Florida Bar Journal

Actual Intent vs. Legal Intent: The Impact of Immigration Status on Establishing Homestead Exemptions

As of 2018, 4.5 million immigrants (foreign-born individuals) made up 21% of the population in Florida.^[1] According to the PEW Research Center, in 2016, there were 775,000 undocumented immigrants living in Florida, which made up 18% of the immigrant population and 4% of the total state population.^[2] As set forth in the Migration Policy Institute’s analysis of the 2014-2018 U.S. Census Bureau data, more than 3.2 million nationwide or 29% of undocumented immigrants are homeowners.^[3] According to the U.S. Census Bureau data, the longer undocumented immigrants live in the United States, the more likely they are to own a home.^[4] In 2008, 27% of undocumented immigrants who lived in the U.S. less than 10 years owned a home, compared to 45% of undocumented immigrants who lived in the U.S. 10 years or longer.^[5] For many undocumented immigrants living in the U.S., owning a home is a “big dream” as well as a focal point of community and a support network.^[6] However, many undocumented immigrant homeowners do not enjoy the incidental benefits of homeownership, such as the homestead exemption from forced sale set forth in Fla. Const. art. X, §4, and the homestead exemption from taxation set forth in Fla. Const. art. VII, §6.

Establishment of the Homestead Exemption from Forced Sale

The Florida Constitution has provided a homestead exemption from forced sale for owners of real property since 1868.^[7] Since enactment, the purpose of the homestead exemption has been to promote the stability and welfare of the state by encouraging property ownership and independence, by preserving a home where the family may be sheltered and live beyond the reach of economic misfortune.^[8] In 1882, the Florida Supreme Court in Oliver v. Snowden, 18 Fla. 823, 836 (1882), established the rule that the homestead “is the place of actual residence of the party and his family.” In 1921, the Florida Supreme Court in Semple v. Semple, 89 So. 638, 639 (Fla. 1921), expanded on the “actual residence” rule to incorporate an “actual intention” to live immediately in the residence:

Where it is clearly the manifest intention of the owner to occupy the premises immediately as a home, and this intention is evidenced by specific acts and doings that are not compatible with a different intention, and there is nothing done by the claimant showing a different intention, or that is inconsistent with the asserted intention to make the place his homestead, the homestead character will attach. The intention of a person is a difficult matter to establish and can only reliably be shown by circumstances and acts in support of expressions of intention.

In 1928, the Florida Supreme Court in Lanier v. Lanier, 95 Fla. 522, 116 So. 867, 868 (Fla. 1938), restated the rule establishing the homestead exemption as depending “upon an actual intention to reside thereon as a permanent place of residence, coupled with the fact of residence.”^[9] Even though immigration to the U.S. was at its height during this time, the court did not factor immigration status into the determination of whether a homeowner had or could establish the actual intent to reside permanently in the place of residence.^[10]

Establishment of the Homestead Exemption from Taxation

In 1934, Florida adopted an amendment to the Florida Constitution creating the homestead tax exemption, which reads as follows:

Section 7. There shall be exempted from all taxation, other than special assessments for benefits, to every head of a family who is a citizen of and resides in the State of Florida, the homestead as defined in Article X of the Constitution of the State of Florida up to the valuation of $5,000.00; provided, however, that the title to said homestead may be vested in such head of a family or in his lawful wife residing upon such homestead or in both.^[11]

Shortly after enactment, the Florida Supreme Court, in Steuart v. State ex al. Dolcimascolo, 119 Fla. 117, 161 So. 378, 379 (Fla. 1935), interpreted the phrase “citizen of and resides in the State of Florida” to include only such persons as under §1 of the 14th Amendment to the U.S. Constitution who would be entitled to claim citizenship in the state of Florida in addition to residing in the state. As such, the court held that residents of the state of Florida who are aliens and not citizens of the U.S. are not included within the terms or the intent of Fla. Const. art. X, §7, adopted in 1934.^[12]

After Steuart, the State of Florida amended Fla. Const. art. X, §7, in 1938 to remove the “citizen” requirement and extend the homestead tax exemption to “every person who has the legal title or beneficial title in equity to real property in this [s]tate and who resides thereon and in good faith makes the same his or her permanent home.”^[13] In 1946, the Florida Supreme Court ruled in Smith, Tax Assessor, et al. v. Voight, 158 Fla. 366, 28 So. 2d 426, 427 (Fla. 1946), that the amended Fla. Const. art. X, §7, no longer required citizenship to claim the homestead tax exemption. However, even though the case involved an immigrant, there was no discussion of the circumstances surrounding the property owner’s immigration status, nor an analysis of the property owner’s ability to make or declare in “good faith” an intention to make the real property his permanent home as a non-citizen. Moreover, the Supreme Court did not reference, apply, or incorporate existing immigration law into the reasoning of the Smith decision.

In Juarrero v. McNayr, 157 So. 2d 79, 80 (Fla. 1963), the Florida Supreme Court considered the case of a Cuban refugee and his spouse seeking political asylum, who had applied for and been denied the homestead ad valorem tax exemption provided by the Florida Constitution.^[14] The homeowners were holders of nonimmigrant visas valid for unlimited applications for admission into the U.S. until March 1963.^[15] In December 1960, they were granted permission by the immigration authorities to remain indefinitely in the U.S., and they could depart voluntarily at any time.^[16] The issue before the court was whether an immigrant temporarily absent from his or her homeland because of political persecution and residing in this country for an indefinite stay by virtue of a temporary visa, could make Florida in good faith his or her permanent home.^[17] Relying on the enabling statutes for Fla. Const. art. X, §7, which defined “resident, residence, and permanent residence” to mean “only that place which the person claiming the exemption may rightfully and in good faith call his home,” the court reasoned that due to the temporary visa Mr. Juarrero and his spouse had been issued, he could not “legally, rightfully or in good faith make or declare an intention which he has no assurance he can fulfill or carry out because of the temporary nature of the visa.”^[18]

Thirty-five years later, the Third District Court of Appeal in Lisboa v. Dade County Property Appraiser, 705 So. 2d 704, 706 (Fla. 3d DCA 1998), was confronted with a similar issue regarding whether as a matter of Florida law, an applicant for political asylum with no intent of returning to his country of origin and whose application is pending as of the relevant taxing date, is a “permanent resident” for purposes of Florida’s homestead exemption from ad valorem taxation. The district court began its analysis of “permanent resident” by reviewing F.S. Ch. 196, the implementing statutes of the ad valorem exemption of the Florida Constitution.^[19] Relying on the definitions of “permanent resident” and “permanent residence” set forth in F.S. §§196.012(17) and (18), the district court concluded that Mr. Lisboa had established his true, fixed, and permanent home in Florida to which, whenever absent, he had the intention of returning.^[20]

The district court further reviewed the applicable immigration federal statute and determined that the federal definition of “permanent” is as permissive, if not more so, than the state definition of “permanent resident.”^[21] The district court relied upon the Florida Supreme Court’s decision in Department of Health and Rehabilitative Services v. Solis, 580 So. 2d 146 (Fla. 1991), holding that an alien residing in the U.S. pending her application for political asylum was eligible for aid to families with dependent children benefits as one “permanently residing in the United States under color of law” within the meaning of F.S. §409.026. In analyzing the word “permanent,” the Supreme Court distinguished it from the word “temporary” as used in federal statutes. The court stated:

Unlike the word “permanent,” Congress has not defined the word “temporary.” “Temporary” and “temporarily,” however, are used in 8 U.S.C. Sec. 1101(a)(15) in reference to students, tourists, business visitors, and specific workers. As stated in the dissent to [Sudomir v. McMahon, 767 F. 2d 1456 (9th Cir. 1985)]: “The common characteristics of all these temporary relationships is that they exist for a defined purpose with a defined end, and there is never any intention of abandoning the country of origin as home.”^[22]

Adopting the reasoning of Solis, the district court found that Mr. Lisboa, as an asylum applicant, was present in the U.S. with no defined end or defined purpose as set out by Congress regarding temporary aliens.^[23] As in Solis, the status of Mr. Lisboa would not change until he chose to leave the U.S. or the INS acted upon the application for asylum.^[24] Accordingly, the district court found that Mr. Lisboa fit more appropriately within the definition of “permanent.”^[25] As such, the district court determined Mr. Lisboa did have the right to exemption under the Florida Constitution and noted:

[I]t seems unjust to us that an alien who by misfortune finds himself or herself in need of government assistance, should be designated a “permanent resident” and thereby eligible for social service benefits, while another alien who is self-supporting and a tax-paying resident of this country should be deemed to be less than “permanent” for tax-exemption benefits.^[26]

In 2006, the Second District Court of Appeal in DeQuervain v. Desguin, 927 So. 2d 232, 235 (Fla. 2d DCA 2006), limited the Lisboa holding to only those immigrants with asylum applications pending as of the relevant taxing date as capable of satisfying the homestead residency requirement without having obtained permanent resident status. In DeQuervain, the homeowners had legally immigrated from Switzerland five years earlier, held Social Security numbers and drivers’ licenses, paid federal income tax, had filed a declaration of domicile in Florida, but they held only temporary visas.^[27] In analyzing whether the homeowners could formulate the intent to establish a permanent residence, the district court relied on the implementing statutes of the ad valorem exemption of the Florida Constitution in F.S. Ch. 196, and Fla. Admin. Code Rule 12D-7.007(3), which provided that “a person in this country under a temporary visa cannot meet the requirement of permanent residence or home and, therefore, cannot claim homestead exemption.”^[28] Recognizing that federal immigration policies may have changed and noting that all tax exemptions must be construed strictly, the district court decided it was still compelled to abide by the applicable provisions of the Florida Administrative Code and Juarrero, irrespective of the limited asylum exception carved out by Lisboa.^[29]

Combining the Homestead “Permanent Residence” with Tax Exemption “Permanent Resident”

In 1982, the Florida Supreme Court in Cooke v. Uransky, 412 So. 2d 340, 341 (Fla. 1982), was asked by certified question whether Florida allows foreigners visiting the U.S. as tourists to place a residence owned in this state beyond the reach of creditors under the Florida homestead exemption.^[30] In Cooke, the homeowner was a Canadian citizen in the U.S. as a tourist and was not registered as a resident alien and did not have a permanent visa.^[31] The homeowner argued that the 1968 amendment to the homestead provision eliminated the requirement that the head of the family reside in this state and abrogated any requirement that there be an intention to make the property his or his family’s permanent residence.^[32] The court rejected the homeowners argument and held that although it is no longer necessary that the head of the family reside in the state or intend to make the property in question his permanent residence, he must establish that he intended to make the property his family’s permanent residence.^[33]

In determining whether the homeowner, a Canadian tourist, could legally formulate the requisite intent to make the property his family’s permanent residence, the court relied on federal law and the distinction between a “permanent visa” and a temporary tourist.

Canadian citizens are not required to obtain a visa in order to enter the United States as visitors, but they must have a permanent visa if they intend to reside in this country indefinitely and must register just like other aliens as a resident alien and be in possession of an alien registration receipt card at all times. Title 8 U.S.C. Sec. 1304; 8 C.F.R. Secs. 211.1, 212.1 and 245 (1979).

From all this it follows that a tourist who does not hold a permanent visa cannot be a permanent resident of this state and regardless of what his intent is to do in the future, he is incapable of declaring a home in this state as his permanent residence unless his legal status is changed.^[34]

After adopting the immigration distinction between “permanent visa” and “temporary” visitor, the court adopted its rationale in the Smith and Juarrero cases, which interpreted the homestead tax exemption, and determined that the homeowner, as a tourist, could not possess the legal power to rightfully and in good faith make the subject property his permanent home.^[35] However, unlike the caselaw interpreting the homestead tax exemption, there are no implementing statutes defining “permanent residence” or constitutional provisions requiring an intention to make the property the family’s permanent residence be done “legally,” “rightfully,” or in “good faith.”

After Juarrero and Cooke, several courts held that a homeowner who is not a U.S. citizen cannot legally establish the intent to reside in Florida permanently for purposes of homestead unless the homeowner, or a family member residing at the home, is a permanent resident as defined by immigration law.^[36] Courts have accepted permanent visas, pending applications for political asylum, and approved requests under Deferred Action for Childhood Arrivals (DACA) as supporting an intent to establish a permanent residence.^[37] However, courts have denied requests for homestead exemption where the homeowner or family member has only a temporary visa, such as a student, tourist, business visitor, marriage, or worker.^[38] For the most part, the progeny of Juarrero and Cooke simply adopt the Supreme Court’s holdings without much, if any discussion or analysis of intervening changes in federal immigration law and factual distinctions among the cases.

In 2011, the Third District Court of Appeal in Grisolia v. Pfeffer, 77 So. 3d 732, 733 (Fla. 3d DCA 2011), limited the Cooke decision to situations involving tourists, not persons residing in the U.S. under temporary visas. In Grisolia, the decedent owned property occupied by his wife and child at the time of his death.^[39] The decedent and the widow were legally allowed to reside in the U.S. under their temporary visas, their son was an American citizen, and they had resided in Florida since 2005.^[40] The testimonial evidence established that the family intended to permanently reside in the home due to safety concerns stemming from the attempted kidnapping of their son in Venezuela, and they had applied for permanent residence in the U.S. The district court determined that these specific circumstances were sufficient to demonstrate the decedent’s intent to have his family permanently reside in Florida.^[41] The district court noted that the eligibility for the homestead exemption depends on the intent of the homesteader rather than that of the U.S. Citizenship and Immigration Services.^[42]

The district court distinguished the Florida bankruptcy cases, In re Fodor, 339 B.R. 519 (Bankr. M.D. Fla. 2006), In re Boone, 134 B.R. 979 (Bankr. M.D. Fla. 1991), and In re De Bauer, 625 B.R. 211 (2021), as factually inapposite to Grisolia because the homeowners who were seeking to claim the homestead exemption in those cases were only in the U.S. with a business visa, which had a defined purpose with a defined end. As such, the homeowners could not establish that they had an intention of abandoning their country of origin as home.^[43] In addition, the district court distinguished the line of cases stemming from the homestead tax exemption as inapplicable to the homestead exemption from forced sale due to the different rules of construction. The tax exemption statute must be construed strictly against homeowners because the tax exemption provides relief from an ad valorem tax.^[44] “The strict construction applicable to the tax exemption stands in contrast to the liberal construction of the homestead exemption from forced sale at issue here.”^[45] Furthermore, the district court dismissed any applicability of the Florida Administrative Code’s requirements to prove the establishment of a permanent residence or home because that portion only affects the tax exemption and not the homestead exemption from forced sale.^[46] “Clearly, ‘the homestead exemption from forced sale is different from the [tax exemption].’”^[47]

Conclusion

The homestead tax exemption and the homestead exemption from forced sale derive from two different provisions of the Florida Constitution, serve two different policy goals, and are subject to two different interpretative standards. Simply put, one is not dispositive of the other. Unfortunately, the combination of the caselaw has led to a confusion of the “actual intent to reside thereon as a permanent place of residence” and the “legal intent to establish a permanent residence.” Unlike the homestead tax exemption, there is no definition of “homestead” or “permanent residence” for purposes of the homestead exemption from forced sale in either the Florida Constitution or the Florida Statutes.

Homeowners seeking to qualify for the homestead exemption must meet both an objective and subjective test. First, they or their family must actually use and occupy the home. Second, they must express an actual intent to live permanently in the home.^[48] However, the actual intent standard should not be tethered to the everchanging, and politically charged, legislation on immigration. Tying homestead to immigration laws makes establishing an actual intent to live permanently in the home is unnecessarily difficult for immigrants and nearly impossible for undocumented immigrants. Courts or the Florida Legislature need to recognize that immigrants, undocumented or otherwise, are residing and purchasing homes in Florida and should, according to the original intent of the constitutional protection, be able to reap the same benefits of home ownership as other Florida residents. Otherwise, restricting the homestead exemption from forced sale to only permanent residents could have a chilling effect on immigrants investing in their communities, opening businesses, and purchasing homes.

This column is submitted on behalf of the Business Law Section, Kacy Donlon, chair, and Andrew Layden, editor.