Florida homestead, and what a roll shows about it

0:27Two exemptions, and only one of them is applied for

Start with the word itself, because Florida runs two exemptions under it. And your search of a property roll returns the one that matters less.

The first is the constitutional exemption from forced sale, at section 4 of Article 10 of the State Constitution. Nobody applies for it. It attaches because a person lives there, and it's why you can't levy on the home.

The second is the homestead tax exemption, which reduces the assessed value of an owner-occupied residence. That one is applied for. On a form, by a deadline, with a driver license and a Social Security number attached. And section 196.011, subsection 8, permits no application after the late deadline in September, whatever the reason for missing it.

So the flag on the roll is the second exemption. A tax status, applied for by somebody on a deadline, and recorded because a tax office granted it.

1:28Florida limits the area, New York limits the value

Now, the two states, because they protect a home by opposite mechanisms. Florida limits the area, New York limits the value. Carry one state's instinct into the other and you'll be confidently wrong.

Florida sets no ceiling on value at all. It sets a ceiling on area. One half acre inside the limits of a municipality, and 160 acres outside them.

So a house worth $12,000,000 on a quarter acre in Fort Lauderdale is exempt in full. And Fla. Stat. 222.03 only lets a dissatisfied creditor have the land surveyed.

New York does the reverse. CPLR 5206, subsection A, exempts a principal residence to a figure in value above liens and encumbrances. $150,000 in 10 downstate counties. 125,000 in six more. 75,000 everywhere else.

And subsection D says what happens above that line. The exemption isn't void because the property is worth more. The lien attaches to the surplus, and under subsection E you may bring a proceeding for the sale of the excess.

So New York asks an arithmetic question, and the answer is frequently a number greater than zero. Florida asks a question about geography. And inside a municipality, on an ordinary lot, the answer to that one is nothing at all.

3:00Four claims the exemption does not stop

Then there's what the exemption doesn't stop. Four claims, and they're listed.

Fla. Stat. 222.01, subsection 5, tracks the constitution itself.

Liens and judgments for taxes and assessments on the property. For obligations contracted for its purchase. For labor, services or materials furnished to repair or improve it. And for other obligations contracted for labor performed on it.

Now read that list by what it leaves out. A purchase money mortgage reaches a homestead, because it financed the purchase. A construction lien reaches it, because it paid for work on the building. A tax lien reaches it. And a judgment on an ordinary debt, which is what most judgment creditors are holding, is not on that list.

3:51The notice of homestead, and the 45 days it starts

So the owner has a move here. And it starts a clock against you.

Subsection 2 creates a recorded instrument most judgment creditors have never seen.

Once a certified copy of your judgment is in the public records under chapter 55, an owner who holds a contract to sell, or a lender's commitment, may record a notice of homestead. It names you, at the address on that judgment, and certifies under oath that your lien isn't valid against the property.

The clerk mails you a copy, certified, return receipt requested. And subsection 3 says service is complete on mailing. Nobody has to sign for it.

Then subsection 4 does the damage. A lienor who fails, within 45 days, either to sue for a declaratory judgment on the homestead status, or to foreclose the lien and file a lis pendens, has a lien deemed not to attach. As against any buyer or lender taking under that contract within 180 days.

Your lien isn't destroyed. The same subsection preserves it for whenever the property loses homestead status. What's lost is the sale.

And the operational fact here is the address. Because if you moved since the judgment, you're served by a letter arriving nowhere, with 45 days running from the day it was posted.

5:14What the flag on the roll cannot tell you

Now, what the flag can't tell you. It fails in both directions.

It can be there when the protection isn't. Permanent residence is determined as of the first of January, so an owner who moved out in February keeps the flag for that tax year, and the appraiser finds out only if somebody tells it. Broward puts the penalty for not reporting at up to 10 years of back taxes, a 50% penalty and 15% interest. That's the penalty a county writes when the reporting doesn't happen on its own.

And it can be missing when the protection isn't. Somebody who bought in February, or never filed, or missed the deadline, has no flag and may be living there as a permanent resident all the same. Absence of a flag is absence of an application. Nothing more.

And the year of a sale is the worst of it, because the flag belongs to the wrong person. Broward tells new buyers so itself. You inherit the seller's exemption status for the current tax year, the seller's exemptions come off at the end of it, and you file in your own name.

So a parcel sold in March carries a homestead flag earned by somebody who doesn't own it any more.

6:31How to check it yourself

So how do you check it yourself. Four steps, and none of them settles the constitutional question.

Pull the parcel on the county appraiser's site and read the exemption lines rather than a summary, noting which tax year each one is stated for. Then read the most recent deed and compare its recording date against the first of January of that year. A deed recorded after it means the flag was earned by the grantor.

Then search the official records for a notice of homestead in the owner's name. Because if one is on file against a judgment, those 45 days have already started.

And check whether the parcel sits inside a municipality, since the limit is half an acre inside one and 160 acres outside. Those two lines are the only part of the constitutional test a register can speak to.

7:25What this does not cover

Here's what I can't tell you.

Whether a particular property is a homestead. Which is the only question that matters, and the one no public record answers.

The exemption turns on permanent residence, and residence is a fact about a person rather than about a parcel. No county register records it. The tax exemption is evidence that somebody asserted it under oath on a form. It is not a finding that it was true. And Fla. Stat. 222.29 removes it altogether for a fraudulent transfer, which turns on intent and value that no register holds either.

I'm not a lawyer and none of this is advice. Whether a homestead claim stands between your judgment and a house is a question for counsel.

What I can tell you is narrower. The flag you're reading is a tax status, granted for a stated year. And in the year of a sale, it belongs to the seller.

So before you write off a Florida house, go and check whose year that flag belongs to. And the piece on what a property roll shows is worth reading beside this, because the flag lives on the roll.