Florida homestead is a special category of real estate that is protected by both the Florida constitution and various statutes.
The Florida constitution protects homestead property (which can include up to 160 acres outside a municipality or a half acre inside a municipality–more on that here) that is owned by a natural person who is a Florida resident (see here). If the property is located outside a municipality, buildings and other structures on that property will also be considered part of the homestead, even if used for business purposes. Ancillary buildings or other structures used for business purposes would not be protected if the home is located within a municipality.
The “owned by a natural person” language in the Florida constitution has been interpreted broadly to protect assets that aren’t exactly “owned” in the common sense of the word. Other forms of ownership—such as beneficial or equitable interests in property, undivided interests in property, or the present right to possession of the property—have been found to qualify as homesteads. For example, one case held that a husband’s equitable interest in property that was titled in his wife’s name was enough to qualify as a homestead. The same rationale has been used to a home that is held in trust by a trustee.
In addition to these constitutional protections, several statutory protections have been enacted to broaden the asset protection benefits of Florida homestead. For example, Florida Statutes § 222.05 provides:
Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid.
This provision allows a debtor to protect a mobile home (mobile homes don’t qualify as real estate and therefore aren’t protected in most states). And this protection is available even if the person doesn’t own the real estate on which the home is located. This provision has been interpreted expansively, allowing a 3,000 foot houseboat, a motor coach, a travel trailer, and even a motor boat to qualify as homesteads.
The “by lease or otherwise” language of Florida Statutes § 222.05 also makes it clear that a leasehold form of ownership can qualify for protection from forced sale.
Practice Note: How Florida homestead is defined is important. Property that meets the constitutional definition of “homestead” for asset protection purposes will also constitute a “homestead” for other purposes, such as determining whether there are restrictions on transfer of the property or whether a person’s heirs can benefit from the asset protection benefits of the homestead. Unless the property meets the constitutional definition of a homestead, it is not a homestead for purposes of the limitation on transfer and inheritability of homestead protection.
Statutory protection is less comprehensive than constitutional protection. While both forms of protection will shield a property from sale by creditors, constitutional protection is inheritable and protects the property from transfer in certain circumstances. And constitutional protection applies only to real estate.