X she should not lose it under Article VII .
In In re Betancourt , 154 B . R . 90 ; 1993 Bankr . LEXIS 700 ( S . D . Fla . 1993 ), the owner filed for bankruptcy and the trustee challenged the owner ’ s homestead exemption claim on the basis of abandonment . The owner had resided in her home for six years . She subsequently entered into a one-year rental lease agreement so that she could help her daughter and grandchildren in their time of need in New York . Her financial limitations would not permit the unit to remain vacant while she was in New York with her family . The appellate court , in overruling the objection to the exemption claim , reasoned that the renting of a home for a limited period of time does not constitute an abandonment of the homestead absent a strong showing of the owner ' s intent not to return to the homestead .
In In re Estate of Phillippe , 23 Kan . App . 2d 436 ; 933 P . 2d 151 ( Kan . App . 1997 ), the State challenged the sufficiency of the evidence that the owner intended to treat his home as his homestead after his move to a nursing home because the evidence did not show that the owner intended to return to the residence . The appellate court , in affirming the lower court ’ s ruling that the owner did not abandon his homestead , found that the State had failed to meet its burden to show by positive and clear evidence that Abe did not intend to return to the residence . “ The only evidence possibly indicating Abe did not intend to return is the fact that , after his move to the nursing home , Abe stopped filing for a homestead tax exemption . See K . S . A . 79-4501 et seq . However , Fred explained that Abe did not deal with the taxes after he went into the nursing home . The tax exemption evidence does not constitute positive and clear proof that Abe did not intend to return to his residence .”
In In re Herr , 197 B . R . 939 ; 1996 Bankr . LEXIS 833 ( S . D . Fla . 1996 ), the debtor had resided in his home for 35 years and moved to a relative ' s home only when his home was irreparably damaged by Hurricane Andrew . Although he had intended to rebuild , he could not afford to . The creditor claimed abandoned , arguing that the posting of a " For Sale " sign on the land prevented the homestead claim . The court overruled the creditor ' s objection . The court held that the debtor ' s unrebutted testimony as to the length of his residency on the land established that it was his homestead ; that the creditor had the burden of proving that the debtor had abandoned the homestead ; that the debtor ' s departure from the land by reason of the destruction of his home was insufficient to support a claim of abandonment ; and that neither the fact that the lot was vacant nor the fact that the debtor had posted a " For Sale " sign proved the abandonment claim . The court held that when a debtor testified under oath that his intent was to retain a homestead , sell it , and then buy another with the proceeds , that was sufficient to prove his intent to maintain his homestead .
In Stokes v . Whidden , 97 Fla . 1057 ; 122 So . 566 ( Fla . 1929 ), proceedings were brought by the guardian of an insane person to enforce the payment of a purchase money mortgage on his homestead property . The husband was adjudged insane and committed to the state hospital . His wife was appointed his guardian and undertook to sell and convey the homestead property , taking a purchase money mortgage which she sought to foreclose . The court decreed that the deed of conveyance and the purchase money notes and mortgage be canceled and surrendered . The appellate court affirmed . The court reasoned that the “ homestead having been acquired by the husband and occupied as a home by him and his family , the mere facts that the husband was afterward adjudged to be insane and was committed to and remains in a state institution and the wife was appointed as his guardian , did not authorize the guardian to convey the title to the homestead real estate .”
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