Exceptions to Florida Homestead Protection: When Creditors Can Force a Sale

The Florida homestead exemption under Article X, Section 4 of the Florida Constitution provides the broadest creditor protection of any state in the country. No dollar cap limits the exemption, and most civil judgment creditors cannot force the sale of a debtor’s primary residence. The protection is not absolute, however. The Constitution itself carves out specific exceptions, and Florida courts have recognized additional circumstances where creditors can reach homestead property.

Constitutional Exceptions

Exception	Source of Authority	Can Force Sale?	Key Requirement
Purchase money mortgage	Art. X, § 4, Fla. Const.	Yes	Both spouses must join the mortgage
Property taxes	Art. X, § 4, Fla. Const.	Yes	Taxes must be delinquent; tax deed process under § 197.502
Construction liens	Art. X, § 4 / Ch. 713	Yes	Lien must be properly perfected within strict deadlines
HOA / condo association liens	§ 720.3085 / § 718.116	Yes	Treated as consensual lien from governing documents
Federal tax liens (IRS)	Supremacy Clause, U.S. Const.	Rarely in practice	IRS must get court approval; usually waits for sale or refinance
Equitable lien (fraud)	Judicial doctrine — Havoco v. Hill	Yes	Funds obtained by fraud must be traceable into the homestead
Pre-existing lien	General lien priority principles	Yes	Lien must have attached before homestead status was established

The text of Article X, Section 4 identifies three categories of obligations that override homestead protection. These exceptions are written into the Constitution and cannot be changed by the legislature or by judicial interpretation. They apply regardless of the value of the home or the debtor’s financial circumstances.

Purchase Money Mortgages and Consensual Liens

A mortgage on homestead property is the most common exception. When a homeowner borrows money to purchase or refinance a home and grants the lender a mortgage, the homeowner has voluntarily pledged the property as collateral. The lender can foreclose if the borrower defaults.

This exception extends to any consensual lien the homeowner voluntarily creates. A home equity line of credit secured by a mortgage on the homestead falls into this category. So does any loan where both spouses join in executing a mortgage on the homestead. The Constitution requires spousal joinder for a valid mortgage on homestead property. If only one spouse signs, the mortgage may be unenforceable against the non-signing spouse’s homestead interest, though the lender may seek an equitable lien as an alternative remedy.

Property Taxes and Government Assessments

State, county, and municipal governments can force the sale of homestead property to collect unpaid property taxes. This exception covers ad valorem property taxes, special assessments, and tax certificates purchased by third-party investors at tax lien sales. Florida Statute § 197.502 governs the tax deed process, which can ultimately result in the loss of the home if taxes remain unpaid.

Unlike most creditor claims, property tax obligations are unavoidable and arise automatically from ownership. The rationale for this exception is straightforward: allowing homestead protection to shield delinquent taxes would undermine the funding mechanism for local government services.

Construction Liens (Mechanics’ Liens)

Contractors, subcontractors, and material suppliers who perform work on or provide materials for improvements to homestead property can file a construction lien under Chapter 713 of the Florida Statutes. If the lien is properly perfected and the homeowner does not pay, the lien holder can foreclose on the homestead.

This exception reflects the constitutional language protecting liens for “the improvement thereof” from forced sale limitations. The policy rationale is that a person who enhances the value of the homestead should be able to collect payment even against a protected property.

Construction liens on homestead property must comply with strict procedural requirements. Subcontractors and material suppliers must serve a Notice to Owner within 45 days of beginning work. The claim of lien must be recorded within 90 days after the last day of furnishing labor or materials. A foreclosure action must be filed within one year of recording the lien, or within 60 days if the owner files a Notice of Contest. Failure to meet any of these deadlines can extinguish the lien entirely.

HOA and Condominium Association Liens

Homeowner association liens occupy a unique position. The Florida Constitution does not expressly list HOA liens as an exception to homestead protection. However, courts have treated mandatory HOA and condominium association liens as consensual obligations because the homeowner agreed to be bound by the association’s governing documents when purchasing the property.

Florida Statute § 720.3085 authorizes HOAs to record a claim of lien for unpaid assessments and to foreclose if the assessments remain unpaid. The same is true for condominium associations under Florida Statute § 718.116. The lien includes not only the unpaid assessments but also interest, late fees, and attorney’s fees incurred in the collection process. Attorney’s fees in HOA collection actions can accumulate rapidly and often exceed the original unpaid balance.

For asset protection purposes, HOA and condominium liens are treated as exceptions to homestead protection. A homeowner who stops paying association dues and assessments risks losing the home to foreclosure even though general judgment creditors cannot force a sale.

Federal Tax Liens

The Supremacy Clause of the United States Constitution gives federal obligations priority over state exemptions. A federal tax lien filed by the Internal Revenue Service attaches to all property owned by the taxpayer, including homestead property.

The practical effect of a federal tax lien on a homestead is complicated. The IRS has the legal authority to seize and sell homestead property to satisfy a tax debt, but its internal policies generally disfavor foreclosure on a taxpayer’s primary residence. The IRS must obtain court approval before seizing a residence, and a federal district court judge must find that the tax debt cannot reasonably be collected through less intrusive means.

In practice, the IRS rarely forces the sale of a primary home and more commonly waits for the homeowner to sell or refinance, at which point the lien must be satisfied from the proceeds.

A federal tax lien also differs from a state judgment lien in that it survives the homeowner’s death. While a state judgment lien cannot attach to homestead property even after the owner dies, an IRS lien continues against the property and follows it into the hands of heirs. For a more detailed discussion, see the page on homestead and IRS liens.

Equitable Liens and Constructive Trusts

Florida courts have developed a judicial exception to homestead protection for situations involving fraud or egregious conduct. The Florida Supreme Court established in Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001), that a person may freely convert non-exempt assets into an exempt homestead even with the intent to hinder creditors. Converting cash into a home to shelter it from a pending judgment is not, by itself, fraudulent.

The exception arises when the money used to purchase or improve the homestead was obtained through fraud, theft, breach of fiduciary duty, or other egregious misconduct. In that situation, a court may impose an equitable lien on the homestead for the amount of money traceable to the wrongful conduct. The creditor must demonstrate two things: that the debtor obtained the funds through egregious behavior, and that those specific funds can be traced into the homestead.

An equitable lien on a homestead is not passive. Florida courts have held that a creditor holding an equitable lien may foreclose on the homestead property, forcing a sale to recover the amount of the lien. The homeowner does not get to wait indefinitely until a voluntary sale or refinance.

Courts may also impose a constructive trust on homestead property as an alternative to an equitable lien. A constructive trust requires the creditor to prove that the debtor was unjustly enriched through fraud or duress and that the proceeds flowed into the homestead. The constructive trust gives the defrauded party an ownership interest in the property rather than a lien, which can provide a stronger remedy in some circumstances.

The distinction between ordinary fraudulent transfers and the equitable lien exception is important. A debtor who moves legitimate money into a homestead to shelter it from creditors is protected under Florida law. A debtor who steals money and uses it to buy a house is not.

Pre-Existing Liens That Predate Homestead Status

A lien that attaches to property before the owner establishes homestead status is not extinguished when the property later becomes a homestead. If a creditor properly records a judgment lien against a property, and the owner subsequently begins residing there, the pre-existing lien survives the homestead designation.

This situation can arise when a debtor purchases a property that already has a recorded judgment lien against the seller, or when a debtor owns non-homestead property, allows a judgment lien to attach, and then moves into the property. In either case, the lien was valid at the time it attached, and the later establishment of homestead status does not retroactively eliminate it.

Bankruptcy Limitations

Federal bankruptcy law imposes additional restrictions on the Florida homestead exemption that do not exist in state court. Under 11 U.S.C. § 522(p), if the debtor acquired the homestead within 1,215 days (approximately three years and four months) before filing bankruptcy, the exemption is capped at a specified dollar amount, currently $189,050. This cap does not apply in state court collection proceedings.

Additionally, under 11 U.S.C. § 522(o), the bankruptcy court can reduce the homestead exemption by the amount of any nonexempt property that the debtor converted into homestead property within ten years of filing bankruptcy with the intent to hinder, delay, or defraud creditors. The Florida Supreme Court’s ruling in Havoco protects such conversions in state court, but the federal bankruptcy code overrides that protection.

The practical consequence is that debtors who file bankruptcy may lose a significant portion of the homestead protection they would otherwise enjoy under Florida’s Constitution. This is one of the primary reasons asset protection attorneys often advise clients to avoid bankruptcy when state court collection offers a more favorable exemption framework.

What Is Not an Exception

Understanding what creditors cannot do is equally important. A general civil judgment for breach of contract, personal injury, medical debt, credit card debt, or business obligations cannot force the sale of a homestead. A recorded judgment does not create an enforceable lien on homestead property. The judgment may appear as a cloud on title, but the homeowner can clear it through the Notice of Homestead process under Florida Statute § 222.01.

Student loans, deficiency judgments from foreclosure on other properties, and alimony or child support obligations from other states do not create exceptions to homestead protection under Florida law. Domestic support obligations from Florida courts may have separate enforcement mechanisms, but a general money judgment arising from a support obligation does not override the constitutional homestead exemption.

The exceptions listed above are narrow and specific. For the vast majority of Florida homeowners facing creditor claims, the homestead remains fully protected.

For a comprehensive overview of how the homestead exemption works, see the Florida homestead law guide.