By: David M. Garten, Esq.

ARTICLE:  Abandonment Of Homestead From An Elder Law Perspective

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.”