Can You Sell Your Home in Florida If You Have A Judgment Against You?
Helping Clients with Real Estate Matters Since 1994
The purpose of the homestead exemption in Florida is to protect the family and enable the owner of the homestead to sell the property if necessary to meet financial needs. A property’s status as exempt homestead property is established by the owner’s actual intention to live permanently on the property, coupled with actual use and occupancy of the property. In those situations where the owner has a judgment against him/her, Florida Statute 222.01(2) provides a procedure that prevents the lien from attaching to the homestead allowing the homeowner to sell or refinance the home.
According to the statute, the property owner (who has to be a natural person and not a corporation or LLC) sends a notice to the judgment creditor(s) claiming the property to be protected using the homestead exemption. The creditor then has 45 days after receipt of the notice to contest the claim of homestead. If the creditor cannot prove the property is not the debtor’s homestead then the lien does not attach to the homestead and the house can be sold or refinanced. This procedure cannot be used to remove certain liens that are not protected by the homestead law such as liens for taxes and municipal assessments, liens for labor, services or materials to repair or improve the homestead.
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READ THE LAW | FLORIDA STATUTE: CHAPTER 222.01 (2019) – METHOD OF SETTING APART HOMESTEAD
Florida Statute Relating to a Homestead and Exemptions (Which includes a form Notice of Homestead):
222.01 Designation of homestead by owner before levy.—
(2) When a certified copy of a judgment has been filed in the public records of a county pursuant to chapter 55, a person who is entitled to the benefit of the provisions of the State Constitution exempting real property as homestead and who has a contract to sell or a commitment from a lender for a mortgage on the homestead may file a notice of homestead in the public records of the county in which the homestead property is located in substantially the following form:
NOTICE OF HOMESTEAD
To: (Name and address of judgment creditor as shown on recorded judgment and name and address of any other person shown in the recorded judgment to receive a copy of the Notice of Homestead).
You are notified that the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution, the following described property:
The undersigned certifies, under oath, that he or she has applied for and received the homestead tax exemption as to the above-described property, that is the tax identification parcel number of this property, and that the undersigned has resided on this property continuously and uninterruptedly from (date) to the date of this Notice of Homestead. Further, the undersigned will either convey or mortgage the above-described property pursuant to the following:
(Describe the contract of sale or loan commitment by date, names of parties, date of anticipated closing, and amount. The name, address, and telephone number of the person conducting the anticipated closing must be set forth.)
The undersigned also certifies, under oath, that the judgment lien filed by you on (date) and recorded in Official Records Book XXX, Page XXX, of the Public Records of XXX County, Florida, does not constitute a valid lien on the described property.
YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE PROPERTY.
This XX day of XXX, 20XX.
(Signature of Owner)
(Printed Name of Owner)
Sworn to and subscribed before me by XXXX who is personally known to me or produced XXXXXX as identification, this XX day of XXXXX, 20XX.
Signature of Notary Public
(5) As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to: