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Debtor Not Precluded From Claiming Homestead Exemption On Trailer That Violated County Ordinance

September 19, 2019

The Eleventh Circuit Court of Appeals recently affirmed a lower court’s rulings that a Chapter 13 debtor’s trailer located on agricultural land in violation of a county ordinance constituted his exempt homestead. At the time the debtor filed his Chapter 13 petition, he was living in a trailer on a fourteen acre parcel of land classified as agricultural for tax purposes in violation of a Miami-Dade County ordinance. The debtor received warning that living in his mobile home on agricultural land violated the ordinance, and so he sought to build a small home on the property. Creditors objected to the debtor’s homestead exemption on the grounds that the mobile home violated local law.

 

The Florida Constitution protects a debtor’s homestead from a forced sale if the debtor actually lives on the property and intends to make the property his or her permanent residence. The District Court ruled that the debtor’s violation of county law did not deprive him of the homestead exemption under Florida law. The ruling distinguished Drucker v. Rosenstein, 19 Fla. 191 (Fla. 1882), where a debtor was denied the homestead exemption. In Drucker, the debtor claimed an unoccupied lot as his homestead based on his intent to build a house there at some future time. The Eleventh Circuit noted intent to occupy the property does not also satisfy the actual occupation requirement. Further, actual occupation does not require occupation in a “permanent home” to qualify for the homestead exemption. Whereas the debtor in Drucker had not occupied the vacant lot, the debtor in this case had been living in the trailer on his property since 2013. Ultimately the Court found the debtor’s actual occupancy was determinative, not the legality of the structure he occupied.

 

The Case: Advance Credit Inc. et al. v. Gamboa, No. 18-14367, 2019 WL 3917180 (11th Cir. Aug. 19, 2019)

 

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