The issue of what constitutes Florida creditor protected homestead real property has been litigated for years in the Florida courts. Most recently, the 2nd DCA in Geraci ex rel. Geraci v. Sunstar EMS, (Fla. 2d DCA June 27, 2012) [enhanced version available to Lexis.com subscribers] brought some much needed clarification to the issue. In Geraci the 2nd DCA addressed the application of Article X, Section 4(a)(1) of the Florida Constitution to the homestead exemption from forced sale to satisfy a creditors' claims.
According to the 2d DCA, whether or not your residence qualifies for Florida's homestead creditor protection depends on whether you intend to make it your principal and primary residence, NOT what kind of ownership interest you may have. Fee simple, long-term lease, or co-op, it's all creditor-protected homestead property if you intend to make it your principal and primary residence. In reaching its ruling the 2nd DCA found that Article X, Section 4(a) of the Florida Constitution does not distinguish between the different kinds of ownership interests that are entitled to the Florida homestead exemption against forced sale.
View more information from Marc J. Soss at http://www.fl-estateplanning.com/ and http://info.fl-estateplanning.com/
Marc Soss' practice focuses on estate and tax planning; probate and trust administration and litigation; guardianship law; and corporate law in Southwest Florida. Marc is a frequent contributor to LISI and has published articles and been quoted in the Florida Bar, Rhode Island Bar, North Carolina Bar, Association of the United States Navy, Lawyers USA, Military.Com, Forbes.Com, and CNN Business. Marc also serves as an officer in the United States Naval Reserve.
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