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Law Offices of Stephen Orchard Law Offices of Stephen Orchard

When Will A Florida Court Consider Homestead Property To Be Abandoned?


Florida has a strong bankruptcy exemption for homestead property. So long as property has been owned for a period of time before the bankruptcy is filed, and so long as the property is either less than ½ an acre, or 160 acres in designated rural areas, then it doesn’t matter how much equity you have in the property—it is all safe from being taken by a bankruptcy court during your bankruptcy.

What is Homestead? 

For most of us, the determination of what is homestead property is easy. We buy a house, we live there, and it’s our homestead. In fact, even if not technically designated as a homestead (which it should be, for the enormous tax benefits), a bankruptcy court would consider such property to be homestead.

But can you lose homestead status? You may think that it couldn’t happen to you as you have every intent of remaining in the property and living there.

But in life, things happen. Maybe you get called away for work and have to live somewhere else for many months. Maybe you have a financial hardship and have to rent out the property while you live somewhere cheaper.

Losing Homestead Status

How do you lose homestead status? And can you keep homestead property designated as homestead, even if you are no longer living there?

For creditors to show that you should not have the exemption because you have abandoned the homestead, creditors or the bankruptcy trustee must make a showing that you intended to abandon the property as your homestead.

You will note that the burden of proof is on the trustee and creditors—they have to show that you intended to abandon the property. You don’t have to prove that you intended to maintain the property as a homestead. The burden is on them, not you.

Intent Matters

Courts will look to your intent, as opposed to any contracts or technicalities. Say, for example, that you have to live elsewhere for an extended period of time because of your work. That could be considered involuntary, and courts will not consider involuntary conditions that require that you live somewhere else to show an intent to abandon homestead property.

But even a voluntary absence won’t be considered abandonment of the homestead in many cases.

Let’s say you want to spend a year living in the Rocky Mountains. Or you want to allow a sick relative to live in the homesteaded property instead of you until he or she gets better. These are both voluntary—but so long as there is still an intent to eventually return to, and live in the property. Most Florida courts won’t find abandonment.

What is Intent?

To find intent, courts will look to see if you are maintaining the property, or if you are paying some expenses on the property, or whether you are doing any number of things that people do, when they intend to eventually return to, and live in, a home.

Contact the Boca Raton bankruptcy attorneys at the Law Offices of Stephen Orchard at 561-455-7961 for help understanding bankruptcy exemptions that are available to you in your bankruptcy case.


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