Someone who does not have legal residence in the U.S. will still qualify for a Florida homestead exemption if she has at least one family member in the home who “hopes” to gain legal residency and has made a formal request for permanent residency, according to Bankruptcy Judge Karen S. Jennemann of Orlando, Fla.
The debtor owned a half interest in the home where she had lived for more than 20 years. Her half interest was worth almost $150,000, and she claimed a Florida homestead exemption of more than $36,000 in her chapter 7 case.
In her May 27 opinion, Judge Jennemann said the debtor was not entitled to reside permanently in the U.S.
“Courts uniformly hold” that someone lacking permanent resident status in the U.S. is ineligible for the Florida homestead exemption. Why? Because Florida law has both a subjective and an objective test.
Objectively speaking, the debtor must actually use and occupy the home. Subjectively, the debtor “must express an actual intent to live permanently in the home,” Judge Jennemann said. Someone without permanent resident status cannot satisfy the subjective test.
The debtor’s daughter saved the debtor’s homestead exemption.
The daughter had lived in the home since she arrived in the U.S. as a minor. The daughter had enrolled in the Deferred Action for Childhood Arrivals program in 2012 and “hopes to gain legal residency under DACA,” Judge Jennemann said.
The daughter was married to a U.S. citizen serving abroad in the U.S. military. The son-in-law listed the home as his permanent residence.
Judge Jennemann denied the trustee’s objection to the homestead exemption claim.
Judge Jennemann said that a “few courts” have allowed the Florida homestead exemption “when the debtor has family members residing at the claimed homestead who are legally authorized to permanently reside in the U.S.” She cited a Florida appellate court for allowing the exemption based on a temporary visa held by the homeowners and their son, who was a U.S. citizen.
In two other cases, the exemption was allowed to immigrants who did not have so-called green cards but had arrived legally in the U.S. under temporary visas and promptly applied for political asylum. They “had the intent to permanently reside in the U.S.,” Judge Jennemann said.
Judge Jennemann found the case before her to be “even more compelling.” The daughter had enrolled in the DACA program and “hopes one day to receive permanent legal residency.” If unsuccessful, the daughter had applied for a green card after marrying a citizen.
Judge Jennemann overruled the objection because the debtor had at least one family member living in the home who had made a “formal legal request” to “gain legal status of a permanent resident.”
Someone who does not have legal residence in the U.S. will still qualify for a Florida homestead exemption if she has at least one family member in the home who “hopes” to gain legal residency and has made a formal request for permanent residency, according to Bankruptcy Judge Karen S. Jennemann of Orlando, Fla.
The debtor owned a half interest in the home where she had lived for more than 20 years. Her half interest was worth almost $150,000, and she claimed a Florida homestead exemption of more than $36,000 in her chapter 7 case.
In her May 27 opinion, Judge Jennemann said the debtor was not entitled to reside permanently in the U.S.
“Courts uniformly hold” that someone lacking permanent resident status in the U.S. is ineligible for the Florida homestead exemption. Why? Because Florida law has both a subjective and an objective test.
Objectively speaking, the debtor must actually use and occupy the home. Subjectively, the debtor “must express an actual intent to live permanently in the home,” Judge Jennemann said. Someone without permanent resident status cannot satisfy the subjective test.