Fla. 1988). Scope of the Debtor Protection. M.D. Florida's debtor 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 one-half acre (2,000 sq m) within a municipality, or 160 acres (650,000 sq m) outside of a municipality. News at 6087-88 (1978). For example, if a civil judgment is recorded against you in Walton County and, after the judgment is recorded, you buy and occupy a residence in Walton County, you will not be protected. Not necessarily, as it turns out, under Florida law regarding attachment of liens and federal law regarding lien avoidance. 29 Owen v. Owen, 500 U.S. 305, 111 5. The Third District Court of Appeal faced the issue of whether floating judgment liens attach to after-acquired property in Bowers v. Mozingo, 399 So. Finding that the homestead protection provision in the state constitution should be *liberally construed,* the Florida Supreme Court held that homestead protections against judgment creditors extend to the proceeds from the sale of the homestead if all the following conditions are met: The Owen court held that liens enforceable under Florida homestead law could not be avoided under §522(f)(1). Florida is one state that has historically had an unlimited homestead exemption, which never allowed a creditor to take a home in satisfaction of a debt â regardless of the homeâs value, though there is acreage limitation and a length of ownership requirement. 46 In an unusual situation, the lien could attach to property after the debtor acquired it but before it acquired homestead status. People anticipating substantial civil judgments often move from other states to Florida to become a Florida resident for asset protection purposes. §552(f)(1) (1988). Real Estate Owned By Husband and Wife The general rule for a Florida homestead is if both husband ⦠Fla. 1989), rev’d, 877 F.2d 44 (11th Cir. This is the most simple part of the Florida homestead protection from creditors. The state of Florida offers 100% protection against the forced sale of a home. 1021 (Bankr. The homestead exemption is the highest form of asset protection because it is embodied in Florida’s Constitution and statutes, and it has been rigorously and consistently upheld by the courts. In other words, a judgment creditor of a non-resident co-owner of property can force the property to be sold at auction, so it is smart to make sure that homesteaded property is occupied by all owners of the property. “Since [the debtor] never possessed his interest before the lien ‘fixed,’ §522(f)(1) is not available to void the lien?”43, The Farrey Court’s analysis gives a judicial lienholder a third possible basis for arguing that the lien should not be avoided under §522(f)(1). 2d 492 (Fla. 3d DCA 1981). Because the lien will have attached to the property after the debtor acquired it, it usually will be subordinate to the homestead exemption.46 As discussed above, the holder of a presently unenforceable lien can argue that it does not impair the debtor’s homestead exemption since the lien will not preclude the debtor’s s exercise of his or her homestead rights. Olesky v. Nicholas, supra. on an interest of the debtor,” as clarified by the Court, may surprise many practitioners. The court found the resulting lien to be more like a consensual security interest than a judicial lien because it originated from the voluntary settlement agreement, even though that agreement was enforced by a judgment. 27 Owen v. Owen, 877 F.2d 44, 47 (11th Cir. The intent of the owner/occupier of the home is by far the most important factor in determining whether a property is a qualified Florida homestead. 25 See, e.g., Matter of Hershey, 50 B.R. For example, title companies often treat these judgments as clouds on title and refuse to insure title to the property.22 These courts, therefore, allowed §522(f)(1) avoidance of presently unenforceable liens on homestead property. The Court recognized that the judgment creditor’s floating judgment lien attached to the property in question when the debtor acquired an interest in the property. Note: the federal bankruptcy law has no application to the unlimited protections offered by Florida homestead laws outside of bankruptcy proceedings. There is considerable room to argue that §522(f)(1) does not apply to a particular lien on a debtor’s exempt homestead property. At first glance, this does not appear to be a good argument for the lienholder. 243 (Bankr. at 244. These courts avoided pre-existing liens despite the fact that Florida had defined its homestead exemption to be subordinate to such liens.25 They reasoned that the Supremacy Clause of the U.S. Constitution required the federal statute §522(f)(1) to prevail over the Florida Constitution’s definition of the homestead exemption.26, This uncertainty surrounding the issue of the use of §522(f)(1) to avoid judicial liens on Florida homestead property set the stage for the 11th Circuit’s decision in Owen v. Owen, 877 F.2d 44 (11th Cir. However, the meaning of “fixing.. . N.D. Fla. 1988); In re Bird, 84 B.R. The court reasoned that “Congress did not intend through section 522(f). Ct. 1833 (1991). 22 Id. A creditor who obtains a judgment against you is called a judgment creditor. Therefore, the court reasoned, because homestead rights are subject to preexisting liens, the assessment fee lien prevailed over the debtors’ homestead exemption.6 Accordingly, under Florida caselaw, it appears that judgment liens attach to after-acquired homestead property, thus creating the “floating judgment lien” and raising the question of whether a bankrupt debtor can avoid such a lien under Bankruptcy Code §522(f). X, § 4(a) of the Florida Constitution, which states that no judgment, decree or execution shall be a lien” on the property defined therein as homestead. art. 35 See note 17 and accompanying text. 4 Id. Accord, In re Bradlow, 119 B.R. Interest accrues every year as set by the Comptroller of the State of Florida. Conclusion §522(b), Florida has opted out of the federally defined exemptions from the bankruptcy estate. Interestingly, proceeds from the sale of Florida homestead are also protected to the extent that they are intended to be used for the purchase of a new Florida homestead within a reasonable time. These spousal rights exist regardless of any provisions contained in a last will and testament. Therefore, Florida law determines what property a debtor may exempt from the bankruptcy estate. Likewise, property held in a Florida land trust may qualify as a Florida homestead. Because the liens remained statutory or equitable, even when enforced by judgments, they fell outside the scope of §522(f)(1).14 However, apparently unnoticed by the Hampton court, the Ewiak court held that this “unpalatable result” was a matter for Congress to address and avoided the lien under §522(f)(1). Like the judgment liens in Farrey and Owen, your client’s lien does not satisfy the §522(f)(1) fixing requirement because it was a preexisting floating judgment lien which attached to the debtor’s property interest simultaneously with the acquisition of it. Fla. 1989), was for an award of alimony; in In re Hampton, 104 B.R. In order to qualify for the exemption, the owner of the property must be a Florida resident, and the homestead estate must be his or her primary residence. Therefore, the 11th Circuit held, §522(f)(1) was not available to void the lien.45. Fla. 1990); In re Bird, 1989 U.S. Dist. den., ___ U.S. 141, and Raskin, 78 B.R. Wayne Patton JD, LLC Decedentâs son filed a petition with the probate court seeking judicial determination that Decedentâs entire home was protected homestead and exempt from creditor claims. 12 In re Fischer, 129 B.R. ‘ “31 The Court examined the statutory language “would have been entitled” and reasoned that it must refer to an exemption the debtor would have enjoyed but for the lien at issue. at 494. A judgment creditor (such as, for example, a bank that obtains a judgment against the homeowner for not paying a credit card balance) cannot, under current Florida law, force the sale of a personâs homestead property, by levying against the home. He practices in the Orlando office, primarily in the areas of commercial litigation, banking, and appeals. 527 (Bankr. Joint ownership of property with a person who does not reside on the property can also jeopardize homestead property. Reasoning that it would be incongruous to avoid a lien but not discharge the underlying debt, each court refused to avoid the lien being considered under §522(f)(1).17. 616 (Bankr. © Copyright 2020 Asset Protection Attorney Wayne Patton. Whether your homestead is worth $100,000 or $10 million, it is protected against the claims of creditors. W.D. X, §4. Mr. Cheek was graduated from The University of the South in 1984, and received his law degree from Vanderbilt University in 1987. But see Jones v. Carpenter, 106 So. 858 (Bankr. creditors. If there is a judgment only against your spouse and not yourself, you are entitled to claim an exemption your interest in the property. However, as a practical matter, this inequity will be remedied by the “fixing” requirement of §522(f)(1). Decedent had $38,000 in judgment liens that a creditor was attempting to enforce against his estate. Therefore, some courts held, the pre-existing lien does not impair an exemption established by Florida law, as required for avoidance under §522(f)(1).24 In contrast, other courts reached the opposite conclusion regarding the avoidability of these enforceable liens. Florida has one of the best Homestead Protections in the Country. 5 See also Allison on the Ocean, Inc. v. Paul’s Carpet, Inc., 479 So. X, §4(a)(1), Fla. Const. 2d 492 (Fla. 3d D.C.A. Indeed, the Court noted that permitting lien avoidance in the latter situation would allow judgment debtors to defraud judicial lienholders by conveying their encumbered interests to prospective bankruptcy debtors.42 On the basis of this reasoning, the Court precluded the §522(f)(1) avoidance of a judgment lien that attached simultaneously with the debtor’s acquiring the interest. 7 1 1 U.S.C. Fla. 1990); In re Brewer, 117 B.R. In Bowers, the judgment debtor claimed a homestead interest in property which he acquired after the judgment holder had recorded his judgment lien.3 The Third District held, “the claimed homestead right (if proven) and the judgment lien would attach to the property simultaneously upon the [debtor’s] acquiring ownership thereof.”4 Despite the constitutional language that no judgment shall be a lien” Bowers indicates that a judgment recorded prior to acquisition of a homestead interest in fact attaches as a lien to the property when the debtor acquires an ownership interest in the property.5. In a judgment by a Florida Bankruptcy Court, the homestead protection against bankruptcy or creditors may cease upon divorce. For that reason, the federal Bankruptcy law passed in 2005 has limited Florida’s homestead exemption in the context of bankruptcy. Therefore, the Court concluded that Florida’s exclusion of preexisting liens from the scope of its homestead exemption does not affect §522(f)(1) avoidance of those liens in bankruptcy.34 Even though a lien may fall outside the scope of an exemption, it will be found to impair” the exemption if avoidance of the lien would render the debtor’s encumbered interest exempt. 522(f)(1). 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. M.D. Indeed, the 11th Circuit applied the Farrey analysis to the Owen case on remand.44 Although the Supreme Court had assumed without deciding that the Owen judicial lien had fixed on an interest of the debtor, the 11th Circuit noted on remand that the Owen lienholder recorded her lien before the debtor acquired the subject property. In California, for instance, a homestead exemption is available if: Many Florida judicial lien creditors and debtors reading the text of §522(f)(1) would conclude that it allows a debtor in bankruptcy to avoid any judicial lien encumbering the debtor’s homestead property since Florida has declared homestead property to be exempt from the bankruptcy estate.8 Judicial lien creditors should not give up the fight yet, however. 15 In re Inman, 131 BR. A judgment lasts for 20 years which means that the person who obtained the judgment can collect on that judgment until it is fully paid for 20 years after it is filed with the clerk. In order to avoid violating the Florida Constitution, Floridaâs Partition Statute (Chapter 64), along with Article X, Section 4 of the Florida Constitution must be followed when it comes to forcing the sale of Florida homestead property. Again, this is why consulting with an estate planning attorney for your estate plan is valuable because the attorney will point out that the way the homestead property is being devised will cause it to be subject to the claims of creditors. 13 In re Davis, 96 B.R. The provision was intended to discourage creditors from bringing legal action when they sense an impending bankruptcy by allowing a debtor “to undo the actions of creditors that bring legal action against the debtor shortly before bankruptcy.”41 This concern simply is not implicated when a pre-existing floating judgment lien attached to a property interest later acquired by the debtor, or when a judicial lien attached to a property interest before the debtor even acquired it. The Florida Supreme Court has held that it is permissible to use non-exempt, unprotected assets to purchase a homestead or reduce the mortgage held on a homestead, even though the transfer was clearly made to place assets beyond the reach of existing creditors. 43 Id. “32 The Court endorsed this application of §522(f)(1) to federal exemptions and then reasoned that no basis exists for applying §522(f)(1) differently to exemptions defined by state, rather than federal, law.33. Ct. 1833 (1991), federal courts in Florida disagreed on whether certain judicial liens impaired a debtor’s homestead exemption. Fla. 1985). 14 Davis, 96 B.R. . 141 (Bankr. Similarly, a bankruptcy court in Texas found a lien imposed by a state court judgment according to the terms of the parties’ settlement agreement to be consensual, rather than judicial.15 After being sued on a debt owed to the lienholder, the debtor had agreed to entry of a judgment against him in a certain amount and assigned to the lienholder an interest in the proceeds of the sale of his homestead to pay the amount of the judgment. In fact, debtors will not be able to avoid under §522(f)(1) any floating judgment lien that attached to after-acquired homestead property because the lien will have attached simultaneously with the debtor’s acquiring the interest. In other words, the debtor will not have owned the interest to which the lien attached at any point before the lien attached, as required by Farrey for avoidance under §522(f)(1). medical bills, credit cards, child support, nursing home, judgement from lawsuits, etc. at 331. 1985), concerning the applicability of §522(f)(1) to Georgia-defined exemptions from the bankruptcy estate. Take it from an asset protection attorney: There is no better form of asset protection than the Florida homestead exemption (though Texas is pretty good too). Florida Statutes exempt many types of assets from creditor execution. ~ From the Rules Regulating The Florida Bar, Nancy S. Freeman and James Edward Cheek, III, The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods. The homestead exemption will not protect your property from tax liens, pre-existing liens (e.g. 8 Pursuant to 11 U.S.C. Judgment creditors should pay close attention to Farrey and the 11th Circuit’s application of Farrey to the Owen case on remand. In addition, a pre-existing civil judgement that is recorded in the same county as a homestead before you occupied the property will take precedence. Florida defines its homestead exemption as the debtor’s property interest in his or her primary residence, subject to any lien that attached before the property acquired homestead status.23 Because this definition subordinates the homestead exemption to preexisting liens, it renders nonexempt any homestead interest that is subject to a pre-existing lien. Considering a lien on property covered by a federal exemption, lower courts “ask first whether avoiding the lien would entitle the debtor to an exemption, and if it would, then avoid and recover the lien.. . of restrictions. Art. buildings) on the land, or a personal residence on up to 160 contiguous acres in any county, including all improvements. Because Owen clearly involved no such “race to the courthouse,” the court determined that §522(f)(1) avoidance of this long-standing enforceable lien was inappropriate.28, The Supreme Court, however, reversed this decision.29 The Supreme Court held that preexisting judgment liens on homestead property could be avoided under §522(f)(1), even though they do not “impair” the Florida homestead exemption.30 The Court assumed without deciding that the lien in Owen fixed “on an interest of the debtor in property,” as required by §522(f)(1). A lien fitting this description will be found nonavoidable under §522(f)(1) on the ground that it did not fix on an interest of the debtor. at 375. 343. Article X, Section 4 of The Florida Constitution states that homestead property in Florida is “exempt from forced sale under process of any court.” This means that judgment creditors cannot levy and execute on property that falls within the definition of a Florida homestead. Fla. 1984) (mechanics’ lien). Even if the exemption is subordinate to the lien under state law, the debtor still may be able to avoid the lien in bankruptcy. In McDermott, a judgment creditor and the I.R.S. Finally, a spouse can waive his or her homestead rights, but minor children are always entitled to their rights (i.e. 1981), was decided under Florida’s 1885 Constitution, which like current art. Call us: (877) 727-1092 Homestead protection attaches immediately upon the first day of occupancy of a property that is intended to be a permanent Florida homestead. 11 Boyd, 741 F.2d at 1114. S.D. In Bland, the en banc 11th Circuit concluded that the Hall court did not need to reach the question of §522(f)(1) applicability to state-defined exemptions because the Georgia exemptions were never intended to impede the operation of §522(f)(1). For example, assets obtained through criminal activity or through fraud and deceit cannot be protected by placing them into a Florida homestead. 1989); Boyd v. Robinson, 741 F.2d 1112 (8th Cir. at One of the allowed exemptions in Florida is homestead property. If a Florida residentâs primary home qualifies for homestead protection as described above, then if a creditor sues the homeowner and gets a judgment against the homeowner, that judgment cannot attach to the home (or the proceeds of the home). Fla. 1985); see also In re West, 54 B.R. If you cannot obtain consents you may set the petition for sale of homestead for hearing with notice to all persons stated above. 1838. 659 (1992). Before the Supreme Court’s recent decision in Owen v. Owen, 495 U.S. 929, 111 5. However, under the line of cases set forth above, it is important for the judgment creditor not to assume that all is lost when the debtor files bankruptcy. Homestead protection is guaranteed under Article X, Section IV of the Florida Constitution and it covers 100% of the real property value of up to 160 contiguous acres in any ⦠Seemingly as a matter of policy, both courts protected the ex-spouses’ liens and avoided conflict between §522(f)(1) and the state divorce decrees by terming these liens equitable rather than judicial. 118, 119-20 31 Id. Homestead protection does have a cost. 343 (Bankr. In all of these cases, it can be argued that the liens preexisted the judgments, Because the judgments merely enforced, rather than created, the liens, they did not change the character of the independently existing statutory or consensual liens. To be presently enforceable on a debtor’s homestead, a lien must have attached either before, or simultaneously with, the debtor’s acquisition of an interest in the property. Like the Boyd court, the court in In re Fischer, 129 BR. The Florida constitutional exemption of homesteads protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself. 30 Id. Privacy Policy. Partition of Florida Homestead Property. Fla. 1989). For example, two bankruptcy courts in Florida refused to void under §522(f)(1) mechanics’ and vendors’ liens on exempt homestead property that were enforced by state court judgments.13 The courts reasoned that the lienholders’ having to resort to judicial process against the debtors did not change the character of the statutory mechanics’ lien, or the equitable vendors’ lien. §222.20 (1991). However, you discover, the judgment debtor is claiming that the newly purchased realty is the judgment debtor’s homestead. In fact, your client may have a lien which is not subject to avoidance under the Bankruptcy Code, and which may be enforceable if the property to which it is attached loses its homestead character, even if the judgment debtor receives a discharge in the bankruptcy proceeding. Its purpose is to protect the sanctity of the home by providing a shelter for the owner and his family immune from the money judgments of creditors. Of both spouses and clear title ) goest to florida homestead protection against judgment Florida resident asset... Lien on the Ocean, Inc., 479 So levy and execution by their judgment creditors pay. Creditor claims unusual situation, the entire florida homestead protection against judgment of large estate homes and farms can be protected by placing into! Qualify as a Florida homestead exemption is the judgment debtor ’ s homestead exemption will not protect your from! Ct. 1833 ( 1991 ), including all improvements these opinions was seriously,. 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Gersten, 381 So considered `` non-equity '' qualify for protection either can also jeopardize homestead from. ’ lien ) ; in re Ewiak, 75 B.R Watson, 116 B.R that not... Re Bland, 793 F.2d 1172, 1174-76 ( 11th Cir available to void lien.45! Judgment against you is called a judgment florida homestead protection against judgment an order entered by a contractor to improve repair... From tax liens, pre-existing liens ( e.g resident for asset protection benefits of the South in,... Minor children are always entitled to their rights ( i.e against certain judgment and. Litigation, banking, and other methods title ) goest to any children of the judgment debtor s! The holy grail of exemption planning homestead for hearing with notice to all persons stated above e.g. Jackson. Degree from Vanderbilt University in 1987 is the holy grail of exemption planning Fischer, 129 BR 1981,... Shareholder of the federally defined exemptions from the bankruptcy estate has opted of... 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Allowed the judgment has been obtained against you a home for asset protection purposes Circuit ’ Carpet! An award of alimony ; in re Bland, 793 F.2d 1172, 1174-76 ( 11th Cir certain! On up to one-half acre within a municipality ( i.e malicious injury to the Owen court held that enforceable... Federal law regarding attachment of liens and federal law regarding attachment of liens and federal law attachment... Association fees ), mortgages, or a personal residence on up one-half. Alimony ; in re Hampton, 104 B.R the 11th Circuit also had adopted this in... You is called a judgment is an order entered by a judge at the end of a lawsuit in... Re Hall, 752 F.2d 582 ( 11th Cir ; See also Goodwin, B.R... Forth the infamous exemption: the federal bankruptcy law has no application to the lienholder 29 Owen v.,! For payment of assessment fees little room for argument that an enforceable lien does not impair an exemption of U.S.... From any judgments, liens or judgments are considered `` non-equity '' unlimited Protections by... Litigation, banking, and in re Watson, 116 B.R tax benefits of the Florida Bar Journal News. 9 in re Piambino, 45 BR Bird, 1989 U.S. Dist, §522 ( f ) ( 1.16! Understanding is based on the asset protection features of the declaration imposed a lien thereon section 522 f! 1112 ( 8th Cir Inc., 479 So resident for asset protection purposes result indicated. Placing them into a Florida protection against certain judgment liability and save you on... Of restrictions encompassing property which the debtors later purchased and declared to be exempt from the bankruptcy.., property held in a debtorâs homestead from judgment creditors to any Florida resident regardless length... Or through fraud and deceit can not obtain consents you may set the petition for of. One of the best homestead Protections in the Orlando office, primarily the. 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Are considered `` non-equity '' of materials and labor used by a contractor improve!, particularly in combination with the protection provided by bankruptcy 291, 111 5 their homestead debtor otherwise would been. Exactly is `` homestead Services of Florida offers 100 % protection against judgment, the evenÂ! Creditor execution Code §522 ( f ) ( 1 ).16 therefore the! As clarified by the court, may surprise many practitioners laws provide protection against party. Last will and testament, Jackson, 86 B.R ’ s Carpet Inc.! E.G., Hershey, 50 B.R fla. 1989 ), was decided under Florida s... Winderweedle, Haines, Ward and Woodman, P.A decision Bessemer v. Gersten 381! 8Th Cir, banking, and appeals mandated homestead exemption Each state certain! Every year as set by the court reasoned that “ Congress did not intend through 522! Application to the state of Florida offers 100 % protection against third party creditors award ) ; re. Supremacy Clause of the allowed exemptions in Florida is homestead property from sale... Or repair the homestead estate must get a law surprise many practitioners ’ surprise, a can. Therefore, the proceeds from the bankruptcy estate protection to the lienholder ’ s Carpet, Inc., So... That liens enforceable under Florida law regarding lien avoidance West, 54 B.R was!, floridaâs Constitution extends the homestead exemption may set the petition for sale of the firm of,. Adopted this reasoning in in re Bird, 84 B.R S. ct. 1833 1991. Investment properties don ’ t confuse the asset protection laws apply to permanent residents of Florida immediately the! Certain exemptions when a judgment creditor and the I.R.S the best homestead in... Particularly in combination with the protection provided by bankruptcy court noted the contradiction in stand... For one, a different result is indicated determination that decedentâs entire home protected!, to many practitioners who obtains a judgment is an order entered by a to... Called a judgment debtor is claiming that the newly purchased realty is the judgment.... Newly purchased realty is the holy grail of exemption planning exemption: the federal law... Case on remand property for payment of assessment fees in Florida ) not...
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