Tuesday, December 13, 2011
Homestead - Registered Aliens Under A Temporary Visa
By: David M. Garten, Esq.
Art. X, § 4, Fla. Const. provides in pertinent part:
SECTION 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of 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, the following property owned by a natural person:
(1) a homestead,….
. . .
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
In Grisolia v. Pfeffer, 2011 Fla. App. LEXIS 18673 (Fla. 3rd DCA 11/23/11), the decedent moved his family to the United States in 2005 following a kidnapping attempt on his son the previous year. Although he was attending school in Venezuela at the time of the attempted kidnapping, his son was a United States citizen with an American passport. The decedent subsequently purchased an apartment in Florida where he resided along with his son and spouse. The decedent and his spouse were registered aliens legally allowed to reside in the United States under a temporary visa.
Lenders loaned the decedent $500,000.00. The decedent died in 2009 and lenders asserted a claim against the decedent’s estate to recover the balance of the loan. The estate objected to the claim and filed a petition for the determination of the homestead status of the property. Arguing that the property was protected by Florida's homestead exemption from forced sale, the estate alleged that it was exempt from creditors. The probate court denied the petition for declaration of homestead and the estate appealed.
The appellate court reversed. The court distinguished those cases where the decedent was temporarily in the United States as a tourist because the decedent did not have the legal right to reside permanently in Florida and therefore, could not legally formulate the requisite intent to make the Florida property his family's permanent place of residence.
Here, the situation is quite different. It is undisputed that the decedent and the Widow were not in the United States as tourists. Instead, they were registered aliens legally allowed to reside in the United States under their temporary visa. Moreover, in the son's case, he was an American citizen who was born in Miami, Florida and had resided in Florida since his family moved here in 2005. The widow testified at the evidentiary hearing that her intent, along with that of the decedent, was that the family reside permanently in the apartment due to safety concerns stemming from the attempted kidnapping of the son in Venezuela. The widow further testified that she and the decedent had applied for permanent residence in the United States prior to the decedent's passing. These specific circumstances are sufficient to demonstrate the decedent's intent to have his family permanently reside in Florida.
The court also distinguished several bankruptcy cases where a debtor, because of his immigration status, could not formulate the requisite intent to make the property his permanent residence. The court reasoned that those “cases ignore that eligibility for the homestead exemption depends on the intent of the homesteader rather than that of the U.S. Citizenship and Immigration Services.”
Finally, the court distinguished those cases that involve Florida’s homestead exemption from taxation (article VII, section 6 of the Florida Constitution) from Florida's homestead exemption from forced sale (article X, section 4 of the Florida Constitution). The court reasoned that although homeowners who held only temporary visas could not form the requisite intent to become permanent residents for purposes of tax exempt status, they could form the requisite intent to become permanent residents for purposes of Florida's homestead exemption. Although the decedent never claimed a tax exemption according to the tax rolls, the court held that failure to claim the tax exemption is not evidence that property is not, in fact, homestead.
HOLDING: Under the specific facts of the this case, because the decedent's American-born son resided in the property since its purchase, the decedent and widow had a visa which gave them the legal right to reside in Florida, and were actively pursuing permanent residence status prior to the decedent's death, the court found that the decedent demonstrated the requisite intent to make the property his family's permanent residence.