Florida/Georgia Personal Injury & Workers Compensation

...Blasingame, 564 So.2d 543, 545 (Fla. 2d DCA 1990) (holding that pursuant to section 732.702(1), Florida Statutes, a surviving spouse can waive homestead in a written prenuptial agreement); Haddock v. Carmody, 1 So.3d 1133 (Fla. 1st DCA 2009) (concluding that pursuant to section 196.061, Florida Statutes, one can abandon property's homestead status by renting it out); Cutler v....

...Torres of The Levy Law Firm, Tallahassee, for Appellants. Arthur I. Jacobs and Richard J. Scholz of Jacobs & Associates, P.A., Fernandina Beach; Stephen H. Durant of Durant & Schoeppel, P.A., Jacksonville, for Appellees. THOMAS, J. Appellants challenge the trial court's final judgment finding section 196.061, Florida Statutes (2005), unconstitutional as applied to Appellees, and its order granting Appellees a homestead tax exemption for 2003, 2004, and 2005. Because we find the trial court erred in finding section 196.061, Florida Statutes, unconstitutional as applied to Appellees, we reverse. Further, we hold that, under section 196.061, Florida Statutes, Appellees rented their entire dwelling to others, thus abandoning their homestead status for tax purposes....

...*1135 In October 2005, Appellant Haddock sent notice to Appellees that their homestead tax exemption was revoked for 2003, 2004, and 2005. The revocation was based on the unit's status as rental property, which constitutes an abandonment of homestead status under section 196.061, Florida Statutes....

...able value of the property escalated, resulting in a significant tax increase. Appellees brought suit, alleging that revocation of their homestead tax exemption violated their rights under the Florida Constitution. The trial court subsequently found section 196.061, Florida Statutes, unconstitutional as applied to Appellees and ordered Appellant Haddock to grant Appellees the homestead tax exemption for the years 2003, 2004, and 2005....

...Whenever possible, courts should construe a challenged law to effect a constitutional outcome. Fla. Dep't of Rev. v. Howard, 916 So.2d 640, 642 (Fla.2005) (citing E. Air Lines, Inc. v. Dep't of Rev., 455 So.2d 311, 314 (Fla.1984); Chatlos v. Overstreet, 124 So.2d 1, 2 (Fla.1960)). At issue is the application of section 196.061, Florida Statutes, which states in part: 196.061 Rental of homestead to constitute abandonment—The rental of an entire dwelling previously claimed to be a homestead for tax purposes shall constitute the abandonment of said dwelling as a homestead, and said abandonment shall continue until such dwelling is physically occupied by the owner thereof. However, such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years. § 196.061, Fla....

...Thus, in order to benefit from the Save Our Homes tax cap, a taxpayer must successfully apply for and receive homestead exemption status under the statutory procedures established by the legislature. In the present case, under the reasoning and rulings in Markham and Zingale, the trial court erred in ruling section 196.061, Florida Statutes, unconstitutional as applied to Appellees. Article VII, section 6, provides that the legislature may establish by law the procedures for claiming the homestead tax exemption. Accordingly, section 196.061 is the legislature's establishment of how rental property is to be treated under the homestead exemption law and is not unconstitutional as applied to Appellees. B. Construction Since we find that section 196.061, Florida Statutes, is not unconstitutional as *1137 applied to Appellees, we now turn to construing the statute....

...outset that statutes involving tax exemptions are strictly construed against the taxpayer. DeQuervain v. Desguin, 927 So.2d 232, 236 (Fla. 2d DCA 2006) (citing Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla. 1993)). In construing section 196.061, we first consider its plain meaning....

...If the language is unambiguous and conveys a clear and definite meaning, that meaning controls unless it leads to a result that is either unreasonable or clearly contrary to legislative intent. Tillman v. State, 934 So.2d 1263, 1269 (Fla.2006). The application of section 196.061 hinges on the term "entire dwelling." If a property owner does not rent out the entire dwelling, then the statute does not apply....

...Consistent with his intention to make it his residence, he carved out a portion of it for purposes of maintaining his personal effects, his important legal papers, as he testified to." Appellees argue that the entire condominium unit was not rented because the renters did not have access to two locked closets; therefore, section 196.061, Florida Statutes, does not apply....

...ion of the statute by merely preventing access to a de minimus amount of space within the structure, such as occurred here. We decline to rigidly interpret the word "entire" to mandate such an unreasonable conclusion. Accordingly, we hold that under section 196.061, Florida Statutes, Appellees rented their entire dwelling, notwithstanding the fact that they reserved two locked closets for personal storage. Although section 196.061, Florida Statutes, establishes abandonment of the homestead tax exemption upon rental of the entire dwelling, it contains a clause which provides relief in certain situations. Notably, the statute provides that "such abandonment of such homestead after January 1 of any year shall not affect the homestead exemption for tax purposes for that particular year so long as this provision is not used for 2 consecutive years." § 196.061, Fla....

...We decline to interpret this provision, as neither party had cause to address it in light of the trial court's order, but we note that the trial court must address this provision before *1138 entering a final order adjudicating Appellees' tax liability. Conclusion In conclusion, we hold that the trial court erred in finding section 196.061, Florida Statutes, unconstitutional as applied to Appellees. Further, we hold that under section 196.061, Florida Statutes, Appellees rented their entire condominium unit to others, despite their reservation of two closets for storing personal items....

...The constitutionality of such a mechanism (as applied) was thoroughly addressed in Haddock v. Carmody, 1 So.3d 1133 (Fla. 1st DCA 2009). In that case, a property owner claimed and received the homestead tax exemption for a condominium that was subject to a rental program. Under section 196.061, Florida Statutes (2005), the rental of an entire dwelling claimed to be a homestead “shall constitute the abandonment of said dwelling as a homestead.” On that basis, the property tax appraiser notified the owner that the exemptions for three prior years were revoked....

...Initially, the state attorney was given the impression that Patricia Parrish had claimed three homestead exemptions for herself. Subsequently, however, the property appraiser maintained the exemptions were claimed improperly because the property had been rented. Section 196.061, Florida Statutes, [2] generally known as the "rental abandonment statute," provides that rental of property formerly claimed as homestead constitutes an abandonment of the homestead exemption....

...ildren was entirely proper, initially, it was represented to the state attorney and to the press that Patricia Parrish had claimed three homestead exemptions for herself. Subsequently, the property appraiser relied on the rental abandonment statute, section 196.061, Florida Statutes (1985), as justification for the decision to prosecute....

...the context of the particular offense. I would reverse. NOTES [1] The record establishes that the deputy property appraiser and the employee who discovered the Parrish infraction were supporters of and contributors to Brand's political campaign. [2] § 196.061, Fla....

...ne year commercial lease, the condominium home located at 9417 Fountainbleu Blvd., # 108, Miami, Florida does not meet the homestead requirements of the homestead exemption as set forth in Florida Constitution Article X section 4 and Florida Statute § 196.061 and therefore is subject to administration by the Trustee for the benefit of the general estate....

...Therefore, on the date of the commencement of the Chapter 7 case on November 24, 1992 the former *92 residence did not qualify for the homestead exemption pursuant to the Florida Constitution Art. X § 4. The Trustee also relies on Florida Statute § 196.061, a Taxation and Finance statute which caption reads "Rental of homestead to constitute abandonment" to further support his position of abandonment: that the rental of the homestead property constitutes abandonment as stated by F.S. § 196.061....

...are that it was always her intention to return to the homestead property. Therefore she is entitled to the homestead exemption granted by the Florida opt-out provisions to the Bankruptcy law. The Trustee's objection is also based on Florida Statute § 196.061 and a simple reading in the classical Justice Scalia manner of the caption of § 196.061, Rental of Homestead to Constitute Abandonment....

...r property. Finally we come to the homestead which is exempt from levy under the Florida Constitution Article X, § 4, and that is the homestead which we are dealing with in this case. I believe that a reading of the Statute makes it clear that F.S. § 196.061 is talking about what happens if you rent your property....

...back. The Shillinglaw and Imprasert cases say that the temporary absence from a homestead and the renting does not constitute abandonment, if there is an intention to return to the homestead. It is my decision to follow those cases. Florida Statute § 196.061 does not apply to the bankruptcy exemption but rather it is directed to the tax exemption on homestead property....

...xemption without regard to whether the property owner resides on the property. With regard to military personnel, the statutes contain specific language acknowledging that physical presence is not essential to a determination of permanent residence. Section 196.061 , Florida Statutes, generally makes the rental of homestead property to another an abandonment of such property for homestead tax exemption purposes....

...nd see , Op. Att'y Gen. Fla. 74-115 (1974) ("[B]oth military personnel and civilians must satisfy the permanent residence requirement of the Constitution and statutes before a homestead exemption may properly be granted. An exception is provided by ss. 196.061 and 196.071 , F.S., so that military personnel who have qualified for Florida's homestead tax exemption but later transfer their residence temporarily to another location because of their military duties will not lose their Florida homestead tax exemption.") 9 687 So.2d 1325 ((Fla....

...Appraiser mailed Appellants a notice denying their homestead exemption. The notice marked two reasons for disapproving Appellants’ exemption: (1) not making the property a permanent residence (ss. 196.011 and 196.031, F.S.); and (2) abandoning the homestead by renting it contrary to § 196.061 (entitled “Rental of Homestead to constitute abandonment”): After receiving the notice, Appellants contacted the Property Appraiser claiming that the notice was invalid....

...(The common areas shared by Rebholz and his tenants might be considered an example of such dual use.) We need not decide if Rebholz is right about that, because the record leaves no doubt that Rebholz did not use the disputed 15% of his property as his residence at all. Rebholz also seeks support from section 196.061, Florida Statutes (2014)....

...nues until the dwelling is physically occupied by the owner.” Rebholz argues that, since it is undisputed that he did not rent out the entire structure, the rental of a single room should not affect his homestead exemption. We think that section 196.061 has no bearing on this case. The property appraiser does not claim that Rebholz “abandoned” or was absent from his homestead. It is undisputed that Rebholz at all relevant times resided in a portion of the property, and the property appraiser has left intact the homestead exemption as to that portion. Section 196.061 simply does not speak to the circumstances here. Finally, Rebholz invokes an aspect of section 196.031(4) that we have not yet discussed....