In a recent Axios Miami news article, I had the pleasure of providing my legal opinion on Florida’s Homestead Protection Laws, as they relate to the situation involving Miami Commissioner Joe Carollo’s efforts to shield his home from a $63.5 million legal judgment against Mr. Carollo. The question asked is whether Commissioner Carollo could move back into a Florida property he owned and make it his “homestead” and thereby protect the home and all the equity that he has in the property (estimated to be over $3 million dollars), from judgment creditors. The case has garnered significant attention due to Mr. Carollo’s very controversial history and the substantial amount of money involved in the judgment against Mr. Carollo. Notably, recent developments in the case have confirmed that Carollo’s homestead is indeed protected from judgment creditors as I explain to Mr. Vassolo. This outcome underscores the robust nature of Florida’s homestead laws and protections, which I elaborated on in my responses to Mr. Vassolos.
It was a pleasure working Axios reporter Martin Vassolo
Find a link to Martin Vassolo’s news article below:
https://www.axios.com/local/miami/2024/03/12/joe-carollo-house-sale-lawsuit
I explained that Florida Law provides for two distinct forms of Homestead protection. First, I explained that there is the Homestead that you should apply for when you first purchase your home and it relates to taxes caping the rate at which your property taxes can increase, and this form of homestead is not relevant for our analysis of protecting your home from creditors.
The second form of homestead protection that is relevant for this conversation is found in Article X, Section 4 of the Florida Constitution and expressly protects against the forced sale of a person’s homestead property. There are only 3 exceptions to the latter homestead protection and these exceptions are expressly provided for in Article X, Section 4 of the Florida Constitution which provides in relevant part that a Homestead property is only subject to forced sale for:
1) the payment of taxes and assessments thereon;
2) obligations contracted for the purchase, improvement, or repair thereof; or
3) obligations contracted for house, field, or other labor performed on the realty.
The Florida Supreme Court has found that it is irrelevant that the homestead was being used in the course of criminal activity or was purchased with the funds derived from criminal activity. The only exceptions has been cases were the party seeking to enforce the sale can make out a case for an equitable lien, and that equitable lien must be based upon the funds creating the equitable lien being derived from sort of equitable subrogation or unjust enrichment, that can still be linked in some manner to the 3 express exceptions provided for in Article X, Section 4 of the Florida Constitution. See the case of Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001)
The homestead provision of our Constitution sets forth the exceptions and provides the method of waiving the homestead rights attached to the residence. These exceptions are unqualified. They create no personal qualifications touching the moral character of the resident nor do they undertake to exclude the vicious, the criminal, or the immoral from the benefits so provided. The law provides for punishment of persons convicted of illegal acts, but this forfeiture of homestead rights guaranteed by our Constitution is not part of the punishment.
In the case of in Tramel v. Stewart, 697 So.2d 821 (Fla.1997), the Stewarts faced forfeiture of their homestead under the Florida Contraband Forfeiture Act after they were arrested for selling marijuana and a search of their home revealed drugs, drug paraphernalia, and a sophisticated marijuana growing operation.7 The State thus sought forfeiture of the Stewarts’ real and personal property, claiming that the property was either being used as an instrumentality of the drug operation or that the property was acquired with funds obtained from the drug activity. Consistent with Caggiano, we held:
As we found in respect to the Florida RICO Act in Caggiano, we find that article X, section 4, does not provide an exception for the forfeiture of homestead property for a violation of the Forfeiture Act. The homestead guarantee uses broad language protecting the homestead from involuntary divestiture by the courts. The constitutional protection of homesteads has not changed since our discussion in Caggiano to include forfeiture as one of the enumerated exceptions. In the absence of such a provision, this court cannot judicially create one.
- Does a homeowner abandon their homestead claim if they move away for an extended period of time?
In this case it is not a question of duration of absence that matters for determining if the property is entitled to homestead protection. The key question is when did the party claiming homestead show intent to reside in the subject property and thereby claim the property as their homestead. In this case by the Plaintiff’s own admission, the Defendant’s actions demonstrated that they intended to make the subject property his Homestead, by physically moving his belongings out of the rental property, and into the property that he owned thereby changing his legal residence to the subject property, prior to the entry of the Final Judgment.
