The biggest concern for many people facing a possible bankruptcy is whether their home is protected. The Florida constitution provides for a liberal exemption of homestead property. Under Florida law, there is no limit on the value of a property, but there is a limit on size of the land depending on whether the property is inside or outside of municipality or city limits. If the property is outside of a municipality or city limits, the limit is 160 acres of contiguous land and improvements thereon. If the property is inside the municipality or city limits, the limit is only one-half acre. This provision was included in the Florida Constitution enacted in 1868 when there were very few municipalities, approximately 19. Today, there are over 400 municipalities in Florida. This exemption is limited to the residence of the owner or the owner's family. To qualify as homestead, the property must be the permanent residence of the owner or his/her family.
There is a federal bankruptcy provision that limits the value of a homestead exemption when the owner has owned the property for less than 1215 days. The current limitation on the exemption for property owned under 1215 days is $189,050.00 per debtor. This amount adjusts every three years. Additionally, to claim the Florida bankruptcy exemptions, a debtor must have resided in Florida for two years prior to the filing of the bankruptcy case.
At least half of Florida's population live within a municipality or city limit. The other half live in unincorporated county areas. This is very significant due to the limitation on homestead land size for those owning property within a municipality and those outside a municipality. The result can be quite unfair. For example, most residences on the coastal beaches and intercoastal are within a municipality. These properties tend to be quite more valuable despite being situated on much less land. A beach front home valued at a million dollars would be exempt if it is situated on one-half acre or less, while another property valued at three-hundred thousand may not be fully exempt because it is located on more than one-half acre. Many municipalities or cities do not have any unincorporated areas, resulting in a limitation of one-half acre on homestead protection for all homes within that municipality or city.
In many situations, the application of the size limitations are unfair with the more wealthy citizens benefitting more than those of less wealth. Today there are far more municipalities than in 1868 which has led to the discriminatory nature of this provision. It is time for a constitutional amendment to fix the disparity of treatment and what I believe is discrimination between people similarly situated, that being landowners in Florida.
If you are facing a possible bankruptcy, be sure to seek advice of an experienced bankruptcy attorney who can advise you of your rights.