PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 8

BANKRUPTCY C o r n e r
Abandonment of Florida’s Homestead Exemption
JASON S. RIGOLI
Florida’s homestead exemption, Article 10,
§ 4 of the Florida Constitution and §§ 222.01
and 222.02, Florida Statutes, is a powerful
device to protect assets from creditors, and
is made applicable in bankruptcy through 11
U.S.C. § 522(b) and § 222.20, Fla. Stat. While
the exemption does not contain a dollar
cap, there are certain restrictions, such as
the size of the property and that it be the
owner’s residence, Fla. Const. art. X, § 4(a)
(1) , and the exemption can abandonment.
As Judge Mindy A. Mora recently ruled,
there are two threshold requirements for
a homestead exemption claim: “intent to
reside coupled with actual residence[,]”
which generally comprise two independent
tests.
In re Erik Martinez , Case No.
18-10307-BKC-MAM, -- B.R. --, 2019 WL
169115 at *5 (Bankr. S.D.Fla. Jan. 7, 2019)
(citations omitted).
“The first test is
subjective and looks to the perceived intent
of the debtor to reside permanently in the
subject property.” Ibid. The second is “proof
of actual residence.” Ibid. Even when these
threshold requirements may have been
satisfied at one point in time, the debtor can
“abandon” the homestead.
Abandonment has been described “as
occurring when the owner leaves the home
with no intention of returning, takes up
permanent abode at another place, and
pursues a livelihood in the new area.” Id . at
*6 (citations omitted). This does not mean
that any time a debtor leaves or even rents
out the subject property the debtor has
abandoned it. Abandonment requires an
analysis of “all of the pertinent facts and
circumstances of each individual case.” Ibid
(internal citations and quotations omitted).
“It is well-settled that a court must liberally
construe the homestead exemption in favor
of the claimant.” Martinez , at *5 (citations
omitted). And, the party objecting has
the burden to prove that the debtor is not
entitled to the homestead exemption. Id. at
*7.
the facts were that the debtor had entered
a long-term lease and prepared to sell the
property, but more importantly, the debtor
had let the homestead tax exemption lapse,
failed to maintain property insurance, and
made other omissions and misstatements
in his schedules and statements that led
Judge Mora to determine that the debtor
abandoned his homestead. Id. at *7-8.
The Martinez opinion is a thorough analysis
for applying the homestead exemption and
determining abandonment. It provides a
good framework for debtor’s lawyers to look
at their client’s claim of homestead and
analyze the possibility of abandonment.
This article is submitted by Jason S.
Rigoli, Esq., Furr Cohen, 2255 Glades Road,
Suite 301E, Boca Raton, FL 33431, jrigoli@
furrcohen.com
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In Martinez , Judge Mora grappled with
factual circumstances that straddled the
line between abandonment and retention of
the homestead exemption. Id. at *3. Among
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