Florida Homestead Occupancy Requirements

Florida’s homestead exemption is the most powerful asset protection tool available to residents of this state. The exemption shields an unlimited amount of equity in a debtor’s primary residence from the claims of judgment creditors. But the protection does not arise from ownership alone. The Florida Constitution requires that the owner occupy the property as a permanent residence, and the timing of that occupancy determines whether the homestead shield is in place when a creditor strikes. Understanding precisely when homestead protection attaches, what constitutes sufficient occupancy, and how courts evaluate a debtor’s intent is critical for anyone relocating to Florida or purchasing a new residence with asset protection objectives in mind.

When Homestead Protection Attaches

Homestead protection under Article X, Section 4 of the Florida Constitution attaches at the moment the owner occupies the property with the intent to make it a permanent residence. There is no waiting period, no minimum number of days of occupancy, and no paperwork that must be filed before the exemption takes effect. On the day a purchaser closes on a home, takes the keys, and moves in with the intent to remain permanently, the property is exempt from forced sale by judgment creditors. This immediacy distinguishes Florida’s creditor protection from the homestead tax exemption, which requires a formal application to the county property appraiser and uses January 1 of each year as its qualifying date.

The Florida Supreme Court confirmed this principle in Havoco of America, Ltd. v. Hill, holding that the conversion of non-exempt assets into homestead equity cannot be treated as a fraudulent conveyance under state law. A debtor who sells stocks, liquidates a business, or withdraws funds from an unprotected bank account and uses those funds to purchase a Florida residence receives immediate homestead protection at the moment of occupancy. The intent to shield assets from creditors does not defeat the constitutional exemption. The only exception recognized in Havoco is where the funds used to acquire the homestead were themselves obtained through fraud or deceit, in which case an equitable lien may be imposed on the property.

The Occupancy Requirement

The constitutional text requires that the owner “maintain thereon the permanent residence of the owner.” Florida courts have interpreted this language to require actual physical occupancy of the property as a dwelling. A bare lot, regardless of the owner’s intent to build, does not satisfy this requirement. The 1882 decision in Drucker v. Rothstein established that a parcel of land never occupied as a dwelling place is not a homestead, even if the owner has placed building materials on the lot and contracted with a builder. A more recent federal court decision, Wechsler v. Carrington, reached the same conclusion when a debtor purchased a condominium and began moving belongings into the unit but had not yet physically resided there when a judgment was recorded.

This rule creates a window of vulnerability for anyone building a custom home on a vacant lot. During the construction period, the property is not protected, and any judgment recorded in the county during that window will attach as a lien. Once a judgment lien attaches to a non-homestead property, subsequent occupancy does not erase the lien. The debtor is left owning a homestead burdened by a pre-existing encumbrance. Strategies for managing this vulnerability are discussed in the separate article on homestead during construction.

The courts have recognized a narrow exception to the requirement of a completed dwelling. Where the owner erects a tent, places a mobile home, or occupies a barn on the land and physically lives there while a permanent structure is being built, the occupancy requirement may be satisfied. The Florida Supreme Court in Semple v. Semple explained that homestead character will attach where it is clearly the manifest intention of the owner to occupy the premises immediately as a home and that intention is evidenced by specific acts not compatible with a different intention. The critical distinction is between a debtor who actually lives on the land in some form of shelter and a debtor who merely intends to live there in the future.

Family Member Occupancy

The debtor does not have to personally reside in the homestead at all times. The constitutional protection extends to property that is occupied as the principal residence of the debtor’s family. If the owner is temporarily or permanently away from the home but a spouse, dependent child, or other family member continues to occupy the property as the family’s permanent residence, the homestead exemption remains intact. This principle is particularly relevant for business owners who travel extensively, serve in the military, or maintain a work schedule that takes them away from home for extended periods. As long as the family’s principal residence remains the Florida property and there is no abandonment of the homestead intent, the protection continues.

Temporary Absence and the Single-Homestead Rule

Florida law does not require continuous, uninterrupted occupancy. A homeowner who spends several months each year at a second home in another state does not forfeit the Florida homestead exemption, provided the Florida property remains the owner’s permanent and primary residence. The relevant inquiry is the owner’s subjective intent to return and to treat the Florida home as the principal domicile, not the number of days physically spent at the property in any given year. Florida law does not impose a minimum number of annual residency days for homestead creditor protection purposes.

However, a debtor may claim only one homestead. Article X, Section 4 protects the residence “of the owner,” and Florida courts have consistently held that a person may designate only one property as a homestead at any given time. A debtor who owns a home in Naples and a condominium in New York must choose which property is the permanent residence. The other property receives no homestead protection, even if the debtor spends substantial time there. For clients who maintain residences in multiple states, establishing Florida domicile with clarity and documentation is essential.

Proving Intent: What Courts Consider

When a creditor challenges a debtor’s claim of homestead, the burden falls on the debtor to demonstrate that the property is in fact the permanent residence. Courts evaluate the totality of the circumstances, and no single factor is dispositive. The evidence that courts find most persuasive includes the address on the debtor’s Florida driver’s license, voter registration, automobile registration, and federal and state tax returns. Courts also consider where the debtor’s children attend school, where the debtor receives mail and maintains bank accounts, and whether the debtor has filed a declaration of domicile with the clerk of the circuit court.

Section 222.17 of the Florida Statutes provides a mechanism for filing a sworn declaration of domicile. The declaration is a statement recorded with the clerk of the circuit court in the county of residence, affirming that the declarant’s Florida home is the principal and permanent place of abode. Filing this declaration is not required to establish homestead protection for creditor purposes. The exemption is self-executing upon occupancy and intent. However, the declaration creates a contemporaneous, sworn record that can be valuable evidence if a creditor later challenges the debtor’s homestead claim. For clients relocating from another state, filing the declaration promptly after moving into the Florida home is a simple step that strengthens the evidentiary record.

Creditor Protection Versus Tax Exemption

Many homeowners confuse the requirements for homestead creditor protection with the requirements for the homestead property tax exemption. The two are governed by different constitutional provisions and have different qualifying procedures. The creditor protection under Article X, Section 4 is automatic upon occupancy and intent. No application is necessary, no filing deadline applies, and the protection is not limited to any calendar year. The tax exemption under Article VII, Section 6, by contrast, requires the owner to file an application with the county property appraiser, and the qualifying date is January 1 of the tax year. A homeowner who purchases a property in March receives immediate creditor protection but will not qualify for the tax exemption until the following January 1, assuming the application is timely filed by March 1 of the following year.

This distinction has particular significance for clients who maintain homes in other states and may not qualify for the Florida homestead tax exemption due to the January 1 occupancy requirement or other administrative rules. The failure to receive the tax exemption does not affect the creditor protection analysis. A debtor who occupies a Florida home as a permanent residence with the intent to remain is fully protected from forced sale by judgment creditors regardless of whether the property appraiser has granted the tax exemption.

The Race Between Occupancy and Judgment Liens

The timing of homestead occupancy relative to the recording of a judgment lien is one of the most consequential issues in Florida asset protection planning. Under Florida law, a recorded judgment creates a “floating lien” that attaches to any non-homestead real property the debtor owns in the county where the judgment is recorded. If the debtor purchases property in a county where a judgment has already been recorded, the lien attaches at the moment of acquisition, simultaneously with the debtor’s new ownership interest. Subsequent occupancy as a homestead does not retroactively defeat the lien.

This principle means that a debtor facing a pending lawsuit or an existing judgment should not purchase real property in a county where the judgment has been or is likely to be recorded without careful advance planning. The debtor must establish homestead protection before the judgment is recorded in that county. The practical sequence is critical: close on the property, occupy it immediately as a permanent residence, and ensure that homestead status is established before any judgment is entered and recorded. For clients relocating from out of state, this often means coordinating the purchase, the physical move, and the change of domicile documentation to minimize the gap between acquisition and full homestead status.

Practical Planning Considerations

Clients who are moving to Florida for asset protection purposes should approach the transition methodically. The first priority is to identify and purchase the homestead property. The second priority is to physically occupy the home on the day of closing or as close to closing as possible. The third priority is to change all domicile-related documents, including the driver’s license, voter registration, vehicle registration, and mailing addresses, to the Florida address. Filing a declaration of domicile with the circuit court clerk and applying for the homestead tax exemption with the county property appraiser further solidify the record. These steps should be completed before any known creditor records a judgment in the county of the new homestead.

For clients who already own a Florida home, the most important ongoing consideration is the avoidance of any action that could be characterized as abandonment. Renting the entire homestead to a third party, listing the property for sale without intent to purchase a replacement, or physically relocating to another state without maintaining Florida as the permanent domicile can each result in the loss of homestead protection. Once protection is lost through abandonment, any judgment previously recorded in the county will attach to the now-unprotected property, and the debtor cannot restore the exemption merely by moving back in.