Homestead Exemption Waivers

Sometimes clients ask me about loan contracts they may have signed many years ago. These contracts often have a section or paragraph that states the borrower waives all of the statutory exemptions, including their homestead exemption, if they default on the loan.

Now they’ve defaulted, and they’re worried they’re going to lose their home.

Can You Waive the Florida Homestead Exemption?

The Florida homestead exemption cannot be waived. The exemption is a fundamental right under the Florida Constitution. With few exceptions, any clause that purports to waive a Florida homestead exemption is void.

Florida law protects against people inadvertently waiving fundamental homestead protection against judgment liens.

I tell clients who are worried they will lose their homes because of these waiver provisions that they have nothing to worry about.

What Does It Mean to Waive Exemptions?

A legal waiver is a general principle giving individuals the ability to voluntarily give up and relinquish their legal rights.

You can waive a legal right expressly, such as a written waiver. Or, you can waive a right implicitly through a course of conduct that indicates you no longer wish to retain a legal right.

You can waive almost all rights under a contract.

Waiver of Constitutional Rights

In most circumstances, you can waive your constitutional rights. These include, for example, your right to a jury trial or your right to counsel in criminal proceedings.

Waivers of constitutional rights must be voluntary, knowing, and intelligent.

Waiver of Homestead vs Other Constitutional Rights

Although you can waive other constitutional rights, you can’t waive your constitutional homestead protection right. Florida courts distinguish the homestead exemption from other constitutional rights.

While other constitutional protections affect the individual waiving their rights, the homestead clause in Article, Section 4 of the Constitution protects the debtor, the debtor’s family, and the State.

Public Policy

The primary public policy underlying Florida’s generous homestead protection is the protection of the debtor’s family from being forced to leave their home because of the debtor’s financial misfortune. It’s also to protect the state of Florida from the financial responsibility of supporting a dispossessed family.

That’s the legal basis for why Florida law prevents a debtor from signing a document waiving their Constitutional homestead protection. It could place their innocent family members at risk of homelessness.

Exceptions

There are exceptions to the prohibition of homestead waiver. Some exceptions are found in family law. But the most well-known exception is a mortgage.

Courts have reasoned that mortgages are given to finance the purchase of a home for the benefit of the debtor and their family. Mortgages are given as part of a reasoned commercial transaction where the homeowner knowingly gives the bank an interest in their homestead in consideration of the funds needed to acquire the family home.

The mortgage exception is a practical necessity in any housing market.

Conclusion

Aside from a few exceptions, no Florida resident can forfeit homestead protection from creditors through a contract, loan agreement, or other document, either voluntarily, inadvertently, or under duress.