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Homestead, Sweet Homestead

Laura M. Licastro
Associate Florida Underwriting Counsel

    Protection of Florida homestead property is basically protection of the family unit's property. Paragraph (c) of Article X, Section 4 of the Florida Constitution prevents the married owner of protected homestead property from conveying, encumbering, or otherwise alienating that property without the consent of the owner's spouse, and also prohibits the owner from devising that property if the owner is survived by a spouse or minor child. This article will only discuss transfer or encumbrance of homestead during the lifetime of the owner, but the term “homestead rights” refers to the non-titled spouse's right to withhold consent to the conveying, encumbering or alienating of the property by the titled spouse as well as the right to remain in the property after the death of the titled spouse.

    At the outset, it is important to remember that the homestead rights are held by the spouse of the title holder and not by the title holder himself or herself. Thus, even if the non-titled spouse does not reside on the property, he or she still has homestead rights to the property so long as the title holder or any of their minor children reside there. Each spouse can have his or her own homestead. For example, Jane Doe can have her homestead in Hillsborough County and her spouse, John Doe, can have his in Volusia County. John Doe would have to join in any conveyance or encumbrance of the Hillsborough County property, while Jane Doe would have to join in any conveyance or encumbrance of her h u s b a n d 's Volusia County residence. This is true regardless of how long John and Jane have lived apart. Until a judgment has been signed declaring the parties legally divorced or until one or both spouses have had a waiver or forfeiture of homestead rights judicially determined, each spouse retains homestead rights in the other's residence.

    The retention of homestead rights throughout the marriage can sometimes result in problems for the owner-spouse. Sometimes, the spouses have separated and the non-titled spouse refuses to join in the transaction or has moved away and cut off contact with the titled spouse. This may happen where the non-titled spouse is not a United States citizen and returns to his or her country of origin. Unfortunately, the fact that the non-titled spouse has refused to consent or has “disappeared” does not eliminate his or her homestead rights or the need for joinder in a conveyance or encumbrance. Another common situation is where divorce proceedings are pending, but the titled spouse wants to convey or refinance the property. Until the divorce is final, the non-titled spouse retains his or her homestead rights and joinder is required even if a judgment has been prepared but not yet signed by the judge. The agent should be sure to record the final judgment of divorce in the public records. If the divorce proceedings took place in a county other than the one in which the property is located, certified copies should be recorded in the county where the property is situated.

    Another important point to remember is that the homestead status of real property is based on the intent of the owner. Therefore, even property which the owner does not immediately occupy can still be considered homestead property. Therefore, if there is any doubt, joinder of spouse is recommended. This is particularly important for mortgages on so-called “second homes.” Since the owner has not declared the property to be purely for investment purposes, the agent needs to make inquiry to determine whether the owners may intend to reside on the property as their homestead. The agent should never rely on brokers, lenders or realtors to determine whether spousal joinder is required as this determination is solely the title agent's responsibility in connection with the determination of the requirements to insure the proposed transaction.

    In a conveyance of homestead property, the spouse must not only sign the Deed, he or she must also be listed in the body of the Deed as a grantor. The proper way to identify the grantors of homestead property where only one spouse is actually in title is "John Doe, a married man, joined by his wife, Jane Doe." The "joined by" language indicates that Jane Doe is not signing as a fee owner. At the end of the Deed, there should be a signature line for Jane Doe and her signature also requires two witnesses and an acknowledgment. Since the non-titled spouse is consenting to the transfer and not actually conveying an interest, both spouses must sign the same Deed.

    Sometimes, the non-titled spouse will resist joining in execution of a Mortgage on the titled spouse's property. When the non-titled spouse has not signed the underlying Promissory Note, a lender may still attempt to enforce the Note against the non-titled spouse because there may be language in the Mortgage indicating that the mortgagors jointly promise to comply with the covenants in the Note. To avoid this possibility, and only with the prior consent of the lender, the title agent may add the following language underneath the signature of the non-titled spouse: "___________ is joining in the execution of this Mortgage solely for the purpose of consenting to the encumbrance of homestead property and is not assuming any personal liability for the debt secured hereby."

    You are encouraged to contact the Underwriting Department if you have any questions regarding homestead rights in general.
 
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