Florida Homestead Creditor Exceptions Case Law

This page analyzes the most important Florida court decisions on creditor exceptions to the homestead exemption.

The Three Constitutional Exceptions

Florida courts read the Florida Constitution’s three exceptions to the homestead exemption as an exclusive list and do not stretch any of them, but federal law overrides the exemption where Congress has swept all property into a federal remedy. The Florida Supreme Court has twice refused to add a fourth exception by construction, and district courts have turned away claims for fee judgments and quantum meruit awards on the same ground.

Florida’s constitutional homestead provision, article X, section 4(a), exempts a homestead from forced sale and judgment liens. The exceptions are “taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty,” and a mortgage is not one of them. Section 4(c) is the separate provision under which an owner may mortgage, sell, or give away the homestead.

Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992). Leading case. A homestead cannot be forfeited under the Florida RICO Act for bookmaking conducted in the house: a forfeiture sale is a “forced sale,” the three exceptions are exclusive and strictly construed, and the exemption applies outside the debtor-creditor setting.

Tramel v. Stewart, 697 So. 2d 821 (Fla. 1997). The Contraband Forfeiture Act cannot reach a homestead even where a jury found the entire home was acquired, built, or improved with proceeds of the violation. The exceptions do not stretch to forfeiture, and adding one would take a constitutional amendment.

Cross v. Strader Construction Corp., 768 So. 2d 465 (Fla. 2d DCA 2000). A general contractor whose mechanic’s lien and breach-of-contract counts failed, and who won only in quantum meruit, could not enforce that judgment against the homestead. “Quantum meruit is the antithesis of matters contracted for,” and the improvement exception reaches only obligations actually contracted for. One judge dissented.

Andres v. Indian Creek Phase III-B Homeowner’s Ass’n, 901 So. 2d 182 (Fla. 4th DCA 2005). A homeowners’ association that won a covenant suit over a flagpole and then took an attorney’s-fee judgment could not foreclose the homestead on it. A fee judgment is a judgment like any other and falls outside the three exceptions, and the declaration of covenants never created a continuing lien for fees that predated the homestead.

Perry v. Beckerman, 97 So. 2d 860 (Fla. 1957). Leading case. The improvements exception reaches only an obligation contracted directly for the labor and materials used in the improvement. Borrowed money that paid the workers or bought the materials is outside it, because the borrower’s obligation is repayment of the loan, not payment for the work. 97 So. 2d at 862–63.

Wood v. Wilson, 84 So. 2d 32 (Fla. 1955). The improvements exception defines what a homestead may be made liable for; it does not displace the lien statute’s own enforcement deadline. A materialman who sued too late was barred, because a lien declared but unenforceable “could be of no value whatsoever.” 84 So. 2d at 33–34.

McElwain Associates, Inc. v. Culbreth, 417 So. 2d 838 (Fla. 1st DCA 1982). Where neither side had designated how payments applied, the debtors were entitled to have them applied first to the mortgage on their homestead rather than to a discharged unsecured note, even though the spouse had joined the mortgage. A creditor who does not promptly apply payments loses the right to apply them as it wishes.

Purchase-money decisions. No property, “whether it is represented by cash, notes, chattels or realty,” is exempt from sale for the obligation contracted for its own purchase price. Citizens State Bank v. Jones, 100 Fla. 1492, 131 So. 369 (Fla. 1930). The exception is strictly construed in favor of the family, and the creditor must identify what the obligation bought. Representative of the older line, built largely on the 1885 Constitution’s personal-property exemption: Cator v. Blount, 41 Fla. 138, 25 So. 283 (Fla. 1899); Giddens v. Dickenson, 60 Fla. 320, 53 So. 929 (Fla. 1910).

Citizens State Bank v. Jones, 100 Fla. 1492, 131 So. 369 (Fla. 1930). Purchasers sued their seller on the deed’s warranty, claiming a shortage, and tried to reach $580.50 he had banked from the price. The creditor must identify the property the obligation bought, though substantial identity is enough. To reach purchase money after a closed sale, a constructive trust must be proved so clearly and strongly as to remove every reasonable doubt. The decree was reversed; the purchasers had not shown a breach of warranty supporting recovery of any part of the price.

Lamb v. Ralston Purina Co., 155 Fla. 638, 21 So. 2d 127 (Fla. 1945). A supplier’s money demand for chicken feed, insecticide, and tonics furnished to a homestead poultry business fell inside none of the three exceptions. The claim was “a pure money demand,” it did not become a lien merely because suit had been filed, and the homestead could not be sold to satisfy it.

Phare v. Randall, 97 Fla. 858, 122 So. 217 (Fla. 1929). A deficiency judgment on a promissory note and a mortgage that encumbered only the debtors’ water works plant could not be charged against their homestead, because a judgment lien outside the enumerated exceptions is forbidden. The decision applied the 1885 Constitution, whose exceptions were substantially the three that article X, section 4(a) carries now.

King v. King, 652 So. 2d 1199 (Fla. 4th DCA 1995). A life estate in homestead is exempt from forced sale, and a son-remainderman’s money judgment for mortgage payments, condominium assessments, and maintenance he had paid voluntarily fell outside the constitutional exceptions. The court considered Palm Beach Savings & Loan Ass’n v. Fishbein and Burns v. Estate of Cobb and deemed both inapposite; the payments were voluntary, and the judgment did not separate the portion that benefited the life tenant.

Mathieu v. City of Lauderdale Lakes, 961 So. 2d 363 (Fla. 4th DCA 2007). A municipal code-enforcement lien is not one of the three constitutional exceptions, and section 162.09(3) expressly forbids foreclosing such a lien on a homestead. A homeowner who had not pleaded homestead before the money judgment was not barred by res judicata. An owner may generally claim homestead at any time up to the sale date.

In re Millsaps, 379 B.R. 202 (Bankr. M.D. Fla. 2007). Property sold at an IRS tax sale was never exempt from that sale or from the judgment lien that followed, because the Constitution expressly excepts taxes and assessments. Section 522(f)(1) therefore could not avoid the lien, and a federal tax lien is neither a judicial lien nor a security interest the section reaches, so it is not avoidable at all.

Weitzner v. United States, 309 F.2d 45 (5th Cir. 1962), cert. denied, 372 U.S. 913 (1963). The court let the United States foreclose federal tax liens on the whole homestead, because Florida’s homestead provisions create exemptions rather than property rights in the spouse or children. A wife’s homestead rights during the husband’s life are marital rights, “remote, uncertain and a mere expectancy,” and the joinder requirement creates no property interest in her. A federal tax lien reaches the homestead by federal override, not as a fourth constitutional exception.

United States v. Fleet, 498 F.3d 1225 (11th Cir. 2007). Federal criminal forfeiture of substitute property under 21 U.S.C. § 853(p) preempts Florida’s homestead exemption and Florida’s tenancy-by-the-entireties law. Congress commanded forfeiture of “any other property of the defendant,” criminal forfeiture carries no innocent-owner or innocent-spouse defense, and only the defendant’s own interest is forfeited. 498 F.3d at 1228–32. The holding is federal preemption, not a fourth exception to article X, section 4; Florida’s own RICO and Contraband Forfeiture Acts still cannot reach a homestead under Butterworth and Tramel.

Claim against a Florida homestead	Can it force a sale?	Authority
Property taxes and assessments	Yes	Art. X, § 4(a)
An obligation contracted for the home’s purchase, improvement, or repair	Yes	Art. X, § 4(a); Cross (Fla. 2d DCA 2000)
An obligation contracted for labor performed on the property	Yes	Art. X, § 4(a)
A mortgage the owner signed	Yes, under § 4(c) (the owner’s own mortgage) rather than under one of the three exceptions	Chames (Fla. 2007)
A lien that attached before the property became homestead	Yes	Pasco (Fla. 1917)
A contractor’s quantum meruit judgment	No	Cross (Fla. 2d DCA 2000)
An attorney’s-fee judgment	No	Andres (Fla. 4th DCA 2005)
Forfeiture under the Florida RICO Act	No	Butterworth (Fla. 1992)
Forfeiture under the Contraband Forfeiture Act, even of a home bought with the proceeds	No	Tramel (Fla. 1997)
Federal criminal forfeiture of substitute property under 21 U.S.C. § 853(p)	Yes; federal law preempts the exemption	Fleet (11th Cir. 2007)
An ordinary money judgment	No; a recorded judgment is not even a lien on the homestead	Prieto (Fla. 3d DCA 1998)
A municipal code-enforcement lien	No; § 162.09(3) forbids foreclosing one on a homestead	Mathieu (Fla. 4th DCA 2007); Fong (Fla. 3d DCA 2003)
An equitable lien for money obtained by fraud or egregious conduct and traced into the home	Yes, on proof	Havoco (Fla. 2001); Willis (Fla. 4th DCA 2006); De Diego (Fla. 3d DCA 2019)
An equitable lien to prevent unjust enrichment	Yes	Fishbein (Fla. 1993); Flinn (Fla. 4th DCA 2017)

Equitable Liens for Fraud

A creditor who seeks an equitable lien on a Florida homestead for fraud must prove some fraudulent or otherwise egregious act and trace the money into the home’s purchase, investment, or improvement; a fraudulent transfer alone will not do it.

Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001). Answering the Eleventh Circuit’s certified question, the Florida Supreme Court held that equity reaches past the three constitutional exceptions only where funds obtained through fraud or egregious conduct were used to invest in, purchase, or improve the homestead. No statute can narrow the constitutional exemption, the Court said of section 726.105 and of sections 222.29 and 222.30. The decision also holds that a debtor may convert non-exempt assets into a homestead even to defeat creditors, the rule the homestead conversion cases apply.

De Diego v. Barrios, 271 So. 3d 1181 (Fla. 3d DCA 2019). The Third District reversed an equitable lien on a homestead because the trial court’s egregious-conduct findings rested on an unsworn motion and the argument of counsel, with no testimony, evidence, or affidavit. The court held that “some fraudulent or otherwise egregious act by the beneficiary of the homestead protection must be proven,” quoting Isaacson v. Isaacson, 504 So. 2d 1309, 1310–11 (Fla. 1st DCA 1987).

Jansen v. LaMarca (In re Bifani), 493 B.R. 866 (Bankr. M.D. Fla. 2013), aff’d, No. 8:13-cv-2197-JDW, 2014 WL 272920 (M.D. Fla.), aff’d, 580 F. App’x 740 (11th Cir. 2014). A bankruptcy debtor transferred two Colorado properties to a close friend he lived with; she sold one for $970,000, netted $669,233.29, and paid $650,000 for a Sarasota house. The bankruptcy court imposed a lien on her Florida homestead under general equitable-lien principles, finding that the house “was acquired with ill-gotten proceeds” and that the debtor was “reaping the benefits” by living there.

Ryskind v. Robinson, 302 So. 2d 427 (Fla. 4th DCA 1974). The homestead exemption “cannot be used as a shield against a fraudulent transaction”: where a lender is fraudulently induced to advance money that then pays off mortgage debt on the homestead, an equitable lien may arise. A sufficiently pled fraud defense raises a fact issue that cannot be resolved on summary judgment.

Greenberg v. Fontaine, 618 So. 2d 299 (Fla. 2d DCA 1993). An equitable lien may be imposed only where the fraudulent or otherwise egregious conduct was the homestead beneficiary’s own. Parents whose home closing was funded by their son’s cashier’s check, drawn on money he had obtained by fraud, could not be charged: the finding that they knew was unsupported, and the victim had dealt only with the son.

White v. Weatherford (In re Abrass), 268 B.R. 665 (Bankr. M.D. Fla. 2001). After Havoco, a fraudulent-transfer claim cannot defeat homestead protection, but an equitable lien can where fraudulently obtained funds bought the home; the defrauded investor here got one for $179,500. The standard is high: the misappropriated funds must be traced directly into the homestead, and the misappropriation must have been fraudulent and reprehensible. An equitable lien arises only when a court decrees it, so a lien decreed post-petition is not an avoidable unrecorded interest.

In re Financial Federated Title & Trust, Inc., 273 B.R. 706 (Bankr. S.D. Fla. 2001), aff’d, 347 F.3d 880 (11th Cir. 2003). Where a home is bought with funds directly traceable to the debtor’s fraud, Jones v. Carpenter survives Havoco and supports both an equitable lien and a constructive trust; a viatical Ponzi participant’s homestead took a $977,921 lien. The forfeiture cases do not apply, because they concern a home used in crime rather than one bought with its proceeds, and the innocent spouse’s lack of knowledge was no defense.

In re Hecker, 316 B.R. 375 (Bankr. S.D. Fla. 2004). Fraud proceeds traced directly or indirectly into the home’s acquisition support an equitable lien; money’s fungibility and its passage through several accounts over seven years were not fatal. A person who commingles trust funds with his own is presumed to spend his own money first, so the “clean” balance can be computed and the shortfall becomes the lien. The court disallowed the exemption, and the debtor’s country-club equity membership was no part of the homestead.

In re McClung, 327 B.R. 690 (Bankr. M.D. Fla. 2005). A bank seeking an equitable lien on a $1.2 million homestead for $50,000 of allegedly misused funds lost on summary judgment. After Havoco the remedy is narrow, and “the misappropriation of funds by means of fraud or egregious conduct” is its essence. A borrower who withdrew his own money, breaching a consent agreement with a lender that held only an unperfected security interest, did not meet the standard; a fraudulent asset conversion alone gives rise to no equitable lien.

In re Hopkins, 625 B.R. 791, and In re McGrory, 625 B.R. 783 (Bankr. M.D. Fla. 2021). A creditor seeking an equitable lien must establish the fraud or egregious conduct and then trace those funds into a purchase, investment, or improvement of the homestead; alleging a fraudulent transfer is not enough. Three regular monthly mortgage payments of $1,297.70 were none of the three, though the court said a substantial principal reduction or several payments may qualify. The two decisions are one text, entered in companion adversary proceedings brought by the same plaintiffs.

Mazon v. Tardif, 387 B.R. 641 (M.D. Fla. 2008). The Havoco exception has two components, egregious or fraudulent conduct and tracing of the funds into the purchase or improvement, and tracing does not require a dollar-for-dollar accounting. Commingling alone does not defeat it, and where a sophisticated debtor had shuffled money among accounts, a forensic accountant could treat the accounts as one for the analysis; the district court affirmed a $1,102,811.86 lien on a Naples condominium.

Hirchert Family Trust v. Hirchert, 65 So. 3d 548 (Fla. 5th DCA 2011). Constructive fraud, which “may exist independently of an intent to defraud,” supports the equitable exception, because a breach of fiduciary duty is constructive fraud. A constructive trust or an equitable lien may therefore reach a homestead bought with traceable proceeds of a trustee’s misappropriation, and the innocence of the current owner does not matter. The Fifth District reversed and remanded with instructions to enforce the California court’s injunction as a matter of comity.

Can Fraudulent-Transfer Findings Alone Support an Equitable Lien?

Florida’s Fourth District held in 2006 that fraudulent-transfer findings alone cannot support an equitable lien on a homestead and in 2022 that they can.

A Fraudulent Transfer Alone Is Not the Fraud Havoco Requires

Willis v. Red Reef, Inc., 921 So. 2d 681 (Fla. 4th DCA 2006). Leading case. The Willises paid off their homestead mortgage with $490,345.19 from a building sale by Ocean One, a company two creditors then had claims against. The fraudulent-transfer findings were affirmed, but because “Red Reef did not provide the Willises with the funds,” the equitable lien and constructive trust were reversed. Equitable liens are limited to homesteads “purchased with the fruits of fraudulent activity.” 921 So. 2d at 684.

Such Findings Can Support the Lien, and the Lien May Be Foreclosed

Renda v. Price, 347 So. 3d 3 (Fla. 4th DCA 2022). A widow bought her homestead with insurance proceeds and asset-sale money; the trial court found badges of fraud and insider status, and that the money had been transferred to her to defraud a $10 million judgment creditor. The Fourth District affirmed the $550,000 equitable lien and, on cross-appeal, reversed the refusal to permit foreclosure, because refusing it would unjustly enrich her.

No Florida Supreme Court decision reconciles the two lines, and Renda does not cite Willis. The cases may differ: the money in Renda was traced from the judgment debtor itself, while the Willis creditor’s claim ran against a corporation and matured three years after the payoff. For planning, whether a creditor holding a fraudulent-transfer judgment can reach a home bought with the transferred money depends on which line the court follows.

Equitable Liens for Unjust Enrichment

Where a claimant’s money went into a homestead, paying off its mortgages and taxes or building an improvement, Florida courts have imposed an equitable lien to prevent unjust enrichment, even against an owner who did nothing wrong.

Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So. 2d 267 (Fla. 1993). Leading case. A bank whose forged-signature loan retired the prior mortgages and taxes on a homestead got an equitable lien for that amount against an owner who did nothing wrong. The lien rested on equitable subrogation and unjust enrichment: the owner was “not entitled to a $930,000 windfall,” and the bank recovered nothing for the $270,000 that did not benefit the homestead. “The homestead exemption is intended to be a shield, not a sword.” 619 So. 2d at 271.

Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (Fla. 1925). A bankruptcy trustee got an equitable lien on a former company president’s homestead for embezzled funds he had spent improving it. The Court treated the claim as falling within the exceptions by equitable subrogation. The trustee “cannot follow said funds or materials into Carpenter’s home and recover them … but he can subject the home to the repayment or restoration of said funds.” 106 So. at 129–30.

La Mar v. Lechlider, 135 Fla. 703, 185 So. 833 (Fla. 1939). The Court imposed an equitable lien on a homestead where there was no fraud: relatives who had advanced money to build an addition, on the understanding that they would share the house, got a lien when the owner repudiated the arrangement.

Sonneman v. Tuszynski, 139 Fla. 824, 191 So. 18 (Fla. 1939). The same year, the Court put a $1,700 equitable lien on a homestead into which only $500 of the plaintiff’s money had gone; the equities, rather than a tracing of dollars, set the amount.

Flinn v. Doty, 214 So. 3d 683 (Fla. 4th DCA 2017). An equitable lien on a homestead may be foreclosed to the extent it secures money that paid off the owner’s own mortgage; the Fishbein rationale carries through to a forced sale.

Wiand v. Lee, 574 B.R. 286 (Bankr. M.D. Fla. 2017). The receiver of a Ponzi scheme obtained an equitable lien and a constructive trust on innocent investors’ homestead, to the extent false profits were traceable into it. “The focus is not on the Defendants’ culpability, but on the necessity of preventing or mitigating their unjust enrichment.” 574 B.R. at 291–95. Affirmed, Lee v. Wiand, 603 B.R. 161 (M.D. Fla. 2018).

Burns v. Estate of Cobb, 589 So. 2d 413 (Fla. 5th DCA 1991). A non-heir cohabitant who put money into the home’s purchase or improvement could have won an equitable lien or a money judgment while the owner lived, and her cause of action did not die with him. The same decree may be established against the estate, and it binds the homestead and the lineal descendants, who took with notice. An equitable ownership interest carrying a present possessory right defeats the heirs’ ejectment action; a bare equitable lien does not.

Barton v. Oculina Bank, 26 So. 3d 640 (Fla. 4th DCA 2010). The homestead defense may be raised for the first time on appeal, and whether property is homestead is an issue of fact. Summary judgment imposing an equitable mortgage was therefore improper where the owner had lived in the residence and, after a hurricane destroyed the house, was permitting a replacement. Article X, section 4 “protects homesteads against every type of claim and judgment except those specifically mentioned in the constitution.”

Equitable Liens for Unpaid Alimony

Florida’s district courts allow an equitable lien on a homestead for unpaid alimony where the debtor spouse acted egregiously, reprehensibly, or fraudulently toward the former spouse, and the Florida Supreme Court has expressly declined to say whether that approach is valid.

Havoco of America, Ltd. v. Hill, 790 So. 2d 1018, 1028 n.12 (Fla. 2001). The Court collected the district decisions allowing equitable liens on homesteads for alimony and child support and added: “We express no opinion as to the validity of this approach.”

Partridge v. Partridge, 790 So. 2d 1280 (Fla. 4th DCA 2001). A former wife could not foreclose an equitable lien on her ex-husband’s homestead for alimony arrears on summary judgment; non-payment plus purchases elsewhere was not enough. Her affidavit was “void of sufficient facts to support a claim that appellant acted either egregiously, reprehensibly, or fraudulently.”

Spector v. Spector, 226 So. 3d 256 (Fla. 4th DCA 2017). Homestead does not shield a former husband who acts egregiously, reprehensibly, or fraudulently toward an alimony creditor, and his transfers of real estate and a life insurance policy to his new wife were not immune as a matter of law. The Fourth District remanded for findings under the Partridge standard, with authority to foreclose if they are made.

The proof required is the one stated in De Diego v. Barrios: egregious conduct must be shown by evidence, not by counsel’s argument. The alimony line is the only route to a Florida homestead that turns on the debtor’s conduct rather than on where the money came from.

Recorded Judgments and Clouded Title

A recorded money judgment does not attach to homestead property, but it still appears on a title search, and Florida courts let the owner bring a declaratory or equitable action to clear it.

Prieto v. Eastern National Bank, 719 So. 2d 1264 (Fla. 3d DCA 1998). Leading case. The owner’s declaratory action had been dismissed. The Third District held that a recorded judgment does not operate as a lien on homestead but looks like one to a title searcher and can block a sale or a loan, so the owner may sue to clear it. The bank confessed error.

An attorney’s-fee judgment is a judgment like any other and gets no further against the homestead; in Andres v. Indian Creek the Fourth District refused to let a homeowners’ association foreclose on one. Sections 222.01 and 222.02 set out the procedure for designating the homestead before and after a levy, and the decisions applying it are collected with the homestead property-scope cases.

Timing is the exception: a judgment lien that attached before the property became homestead survives it, and one that attached at the same instant yields. Those rules come from Pasco v. Harley and Bowers v. Mozingo, which are collected with the homestead qualification cases.

Farrey v. Sanderfoot, 500 U.S. 291 (1991). A debtor may avoid a judicial lien under section 522(f)(1) only if he possessed the interest before the lien attached, and state law decides when a lien fixes. A Wisconsin divorce decree extinguished both spouses’ prior interests and, in one instant, gave Sanderfoot the house in fee simple and his former wife a $29,208.44 lien on it. He took the interest and the lien together, so there was no fixing for him to avoid. The Supreme Court reversed the Seventh Circuit and remanded, leaving the lien intact.

In re Owen, 961 F.2d 170 (11th Cir. 1992). On remand from Owen v. Owen, 500 U.S. 305 (1991), the Eleventh Circuit held that because the debtor bought the property after the judgment was recorded, lien and title attached at the same instant. There was never a “fixing of a lien on an interest of the debtor,” so 11 U.S.C. § 522(f) could not avoid it; Florida’s later expansion of the exemption did not change that. The state-law simultaneous-attachment rule therefore does not carry into a § 522(f) motion.

In re Watson, 116 B.R. 837 (Bankr. M.D. Fla. 1990). For a lien recorded after the property became homestead, “the mere existence of the judgment lien impairs a debtor’s Florida constitutional homestead exemption,” so 11 U.S.C. § 522(f)(1) avoids it. Title companies treat a recorded judgment as a cloud on title unless it is avoided, satisfied, or removed. Owen concerns a lien and title that attached at the same instant; Watson concerns a lien recorded after homestead status already existed, and later Florida bankruptcy decisions follow it.

In re Pettengill, 635 B.R. 842 (Bankr. S.D. Fla. 2021). A recorded judgment against a Florida homestead is a “lien” that “fixes” and “impairs” the exemption within 11 U.S.C. § 522(f)(1)(A), so the debtor may avoid it. The Bankruptcy Code has its own definition of lien, and a recorded judgment asserting a contingent right to payment is a charge that stays fastened until the section 222.01 notice process removes it. Impairment is practical as well as legal, because the recording clouds title whether or not the creditor can enforce it. 635 B.R. at 845–48.

In re Badalamenti, 632 B.R. 862 (Bankr. M.D. Fla. 2021). Lien avoidance under section 522(f) turns on ownership rather than residence, so a debtor who had owned his home since 2002 could avoid a judgment recorded in 2013 while he lived elsewhere. Under Farrey v. Sanderfoot, state law decides when a lien fixes, and a Florida judgment lien springs to life the minute the debtor acquires property it can attach. Impairment is measured on the petition date against the exemption the debtor would have had but for the lien.

Fong v. Town of Bay Harbor Islands, 864 So. 2d 76 (Fla. 3d DCA 2003). Article X, section 4 invalidates the simple imposition of a lien on homestead just as it invalidates a forced sale, so a code-enforcement lien could not be left sitting there awaiting a future loss of homestead status. If the owner sells, the buyer takes free of the lien, and the sale proceeds are reachable only if they are not reinvested in a new homestead within a reasonable time.

Rokosz v. Haccoun, 274 So. 3d 498 (Fla. 3d DCA 2019). A homeowner who moves to discharge a lis pendens on the ground that the property is his constitutionally protected homestead is entitled to an evidentiary hearing on the question. The trial court denied due process by recharacterizing the motion and refusing to take testimony, and the Third District reversed for a hearing.

Chasteen v. Chasteen, 213 So. 2d 509 (Fla. 1st DCA 1968). A 1934 sheriff’s deed of the designated homestead was void, because a homestead is not subject to forced sale on the deceased owner’s unsecured notes and the exemption inures to the widow and heirs. Both the bank and the purchasing heir were on notice of the widow’s recorded designation and occupancy. The court held that former section 95.23’s twenty-year limitation, carried forward today as section 95.231, “does not apply to void deeds and does not apply to deeds conveying homestead property.”

Partition by a Co-Owner

A co-owner can force the partition and sale of a Florida homestead, because the exemption shields the home from the owner’s creditors, not from others who own an interest in the property.

Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978). Leading case. Article X, section 4 does not bar a cotenant’s suit for partition and forced sale of homestead property where partition is necessary to protect the co-owners’ beneficial enjoyment. The exemption does not operate “at the expense of others owning interests in the property.” The opinion directs courts to preserve the homestead where the parcel is divisible, and Havoco later relied on the decision.

Wescott v. Wescott, 487 So. 2d 1099 (Fla. 5th DCA 1986). The 1984 amendment extending the exemption to all natural persons did not disturb Tullis. The marital residence was indivisible, and partition was the only way the former husband could enjoy his interest. “[T]he unilateral act of the wife in taking possession and claiming the homestead exemption” did not defeat his rights, and the partition and sale were affirmed.

Levy on a co-owner’s interest. A creditor of one cotenant may levy on and sell that cotenant’s undivided interest; the purchaser then becomes a cotenant and may force partition of the whole property. The mechanism comes from Donly v. Metropolitan Realty & Investment Co., 71 Fla. 644, 72 So. 178 (Fla. 1916).

Waiver of the Homestead Exemption

Florida homestead can be given up only by mortgage, sale, or gift; a waiver clause in a retainer agreement or any other unsecured contract does nothing against the exemption.

Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007). Leading case. A waiver of the homestead exemption in an unsecured agreement is unenforceable; the waiver here sat on page four of a six-page retainer, ending a 118-word sentence. The Constitution prescribes the only ways to waive, and because the right protects the debtor, the debtor’s family, and the State, it is not purely personal.

Sherbill v. Miller Manufacturing Co., 89 So. 2d 28 (Fla. 1956). A waiver of the homestead exemption written into a promissory note is unenforceable as contrary to the policy of the exemption laws. No policy is “more strongly expressed in the constitution, laws and decisions of this State than the policy of our exemption laws.” 89 So. 2d at 31. Chames later confined the rule to a general waiver in an otherwise unsecured instrument; a waiver by mortgage, sale, or gift under section 4(c) still works.

Carter’s Adm’rs v. Carter, 20 Fla. 558 (Fla. 1884). An exemption waiver written into a promissory note is “not valid to defeat a claim of exemption” and is contrary to public policy. The holding arose on the constitutional personal-property exemption in a probate accounting, and it is the origin of Florida’s rule against prospective contractual waiver. The court distinguished a mortgage or pledge of specific, identified property, which designates the property and creates an interest in it.

In re Estate of Nicole Santos, 648 So. 2d 277 (Fla. 4th DCA 1995). A citizen’s right to homestead protection is a rule of public policy that justifies departing from the ordinary rule of comity. “[P]rotection of homestead from alienation cannot be waived by contract or otherwise,” the court held. Puerto Rican law governed the antenuptial agreement, but the court remanded to determine whether the Florida home the surviving spouse was titled in and lived in was homestead, which the agreement could not reach.

Fidelity & Casualty Co. v. Magwood, 107 Fla. 208, 145 So. 67 (Fla. 1932). A homesteader’s failure to interpose the exemption in a creditor’s-bill suit did not preclude him from later contesting his ouster. “Where a homestead had been acquired,” the Court held, “it can be waived only by abandonment or by alienation in the manner provided by law”; Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011), still quotes the sentence.

Albritton v. Scott, 73 Fla. 856, 74 So. 975 (Fla. 1917). A homestead sold in violation of the exemption is a void sale, and the homesteader won cancellation of the sheriff’s and the purchasers’ deeds. “A mere failure to resist the sale is not a waiver of the exemption rights.” 73 Fla. at 857–58.

McMichael v. Grady, 34 Fla. 219, 15 So. 765 (Fla. 1894). There is no waiver of the constitutional exemption by failing to claim it until a forced sale is ordered or attempted. The Constitution’s “inhibitory hand is not actively lifted until a forced sale under the process of some court is attempted,” and the holder may then call on the courts, no matter when. The decision arose on the 1885 Constitution’s personal-property exemption, and it is the nineteenth-century root of the rule Chames v. DeMayo states in current terms.

A law firm that pursued a former wife’s home, and the proceeds of its sale, to collect the former husband’s fees drew section 57.105 sanctions in Law v. Law, which is treated with the homestead sale proceeds cases.

A spouse’s waiver of the section 4(c) devise restriction is a separate doctrine, as Chames itself notes, and those decisions are collected with the homestead devise and descent cases.

A Florida homeowner facing a judgment is exposed to the three constitutional obligations, a proven equitable lien, any lien that attached before the homestead did, and the federal remedies that preempt the exemption. The planning guidance for each sits on the homestead creditor exceptions, homestead equitable liens, homestead liens, and homestead waivers pages.