Non-Citizen Homestead Protection in Florida

Florida homestead protection is available to non-citizens, but the scope of protection depends on immigration status. The constitutional creditor protection and the property tax exemption are governed by different provisions of the Florida Constitution, and courts apply different standards to each. A non-citizen who qualifies for one form of homestead protection may not qualify for the other.

The Permanent Residence Requirement

Both the creditor protection and the tax exemption require that the homeowner’s property serve as a permanent residence. This is where immigration status becomes relevant. A person who does not have the legal right to remain permanently in the United States may have difficulty establishing the intent to permanently reside in a Florida home.

The Florida Supreme Court addressed this issue in Juarrero v. McNayr, 157 So.2d 79 (Fla. 1963), holding that a person in the United States on a temporary visa cannot claim homestead because the visa holder has no legal ability to convert a temporary residence into a permanent one. Because the visa will eventually expire, the holder cannot form the requisite intent to stay permanently.

This principle has been applied in subsequent cases. A person on a tourist visa, a student visa, or another nonimmigrant visa generally cannot establish the subjective intent to permanently reside in Florida because federal immigration law may compel the person to leave the country when the visa expires.

Permanent Residents and Green Card Holders

U.S. citizenship is not required for Florida homestead protection. A lawful permanent resident who holds a green card has the legal right to reside in the United States indefinitely and can establish the intent to make a Florida property a permanent home. Green card holders qualify for homestead protection on the same basis as U.S. citizens, provided they meet the standard occupancy and intent requirements.

The Dependent Exception: Garcia v. Andonie

The Florida Supreme Court significantly expanded homestead eligibility for non-citizens in Garcia v. Andonie, 101 So.3d 339 (Fla. 2012). In that case, a married couple held E-2 investor visas, which are temporary nonimmigrant visas. Under the traditional rule, they could not claim homestead because their legal right to remain in the United States was temporary. However, the couple had minor children who were born in the United States and were therefore U.S. citizens.

The Court held that the homestead provision protects not only the homeowner but also the homeowner’s family and dependents. The Florida Constitution allows a homeowner to establish homestead entitlement in two independent ways: by maintaining the property as the permanent residence of the owner, or by maintaining the property as the permanent residence of another person legally or naturally dependent upon the owner. Because the couple’s U.S.-citizen children resided permanently in the home, the parents qualified for the homestead exemption through their dependents even though the parents themselves could not establish permanent residency.

This decision opened homestead protection to non-citizen homeowners on temporary visas who have U.S.-citizen or permanent-resident dependents living in the home. It applies to both the property tax exemption and, by extension, the creditor protection.

Creditor Protection vs. Tax Exemption: Different Standards

One of the most important distinctions in this area is the difference between the homestead creditor protection under Article X, Section 4 of the Florida Constitution and the homestead tax exemption under Article VII, Section 6. Courts apply different interpretive standards to each provision.

The tax exemption is strictly construed. When there is doubt about whether a homeowner qualifies, courts must rule against the homeowner. This reflects the policy that tax exemptions are disfavored and should not be extended beyond their clear terms.

The creditor protection is liberally construed. When there is doubt, courts must rule in favor of the homeowner. This reflects the constitutional policy of protecting families from the misfortune of debt.

This distinction matters for non-citizens. A Florida appellate court held that a foreign national who did not qualify for the homestead tax exemption could still qualify for the creditor protection. The court reasoned that eligibility for the tax exemption and eligibility for the creditor protection are analyzed under different constitutional provisions with different interpretive frameworks. A denial of the tax exemption does not automatically disqualify the homeowner from creditor protection.

For non-citizen homeowners, this means the creditor protection may be available even in circumstances where the tax exemption is not. The liberal construction standard gives courts more room to find that a non-citizen homeowner who occupies the property with the intent to make it a permanent home qualifies for protection from forced sale.

Undocumented Residents

A person living in Florida without lawful immigration status faces the most difficult path to homestead protection. Under the reasoning of Juarrero and subsequent cases, a person who is present in the United States unlawfully cannot establish the legal ability to permanently reside in Florida. Without the right to remain permanently, the person cannot form the subjective intent that homestead protection requires.

However, the Garcia decision and the dependent exception provide a potential path. If an undocumented homeowner has children or other dependents who are U.S. citizens or lawful permanent residents and those dependents reside in the home, the homeowner may be able to claim homestead protection through the dependent prong.

A bankruptcy court examined a related fact pattern in In re De Bauer, where a non-citizen debtor who had not applied for permanent residency lived in a home with a daughter enrolled in the DACA program who had also applied for a green card. The daughter was married to a U.S. citizen who lived in the home. The court permitted the debtor to claim homestead protection, finding that the daughter’s applications demonstrated sufficient intent to live permanently in Florida and that the homestead exemption extends to protect a debtor’s family members living in the property.

This line of authority is narrow and fact-specific. Courts will examine the totality of the circumstances, including the immigration status of every family member living in the home, whether any family member has applied for permanent residency, and whether the family has established ties to Florida consistent with permanent residence.

Practical Considerations

Non-citizen homeowners should take steps to document their intent to reside permanently in Florida to the extent their immigration status permits. Obtaining a Florida driver’s license, registering to vote (if eligible), filing a declaration of domicile, and claiming the homestead tax exemption with the county property appraiser all support a claim of permanent residence. Homeowners on temporary visas who have U.S.-citizen dependents should ensure the dependents are documented as residing in the home.

For asset protection purposes, non-citizen homeowners should understand that the homestead exemption is the strongest creditor protection available for a primary residence in Florida. If there is any basis to claim homestead, it should be asserted. The liberal construction standard applicable to creditor protection means that borderline cases are resolved in favor of the homeowner. Conversely, non-citizen homeowners who cannot establish eligibility for homestead protection should explore other strategies, such as holding the property as tenants by the entirety with a spouse if one spouse has permanent residency, or structuring ownership to take advantage of other Florida asset protection tools.