Florida’s homestead protection is said to be unlimited, but that term requires clarification. It is unlimited only in the sense that, unlike most other states, Florida’s homestead exemption does not have a dollar limitation. If the home qualifies for protection, it is protected regardless of value. But though there are no limits on the value of the home that can be protected, there are limits on the amount of acreage that can be protected.
Florida homestead protection only protects a homestead “if located outside a municipality, to the extent of 160 acres of contiguous land and improvements thereon …; or if located within a municipality, to the extent of one-half acre of contiguous land.” In other words, the amount of acreage that will be protected by Florida homestead exemption depends on whether the homestead is located within a municipality. If the residence is located within a municipality, only one-half an acre can be protected by the Florida homestead exemption; if the residence is located outside a municipality, up to 160 acres can be protected.
This seems simple enough, but litigation arises from time to time over the application of these rules. Suppose, for example, that a creditor is seeking to enforce a judgment against a resident who owns a full acre of land within a municipality. Only one-half of the land is protected by the Florida homestead exemption. Who gets what?
In this situation, a Florida court is likely to divide the land if at all possible. The creditor would get a half acre; the remaining half-acre would be protected. But if the property cannot be subdivided (for example, due to zoning restrictions), the court can order that the property be sold. The creditor would then receive proceeds of the sale attributable to one-half acre of the property and the homeowner would keep the rest.
Suppose a resident acquires more than a half-acre of land (but less than 160 acres) outside a municipality, but the land is later annexed to become part of a municipality. Does the amount of acreage that is protected change when the property becomes part of a municipality after the person acquired the property?
Thankfully, the law is clear on this issue. The Florida Constitution states that the homestead acreage “shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality.” In other words, the original acreage will be grandfathered in at the time the residence becomes part of a municipality. As long as the same person continues to own the property, the original acreage will be protected. This is one circumstance where it is possible to have more than one-half acre within a municipality that is protected by homestead.
Planning Note: This grandfathered protection applies only to the person or persons owning the homestead prior to the time it became part of the municipality. Homes acquired after the property becomes part of the municipality are subject to the usual half-acre limitation. If homestead protection is important, the grandfathered resident should take care not to make any transfers that would disqualify the property from full homestead protection.
About Jeramie Fortenberry
