Florida/Georgia Personal Injury & Workers Compensation

...s a Motion to Confirm Exemption, and upon consideration and review, the Court hereby renders the following opinion. This case presents an issue of first impression in Florida: whether a travel trailer qualifies as an exempt homestead under Fla.Stat. § 222.05....

...d in the organic law of this state. (See Baker v. State, 17 Fla 406 (1879) interpreting the homestead provision of the Florida Constitution of 1868). Article 10, § 4(a)(1) of the Florida Constitution as amended in 1972 governs homestead exemptions. Section 222.05 of the Florida Statutes as the legislative extension of Art....

...n which he may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. Fla.Stat. § 222.05 Florida has a public policy of protecting the homestead exemption and homestead statutes have enjoyed particularly liberal construction....

...the legislature left the definition of "dwelling house" open. It is the conclusion of the Court that under the proper factual circumstances such a travel trailer may be a dwelling similar to a mobile home, and this a homestead within the meaning of Section 222.05....

...tead. Moreover, Mr. Meola's trailer home, unlike the debtor's dwelling in Laube, has bathroom and cooking facilities. Based on the foregoing discussion, the Court finds that the Debtor's travel trailer is a homestead within the meaning of Fla. Stat. § 222.05....

...Before BARKDULL, HUBBART and BASKIN, JJ. BASKIN, Judge. Miami Country Day School [School] appeals a non-final order ruling that the houseboat owned by Jackie Bakst qualifies as homestead pursuant to Article X, section 4 of the Florida Constitution, and section 222.05, Florida Statutes (1993)....

...Article X, section 4 provides, in pertinent part: "[t]here shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, ... the following property owned by a natural person: (1) a homestead... ." Section 222.05, Florida Statutes (1993), sets forth when certain homesteads located on leased properties are entitled to the exemption, and provides that "any person owning and occupying any dwelling house, including a mobile home used as a residence, ... on land not his own which he may lawfully possess, by lease or otherwise, and claiming such house ... as his homestead, shall be entitled to the exemption of such house ... from levy and sale aforesaid." Although section 222.05 does not expressly state that a houseboat is entitled to homestead exemption, the language of the section is noninclusive thereby permitting designation of a houseboat as homestead if it is a dwelling house. Pursuant to section 222.05, the term dwelling house includes a mobile home and a modular home: that language suggests that the legislature intended to enlarge the definition of the term "dwelling house" rather than to limit the term to modular and mobile homes or to list every possible type of dwelling house....

...avel trailer, Meola, 158 B.R. at 881, and a motor home, Mangano, 158 B.R. at 532, are dwelling houses. Based on that analogy, the Meola and Mangano courts concluded that such property is entitled to homestead exemption under Article X, section 4 and section 222.05....

...Dean's ("Dean") claim of exemption of Dean's interest in a Cooperative Apartment. For the following reasons, this Court overrules the Trustee's Objection and concludes that Dean's interest is exempt as homestead pursuant to 11 U.S.C. Section 522, Florida Constitution Article X, Section 4 and Florida Statutes Section 222.05....

...cess of any court, and no judgment, decree or execution shall be a lien thereon . . . the following property owned by a natural person: 1. a homestead. . . . Fla. Const. Art. X, § 4 (1995). The scope of the exemption is expanded by Florida Statutes Section 222.05, which provides: Any person owning and occupying any dwelling house . . . on land not his own which he may lawfully possess, by lease or otherwise . . . shall be entitled to the exemption of such house . . . from any levy . . . as aforesaid. Fla.Stat. § 222.05 (1995)....

...Bakst, the court concluded that a 3,000 square foot houseboat was homestead property where the houseboat had been the debtor's sole residence since 1986, even though the debtor did not own the land or water beneath the houseboat. 641 So.2d 467 (Fla. 3rd Dist.Ct.App.1994). The court stated that Florida Statutes Section 222.05 is non-inclusive, indicating a Legislative intent to enlarge the definition of the term "dwelling house" rather than to limit the term to specific or defined types of dwelling homes....

...Dean does not own any other residential property. If he was removed from this Unit, he would not have anywhere to reside and would effectively be rendered homeless. Public policy underlying the homestead exemption, a liberal construction of the exemption, and Florida Statutes Section 222.05, lead to the inescapable conclusion that Den's Unit is exempt as a homestead....

...istration or tag because the vehicle is no longer driven. On March 5, 1993, the Debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The Debtors scheduled the Sports Coach exempt as their home-stead pursuant to Florida Statutes 222.05....

...On May 31, 1993, the Trustee filed a timely objection to the exemption claim. DISCUSSION The issue before the Court is whether the Debtors can claim the Sports Coach as their homestead pursuant to Article X, Section 4 of the Florida Constitution and Florida Statutes § 222.05....

...., and no judgment, decree or execution shall be a lien thereon . . . the following property owned by a natural person: (1) A homestead . . . of contiguous land and improvements thereon . . . upon which the exemption shall be limited to the residence of the owner or his family; . . . Florida Statutes § 222.05 provides in relevant part: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his own which he may lawfully possess, by lease or otherwise, and claiming *534 such house, mobile home, or modular home as his homestead, shall be entitled to the exemption of such house, mobile home, or modular home . . . The term "mobile home" is not defined in § 222.05, and neither party cited controlling case law on the issue of whether a recreational vehicle such as the Debtors' Sports Coach may be considered a "mobile home" for purposes of § 222.05....

...The primary distinction between a motor home and a mobile home as defined in Chapter 320 is that a motor home is designed and used as a vehicle whereas a mobile home is designed and used as a dwelling. The Trustee argues that the Sports Coach, because of its design, fits the definition of a "motor home," and thus under § 222.05, may not be claimed as homestead....

...ted by Myron Bubnak (Debtor). The property involved which is claimed as exempt is a 1983 Holiday Motor Home. It is the Trustee's contention that the motor home cannot be claimed as exempt pursuant to Article X, Section 4 of Fla. Const. and Fla.Stat. 222.05 because it is neither a dwelling house, a mobile home used as a residence, or a modular home owned by the Debtor....

...The precise question was considered by the Bankruptcy Court in the Southern District of Florida in In re Meola, 158 B.R. 881 (Bankr.S.D.Fla.1993), in which the Bankruptcy Court held that a travel trailer qualifies and is claimable as an exempt homestead under Article X, § 4 of the Fla. Const. and Chapter 222.05 of the Fla.Stat....

actual enactment. In a 1987 regulation, 33 C.F.R. § 222.5, App'x E, the Corps listed water supply as a project

...ed Exemptions and Motion to Compel Turnover of Non-Exempt Property. The Trustee objects to Debtor claiming the 1966 34' Hatteras boat on which he resides, as exempt homestead property under Florida Constitution Art. X, § 4(a)(1) and Florida Statute § 222.05....

...property because he does not own the land where the Boat is docked. CONCLUSIONS OF LAW The issue before the Court is whether the Boat qualifies as exempt homestead property pursuant to Article X, § 4 of the Florida Constitution and Florida Statute § 222.05....

...Florida Statutes chapter 222 implements Florida's constitutional protection against forced sale of homestead property. Meadow Groves Management, Inc., v. McKnight, 689 So.2d 315, 318 (5th Fla. Dist.Ct.App.1997). The scope of Florida's homestead exemption is expanded by Florida Statutes § 222.05, which provides in pertinent part: Any person owning and occupying any dwelling house, including a mobile home used as a residence . . . on land not his or her own which he or she may lawfully possess, by lease or otherwise, and claiming such house . . . as his or her homestead, shall be entitled to the exemption of such house . . . from levy and sale as aforesaid. Fla. Stat. § 222.05 Applying section 222.05 to the facts at hand requires analysis of whether the Boat is a "dwelling house" within the meaning of the statute, and whether the Boat is "on land not his or her own which he or she may lawfully possess." Id. The 1977 amendment to section 222.05 extended homestead protection to " any dwelling house including a mobile home used as a residence." Id....

...The Boat is equipped and is used as a residence, and as such, it qualifies as a dwelling house. Florida's Third District Court of Appeal held in Miami Country Day School v. Bakst, 641 So.2d 467 (3rd Fla. Dist. Ct. App.1994), that a houseboat was a dwelling house within Florida Statute § 222.05, and that the defendant's houseboat qualified as homestead property....

...The owner in Miami Country Day School rented rather than owned the space where his houseboat was docked. Id. at 468-69. The Trustee's contention that the Debtor must own the land where the Boat is docked in order for the Boat to qualify as exempt homestead property is not supported by the statute. Section 222.05 does not require land ownership for homestead exemption, in fact, § 222.05 clearly extends homestead protection to dwelling houses situated on leased property....

...at 535. This Court will not deny homestead protection and a fresh start to Mr. Mead because his only home is a boat. CONCLUSION Based upon the foregoing, this Court finds that the Boat qualifies as exempt homestead property as defined in Florida Statute § 222.05....

...Denied. ORDER Accordingly, it hereby ORDERED and ADJUDGED that: 1. Trustee's Objection to Claimed Exemptions is OVERRULED. The 34' Hatteras boat is exempt homestead property pursuant to Article X, § 4 of the Florida Constitution and Florida Statute § 222.05....

...alty on which the dwelling was situated. This is understandable, of course, since at the time the constitution was enacted in 1885, mobile homes, trailers or prefabricated homes were not known. In order to modernize this provision, the state enacted § 222.05 which provides that "homestead" includes a dwelling house, including a mobile home or modular home used as a residence even though the same is not located on land which is owned by the party claiming the homestead exemption....

...Article X, Section 4 of the Florida Constitution of 1885 illustrates that the homestead exemption was originally designed to protect the family residence and the realty on which the dwelling was situated. Florida expanded the protection of homestead with section 222.05, Fla....

...Stat., to include mobile homes used as a residence on leasehold estates. This provision provides that "homestead" includes a dwelling house, including a mobile home or modular home used as a residence "on land not his or her own which he or she may lawfully possesses...." Section 222.05, Fla. Stat. The Debtors and their amicus contend that section 222.05 shows the Florida legislature no longer intended homestead protection to be tied to real property. They further argue permanence of location was no longer the legislature's primary concern, but whatever a family had called its permanent home. Because of the expansive legislative intent under section 222.05, the Debtors contend their motor coach qualifies as homestead because it is the only structure where the Debtors live....

...z v. 44 Wall Street Fund, Inc., 880 F.2d 335, 341 (11th Cir.1989). Absent an ambiguity, the statute's plain meaning prevails. See, e.g. Mike Smith Pontiac, GMC, Inc. v. Mercedes-Benz of N. Am., 32 F.3d 528, 532 (11th Cir.1994). The plain language of section 222.05 conflicts with the Debtors' interpretation of the statute. By using the words "on land not his or her own which he or she may lawfully possesses" the Florida legislature intended to keep as a condition precedent to claiming homestead a connection to realty. Section 222.05 extended the protection of homestead exemption for mobile homes if the debtor has the lawful right of possession to a leasehold property interest....

...icult cases, such as this one, where because of a person's medical infirmity he or she is limited to a particular lifestyle and residence. This Court is bound to follow existing caselaw and the plain language of Florida's constitutional language and section 222.05 no matter how compelling the Debtors' situational needs may be for their use of the motor coach....

...hem to reside and work in the United States until 2003. The Debtors own a 48' Hi-Star Motor Vessel, Canadian Registration # 30E-16410, powered by twin 425 horsepower Caterpillar Diesel Engines which they claimed as their exempt homestead pursuant to Section 222.05, Florida Statutes....

...Second, it increases family stability by providing refuge from economic misfortunes. Finally, the exemption encourages property ownership and individual financial independence. In re Kirby, 223 B.R. 825 (Bankr.M.D.Fla.1998). In support of their claimed exemption, the Debtor's rely on Section 222.05 of the Florida Statutes, which provides that [a]ny person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by lease...

...881 (Bankr.S.D.Fla.1993) (32-foot travel trailer qualified as exempt homestead); Mangano, 158 B.R. 532 (Bankr.S.D.Fla.1993) (Sports Coach entitled to exemption); Miami Country Day School v. Bakst, 641 So.2d 467 (Fla. 3rd DCA 1994) (houseboat entitled to homestead protection). It is the Trustee's position that Section 222.05 limits the exemption to a "dwelling house", a "mobile home", or a "modular home"....

...that the matter was difficult since what was claimed as the homestead was "not the type of property which conventionally has been accepted to qualify as a homestead, i.e. land and the home. . . ." Id. at 458. Looking to the Florida Constitution and Section 222.05, the Court found that "it would be a totally unwarranted extension of the homestead provisions of the Florida Constitution to include a boat which was certainly not designed to serve as a permanent *203 dwelling for anybody....

...It was never equipped with a motor, and it had been towed to the location where it was docked. The Court upheld the claimed homestead exemption, distinguishing the Major case on the basis that the houseboat could not be used as a vehicle. Having reviewed the Florida Constitution, Florida Statute § 222.05, and the relevant case law, the Court finds that the motor vessel in this case, which is a navigable vehicle with Canadian registration, is not the type of property the legislature sought to protect as a homestead....

...Childers v. State, 936 So. 2d 585, 597 (Fla. 1st DCA 2006) (interpreting “includes” in section 1.01(3), Florida Statutes (2002), expansively); Miami Country Day Sch. v. Bakst, 641 So. 2d 467, 469 (Fla. 3d DCA 1994) (interpreting “including” in section 222.05, Florida Statutes (1993), expansively); Yon v....

...(Florida residents not entitled to federal exemptions under 11 U.S.C. § 522(b).) 2. The trustee filed a timely objection to the claim of exemption. B.R. 4003. As the objecting party, the trustee has the burden of proving that the claim of exemption is improper. 3. Section 222.05 of the Florida Statutes states that: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his own which he may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. 11 F.S.A. § 222.05 (1977)....

...10, § 4(a)(1) (1972) and Art. 7, § 6 (1980); F.S.A. Const. 1885, Art. 10 §§ 1 and 7 (added general election 1934, as amended general election 1938). Cf. Matter of Cooke, 412 So.2d 340 (Fla. 1982) and Juarrero v. McNayr, 157 So.2d 79, 81 (Fla.1963). 7. Section 222.05 of the Florida Statutes is a legislative extension of Art....

...The Objection and Motion are made pursuant to Bankruptcy Rules 4003 and 9013, and 11 U.S.C. Section 521(4). The Trustee's Objection and Motion to Direct Surrender arise from the Debtor's claim for a $1,000.00 homestead exemption pursuant to FLA.CONST. Article 10, Section 4, and FLA.STAT. Section 222.05....

...This amendment does not change the outcome of this Court's decision, and is incorporated herein. The primary thrust of the Trustee's objection, is her assertion that the plain and unambiguous language of FLA. CONST. Article 10, Section 4 and FLA. STAT. Section 222.05, require the Debtor to be an "owner" of her "dwelling house" before she can claim it as exempt homestead property. In pertinent part, FLA. CONST. Article 10, Section 4 provides: "There shall be exempt from forced sale . . . the following property owned by a natural person: (1) a homestead . . ." (emphasis added). In addition, FLA.STAT. Section 222.05 provides in pertinent part: 222.05 Setting apart leasehold Any person owning and occupying any dwelling house, ....

...FLA. CONSTITUTION, Article 10, Section 4(a)(2). As a result of the above, this Court holds that the Debtor's interest in said condominium unit is outside the scope of the homestead exemption set forth in FLA.CONST. Article 10, Section 4 and FLA.STAT. Section 222.05....

...to protect the family residence and the realty on which the dwelling was situated. FLA.CONST. art. X, § 4 (1885). The Florida Statutes expanded the protection of homestead to include mobile homes used as a residence on leasehold estates. FLA. STAT. § 222.05 (1997). This statutory provision provides that "homestead" includes a dwelling house, including a mobile home or modular home used as a residence "on land not his or her own which he or she may lawfully possess[.]" FLA. STAT. § 222.05 (1997)....

...Moreover, mobile boats, such as this Cabin Cruiser, are not legally capable of exemption as homestead property. In order to expand the homestead exemption of Article X, Section 4 of the Florida Constitution, the legislature enacted Florida Statute Section 222.05....

...sion. Id. (emphasis added). We have recognized this legal principle. Miami Country Day Sch. v. Bakst, 641 So.2d 467, 469 (Fla. 3d DCA 1994)(holding that a houseboat in a fixed location connected to a dock was a "dwelling house" within the meaning of section 222.05 of the Florida Statutes (1993), defining when certain homesteads located on leased properties are entitled to protection from forced sale under Article X, section 4(a))....

...ue, Inverness, Florida 34450. Debtors did not list a separate *771 mailing address. On July 10, 2001 Debtors filed their schedules. (Doc. 5.) On Schedule C Debtors listed a 1991 Bounder mobile home as exempt homestead property pursuant to Fla. Stat. § 222.05....

...ntenance. She conceded that she observed the motor home on the Real Property in April, May, or June 2001, but testified that it could have been driven at that time. The parties have stipulated that the motor home is not exempt pursuant to Fla. Stat. § 222.05 or Article X, Section 4(a)(1) of the Florida Constitution....

...Debtor listed as his mailing address, 7890 Normandy Blvd., Jacksonville 32221, a retail establishment. On April 14, 2000, Debtor filed his schedules. (Doc.11.) In his Schedule C, Debtor lists the boat and personal property aboard as exempt under Art. 10, § 4(a)(1) of the Florida Constitution and §§ 222.01, 222.02, and 222.05 of the Florida Statutes, "per case law." According to Schedule C, Debtor has no equity in the boat....

...d, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. FLA. CONST. art. X, § 4 (2000). Florida Statutes § 222.05 provides that an unorthodox residence may qualify for the Article X, § 4 homestead exemption under certain circumstances. Section 222.05 provides: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. Section 222.05 was not meant to be limited to mobile homes and modular homes. See In re Bubnak, 176 B.R. 601, 602 (Bankr.M.D.Fla.1994). Bankruptcy courts have concluded that, under certain circumstances, motor coaches and travel trailers may be imbued with the requisite permanence to qualify for homestead protection under § 222.05....

...Can a motor boat achieve the requisite "permanence" in order to qualify as a homestead under Florida law? Four courts have addressed the question at hand in the instant case: whether or not a boat may qualify for a homestead exemption under Article X, § 4, Florida Constitution and under § 222.05, Florida Statutes....

...327.02(20), cannot qualify as exempt whether a debtor lives on the boat permanently or not. One Florida appellate court found that a boat unable to propel itself and not intended for use as a vessel may qualify as a homestead. 1. Bankruptcy courts: Section 222.05 not meant to include potentially mobile motor boats designed for navigation....

...d as a dwelling place . . . [it] was designed exclusively for use as marine transportation." Id. at 415. The court also concluded in dicta that the boat was not debtor's permanent residence. See id. at 414. 2. Florida Third District Court of Appeal: Section 222.05 meant to be inclusive of unorthodox homesteads, including some boats. The Florida Third District Court of Appeal found that it was not an "unwarranted extension" of § 222.05 to bestow homestead protection on some boats....

...iness. Debtor's boat, because it is "capable of being used as a means of transportation on water," qualifies as a "motor boat" under Florida Statutes § 327.02(20). As noted in the above cases, "motor boats" do not qualify as "dwelling places" under § 222.05....

...han sleeping in a negligently derelict car transforms it into the sort of dwelling that the Florida legislature created the homestead exemption to protect. Therefore, the Court finds that it would be an "unwarranted extension" of Article X, § 4 and § 222.05 to confer homestead-exempt status upon Debtor's boat....

...Moreover, the values as stated on their schedule of assets were significantly less than those stated by them for the same assets on the loan application. For instance, on the Schedule B-4, the Debtors claimed their clothing and household goods as exempt pursuant to Fla.Stat. 222.05 and valued them at $435.00 and $650.00 respectively....

...ded to adapt the property for the owner's residence thereon. Therefore, we hold that the mobile home permanently affixed to the real estate resided in by the head of household qualifies as homestead under the Florida Constitution. We note that while section 222.05, Florida Statutes, is inapplicable to this case because the real estate herein was owned by the decedent, that statutory provision, which allows a homestead exemption for mobile homes on leased premises but omits similar protection to...

...713.78, Florida Statutes (1993), by advertising to sell McKnight's mobile home for unpaid rent. McKnight then asked the circuit court to enjoin The Groves from conducting the sale because the mobile home was exempt as homestead property pursuant to section 222.05, Florida Statutes (1993)....

...3, 1995, due to McKnight's failure to fulfil his contractual obligation to pay rent in return for lawful possession of the lot. At that time *317 he was no longer in lawful possession of the mobile home lot occupied by his mobile home as required by section 222.05, Florida Statutes (1993): Setting apart leasehold....

...(1) a homestead ... Art. X, § 4(a), Fla. Const. Chapter 222 implements Florida's constitutional protection against forced sale of homestead property to satisfy judgment creditors. Grant v. Credithrift of America, Inc., 402 So.2d 486 (Fla. 1st DCA 1981). In 1977, section 222.05 was amended to provide: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his own which he may lawfully possess, by lease or otherwise, and claiming such house...

...to this policy, the homestead exemption should be liberally construed in favor of the party claiming its protection. Miami Country Day School; In re Mangano, 158 B.R. 532 (Bankr.S.D.Fla.1993); In re Meola. Accordingly, I would construe section *319 222.05's expanded homestead provision to include owners of mobile homes used as a residence on land not his own which he may initially lawfully possess by lease or otherwise. The word "may" is used in section 222.05 to express ability, competency, permission, possibility, probability or contingency....

...ee simple ownership of land a prerequisite for homestead exemption for mobile homes. Case law has extended the exemption for mobile homes to any right or interest a person may hold in land, whether legal or equitable in nature. [3] I would interpret section 222.05 as providing homestead exemption for mobile homes if the debtor lawfully had the right to place a mobile home on the realty or occupy it while using the mobile home as his homestead....

...o McKnight's failure to fulfill his contractual obligation to pay rent in return for lawful possession of the lot." Instead, I would hold that the mobile home was exempt as homestead property pursuant to Article X, § 4(a), Florida Constitution, and section 222.05, Florida Statutes (1993), because McKnight's mobile home qualified as his homestead before the judgment for back rent was obtained....

...From the record it is clear that McKnight used the mobile home as his residence. Further, it is undisputed that McKnight formerly was in lawful possession of the lot on which his mobile home apparently still remains. It is also clear that mobile homes can qualify for the homestead exemption. Section 222.05 has been interpreted as expanding homestead protection not only to mobile homes but to other dwellings used as a debtor's home....

actual enactment. In a 1987 regulation, 33 C.F.R. § 222.5, App’x E, the Corps listed water supply as a project

...THIS CASE came before the Court for hearing to consider the Trustee's Objection to Debtor's Amended Claim of Exemptions, and the Trustee's Motion to Compel Turnover of Property of the Estate. In this Chapter 7 case, the Debtor, Richard Lisowski, has claimed a mobile home on leased land as his exempt homestead under § 222.05 of the Florida Statutes....

...o § 222.25(4) of the Florida Statutes. A debtor may claim the personal property exemption provided by § 222.25(4) if the debtor "does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." Because § 222.05 creates a separate statutory exemption and does not simply implement or extend the Constitutional homestead exemption, a claim of exemption based on § 222.05 of the Florida Statutes is not a claim of exemption "under" the Florida Constitution....

...y (Schedule B). On his initial Schedule of Property Claimed as Exempt (Schedule C), the Debtor claimed his interest in the Homestead Property as exempt pursuant to article X, section 4(a)(1) of the Florida Constitution, and § 222.01, § 222.02, and § 222.05 of the Florida Statutes....

...On October 30, 2007, the Debtor filed his first Amended Schedule A, Amended Schedule B, and Amended Schedule C. (Doc. 8). On his first Amended Schedule C, the Debtor again claimed his Homestead Property as exempt pursuant to article X, section 4(a)(1) of the Florida Constitution, and § 222.01, 222.02, and 222.05 of the Florida Statutes....

...(Doc. 30). In the second Amended Schedule, the Debtor no longer relies on the Florida Constitution as a basis for claiming his Homestead Property as exempt. Instead, the Debtor claims his interest in the Homestead Property as exempt solely pursuant to § 222.05 of the Florida Statutes, the "Modular Home Exemption." Further, in his second Amended Schedule, the Debtor claims that his household furnishings are exempt pursuant to § 222.25(4) of the Florida Statutes, instead of the Florida Constitution as previously claimed....

...nicipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family. (2) personal property to the value of one thousand dollars. . . . Fla. Const. art. X, § 4. Section 222.05 of the Florida Statutes provides: 222.05....

...he may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. Fla. Stat. 222.05....

...or receive the benefits of a homestead exemption under s. 4, Art. X" of Florida's Constitution. Although the Debtor owns and resides in a mobile home, he leases the underlying land, and he therefore asserts that his mobile home is exempt pursuant to § 222.05 of the Florida Statutes and not pursuant to the Florida Constitution. The Chapter 7 Trustee asserts that § 222.05 "merely implements the constitutional exemption for a place to live," and does not independently authorize an exemption for mobile homes....

...Consequently, the Trustee contends that the Debtor in this case is not entitled to the expanded personal property exemption allowed under § 222.25(4), because he has claimed a homestead exemption under the Florida Constitution by virtue of his claim under § 222.05. The Debtor, on the other hand, asserts that § 222.05 independently operates to exempt mobile or modular homes from levy or forced sale....

...According to the Debtor, the statute "acts as its own source of protection for a debtor's home," similar to other exemption provisions contained in Chapter 222 of the Florida Statutes. (Doc. 40, pp. 2-5). The issue, therefore, is whether a debtor's homestead claim under § 222.05 of the Florida Statutes constitutes a claim of exemption "under s. 4, Art. X of the State Constitution." If § 222.05 merely implements the constitutional homestead provision, so that a claim under the statute is essentially a claim under the Florida Constitution, then the debtor is not entitled to the expanded personal property exemption authorized by § 222.25(4), because he is claiming a homestead exemption "under" the Florida Constitution. On the other hand, if § 222.05 creates a separate basis for exempting certain dwelling houses, independently of the Florida Constitution, then the debtor may be entitled to the expanded personal property exemption authorized by § 222.25(4), because he is not claiming the exemption "under s. 4, Art. X of the State Constitution." The Court determines that a claim of exemption based on § 222.05 of the Florida Statutes is not a claim of exemption "under" the Florida Constitution. For the reasons set forth below, the Court finds that § 222.05 creates a separate statutory exemption, and does not simply implement or extend the Constitutional exemption....

...anguage contained in the Statute. The Statute states that the personal property exemption is available if the debtor does not claim a homestead exemption "under s. 4, Art. X" of the Florida Constitution. B. Historically, the Florida Constitution and Section 222.05 of the Florida Statutes developed separately....

...of such house from levy and sale as aforesaid. . . . Chapter 1,715, The Acts and Resolutions Adopted by the Legislature of Florida at its Extra Session, beginning June 8th, 1869 (Emphasis supplied). Section 5 of Chapter 1,715 was later codified into § 222.05 of the Florida Statutes. In 1977, the Florida Legislature amended the statute to include a mobile home or modular home within the statutory exemption. The statutory exemption provided by § 222.05 of the Florida Statutes now specifically includes mobile homes on land that is not owned by the debtor. 222.05....

...he may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. Fla. Stat. 222.05(Emphasis supplied)....

...Clearly, the statute adopted in 1869 would not have been necessary if the Constitution of 1868 included an exemption for homesteads located on leased land. In the case currently before the Court, the issue is whether a debtor's homestead claim under § 222.05 of the Florida Statutes is a claim of exemption "under s....

...on by the Florida Supreme Court. Based on these considerations, the Court determines that the Constitutional homestead exemption applies to improved land or real property owned by a debtor, provided the debtor's residence is situated on the land. D. Section 222.05 of the Florida Statutes expressly applies to persons who do not own land. Florida's Constitutional homestead exemption is based on the ownership of improved land. The statutory exemption set forth in § 222.05 of the Florida Statutes, however, provides that a dwelling house on land that is not owned by the debtor, but which is claimed as his or her homestead, is entitled to the exemption from levy and sale. Section 222.05 authorizes an exemption for "mobile and modular homes held by a debtor where the debtor merely leases the land." In re Yettaw, 316 B.R. 560, 562 (Bankr.M.D.Fla.2004). The statute provides an exemption for "mobile homes used as a residence on leasehold estates." In re Andiorio, 237 B.R. 851, 852 (Bankr. M.D.Fla.1999). "Section 222.05 does not require land ownership for homestead exemption, in fact, § 222.05 clearly extends homestead protection to dwelling houses situated on leased premises." In re Mead, 255 B.R....

...n. The property that is the subject of the exemption is the mobile home, not the land or real property upon which it is situated. E. The homestead exemption provided by the Florida Constitution is separate and distinct from the exemption provided by § 222.05 of the Florida Statutes. As described above, the homestead exemption provided by Article X, Section 4(a)(1) of the Florida Constitution applies to improved land or real property owned by a debtor, provided the debtor's residence is situated on the land. Section 222.05 of the Florida Statutes, on the other hand, expressly applies to persons who do not own the land upon which their mobile home is situated....

...ip, the Court finds that the statute does not simply "implement" the Constitutional exemption. On the contrary, the Court finds that the homestead exemption provided by the Florida Constitution is separate and distinct from the exemption provided by § 222.05 of the Florida Statutes....

...alty on which the dwelling was situated. This is understandable, of course, since at the time the constitution was enacted in 1885, mobile homes, trailers or prefabricated homes were not known, In order to modernize this provision, the state enacted § 222.05 which provides that "homestead" includes a dwelling house, including a mobile home or modular home used as a residence even though the same is not located on land which is owned by the party claiming the homestead exemption....

...More directly on point, the State Court was subsequently asked to determine whether a mobile home affixed to land could be exempted as homestead property under Florida law. Gold v. Schwartz, 774 So.2d 879 (Fla. 4th DCA 2001). The court stated: We note that while section 222.05, Florida Statutes, is inapplicable to this case because the real estate herein was owned by the decedent, that statutory provision, which allows a homestead exemption for mobile homes on leased premises but omits similar protection to...

...In other words, the mobile home and underlying real property could be claimed as exempt under the Constitutional homestead provision, but not under the statutory exemption, *780 because the two provisions apply to different circumstances. See also In re Meola, 158 B.R. 881, 882 (Bankr.S.D.Fla.1993)(Section 222.05, not the Constitution, was the applicable state law to determine whether a travel trailer qualified as exempt homestead.). Section 222.05 of the Florida Statutes creates a basis for exempting mobile homes that is separate and distinct from the Constitutional exemption....

...923, 925 (Bankr.M.D.Fla.1996)). Restriction or expansion of the rights provided by the Florida Constitution can only be achieved through an amendment to the Constitution. See In re Clements, 194 B.R. at 925. The legislative act at issue in this case is § 222.05 of the Florida Statutes. Section 222.05 provides a statutory exemption for mobile homes that are situated on land that is not owned by the debtor....

...Conclusion Section 222.25(4) provides an exemption for personal property with a value not to exceed $4,000.00, "if the debtor does not claim or receive the benefits of a homestead exemption under s. 4, Art. X of the State Constitution." In this case, the Debtor has claimed his mobile home as exempt pursuant to § 222.05 of the Florida statutes. The issue, therefore, is whether a debtor's homestead claim under § 222.05 of the Florida Statutes constitutes a claim of exemption "under" the Florida Constitution. If the Debtor's claim is not a claim "under" the Florida Constitution, he may be entitled *781 to the personal property exemption provided by § 222.25(4) of the Florida Statutes. The Court concludes that a claim of exemption based on § 222.05 of the Florida Statutes is not a claim "under" Article X, Section 4 of the Florida Constitution....

...According to the express language of the Constitutional exemption, homestead property must consist of an interest in realty to qualify for the exemption under Article X, Section 4(a)(1) of the Florida Constitution, In re Estate of Wartels, 357 So.2d at 710. Section 222.05 of the Florida Statutes, however, provides an exemption for mobile homes that arc situated on land that is not owned by the debtor....

...welling house in which the debtor resides, not the land on which the mobile home is situated. Consequently, the Court concludes that the homestead exemption provided by the Florida Constitution is separate and distinct from the exemption provided by § 222.05 of the Florida Statutes, Gold v. Schwartz, 774 So.2d at 879. The exemptions apply to different types of property interests, and the Statute does not simply implement the Constitutional exemption. Finally, the Court determines that the statutory exemption provided by § 222.05 does not represent an extension or expansion of the Constitutional exemption, because legislative enactments may not alter or expand the rights provided by the Florida Constitution. Havoco, 790 So.2d at 1029. The statutory exemption provided by § 222.05 of the Florida Statutes is separate and distinct from the Constitutional homestead exemption provided by Article X, Section 4(a)(1) of the Florida Constitution. Consequently, the Debtor's claim that his mobile home is exempt pursuant to § 222.05 of the Florida Statutes is not a claim of exemption "under" the Florida Constitution....

...of the constitutional homestead exemption to claim personal property up to $4,000. The Trustee objects and contends that the Debtors are not entitled to the $4,000 personal property exemption since they have exempted their homestead under FLA. STAT. § 222.05 on their Schedule C. Conversely, the Debtors insist that the homestead exemption under FLA. STAT. § 222.05 is statutory and distinct from constitutional homestead, and they are therefore entitled to the $4,000 personal property exemption since they do not claim or receive constitutional homestead benefits as FLA. STAT. § 222.25(4) requires. For the reasons explained herein, I find that the FLA. STAT. § 222.05 homestead provision is statutory and distinct from homestead under Article X, section 4 of the Florida Constitution. Therefore, when the Debtors exempt their homestead under FLA. STAT. § 222.05, they do not claim the constitutional homestead....

...Facts The Debtors filed a voluntary Chapter 7 petition on May 16, 2008. They own and *739 reside in a 2002 mobile home located on a leased lot in Miramar Beach, Florida. On their Schedule C, the Debtors listed their mobile home as exempt pursuant to FLA. STAT. § 222.05. They also claimed personal property worth $4,000 as exempt under the FLA. STAT. § 222.25(4) exemption. The Trustee subsequently filed a timely objection to the Debtors' exemptions. The Trustee argues that FLA. STAT. § 222.05 is an extension of constitutional homestead and renders the Debtors' exemption under it a constitutional homestead claim....

...Finally, the Trustee maintains that the Debtors' situation is distinguishable from cases exempting real property as tenancy by the entireties, which is different from constitutional homestead. The core of the Debtors' argument is that the homestead exemption under FLA. STAT. § 222.05 is statutory and therefore distinct from constitutional homestead....

...l homestead benefits, and that they have not received such benefits. Finally, The Debtors claim that that their mobile home is unlike a traditional home in that it will depreciate in value and eventually become worthless. Discussion Under FLA. STAT. § 222.05, mobile home owners who occupy the home, and whose home is legally located on land they do not own, may claim the mobile home as their homestead and therefore exempt it from levy and sale....

...fits, FLA. STAT. § 222.25(4) allows a personal property exemption of up to $4,000. The Debtors argue that they are entitled to the $4,000 personal property exemption under FLA. STAT. § 222.25(4) since they exempted their homestead under FLA. STAT. § 222.05 rather than the Constitution. The issue here is whether FLA. STAT. § 222.05, a statutory homestead provision, is an extension of homestead under Article X, section 4 of the Florida Constitution. A closer examination of the case law, the current and past Florida Constitutions, and the legislative history for FLA. STAT. §§ 222.05 and 222.25 supports the conclusion that the homestead exemption under FLA. STAT. § 222.05 is statutory and distinct from Florida's constitutional homestead exemption. Therefore, the Debtors are entitled to the $4,000 personal property exemption under FLA. STAT. § 222.25(4). Some courts which have considered the applicability of the homestead provision under FLA. STAT. § 222.05 have stated that the statute is an extension of Florida's constitutional homestead. [1] In other cases, *740 the court analyzed FLA. STAT. § 222.05 and Article X, section 4 of the Florida Constitution together. [2] Despite the initial appearance that FLA. STAT. § 222.05 is an extension of constitutional homestead, a closer examination reveals that all of these cases are distinguishable in that their focus was on determining which types of non-traditional homes qualify for the homestead exemption. In the case before the Court today, there is no dispute over whether the Debtors' mobile home qualifies for some form of homestead exemption. Rather, the parties disagree about whether claiming a homestead exemption under FLA. STAT. § 222.05 is effectively the same as claiming constitutional homestead....

...incorporated city or town, ... together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempted from forced sale under any process of law— FLA. CONST. of 1868, art. IX, § 1(1868). FLA. STAT. § 222.05 was enacted in 1869, and originally provided that "[a]ny person owning and occupying any dwelling-house or land not his own which he may lawfully possess, by lease or otherwise, and claiming such house as his homestead, shall be entitled to the exemption of such house from levy and sale as aforesaid." Chapter 1,715, s....

...te homestead exemptions. Therefore, the Debtors are not entitled to claim the constitutional homestead exemption since they do not own the land on which their mobile home is located. They are only entitled to the statutory homestead under FLA. STAT. § 222.05. *741 This interpretation of FLA. STAT. § 222.05 and the constitutional homestead provision is consistent with the longstanding principle that "[e]xpress or implied provisions of the Constitution cannot be altered contracted or enlarged by legislative enactments." Sparkman v....

...The court sided with the debtor and explained that it is a "well-established principle that the legislature has no power to abrogate, alter, or amend, any provisions of the Constitution." Id. Finally, the plain language of FLA. STAT. § 222.25 also lends support to the conclusion that FLA. STAT. § 222.05 is not an extension of the constitution, and the Debtors are therefore entitled to the $4,000 personal property exemption....

...00 personal property exemption does not apply to those who claim constitutional homestead is further evidence that law makers distinguish between the various forms of the exemption. Conclusion For the reasons stated above, I conclude that FLA. STAT. § 222.05 is not an extension of Article X, section 4 of the Florida Constitution. Therefore, when the Debtors claim their home to be exempt under FLA. STAT. § 222.05, it is not the equivalent of claiming constitutional homestead....

...It is therefore ORDERED and ADJUDGED that the Trustee's Objection to the Debtor's Exemptions is OVERRULED. DONE and ORDERED. NOTES [1] See In re Hacker, 260 B.R. 542, 545, 548 (Bankr.M.D.Fla.2000) (refusing to confer homestead on a boat for fear that "it would be an unwarranted extension of Article X, § 4 and FLA. STAT. § 222.05"); In re Mead, 255 B.R. 80, 83-84 (Bankr.S.D.Fla.2000) (explaining that FLA. STAT. § 222.05 extends constitutional homestead to nontraditional dwellings used as residences, including those located on leased lands, or as it was in this case, a boat on a leased dock); In re Brissont, 250 B.R. 413, 414 (Bankr.M.D.Fla.2000) (explaining that FLA. STAT. § 222.05 extends homestead protection to non-traditional dwellings); In re Andiorio, 237 B.R. 851, 852 (Bankr.M.D.Fla. 1999) (stating that FLA. STAT. § 222.05 extends homestead to mobile homes under certain circumstances); In re Kirby, 223 B.R. 825, 829 (Bankr.M.D.Fla.1998) (denying homestead protection to a motor coach despite the fact that FLA. STAT. § 222.05 extends constitutional homestead); In re Major, 166 B.R. 457, 459 (Bankr.M.D.Fla.1994) (declining homestead protection to a boat as an "unwarranted extension of the homestead provision of the Florida Constitution"); In re Sanders, 72 B.R. 124, 125 (Bankr.M.D.Fla.1987) (explaining that FLA. STAT. § 222.05 "is a legislative extension" of constitutional homestead). [2] See In re Edwards, 356 B.R. 807, 810 (Bankr.M.D.Fla.2006) (interpreting FLA. STAT. § 222.05 as setting "forth the procedures for claiming a homestead exemption"); In re Walter, 230 B.R. 200, 202-203 (Bankr. S.D.Fla.1999) (considering FLA. STAT. § 222.05 and the Florida Constitution together in its analysis); In re Bubnak, 176 B.R. 601, 603 (Bankr.M.D.Fla.1994) (explaining that FLA. STAT. § 222.05 implements the constitutional homestead).

actual enactment. In a 1987 regulation, 33 C.F.R. § 222.5, App’x E, the Corps listed water supply as a project

...The motor home is a 1998 twenty-eight foot Bounder recreational vehicle ("Motor Home") valued at $20,000.00 with no encumbrances. The Debtors claim the Motor Home as fully exempt homestead property in Schedule C pursuant to Article X, Section 4(a) of the Florida Constitution and Fla. Stat. Sections 222.01, 222.02, and 222.05 (Doc....

...: (1) a homestead ... if located within a municipality, to the extent of one-half acre of contiguous land, upon *834 which the exemption shall be limited to the residence of the owner or the owner's family. FLA. CONST. art. X, § 4(a). Florida Stat. Section 222.05 provides: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by lease or otherwise, and claiming such house, mobile home, or modular home as his or her homestead, shall be entitled to the exemption of such house, mobile home, or modular home from levy and sale as aforesaid. Fla. Stat. 222.05....

...ly attached to the Lot, and the utility connections are not sufficiently permanent. Motor homes, also commonly referred to as recreational vehicles, are not specifically identified in Article X, Section 4(a) of the Florida Constitution or Fla. Stat. Section 222.05 as homestead property. Motor homes are not "mobile homes," which are enumerated as dwelling houses in Fla. Stat. Section 222.05....

...In re Franzese, 383 B.R. 197, 202-03 (Bankr. M.D.Fla.2008). A "bankruptcy court must interpret and apply the Florida exemption law in the same manner as a Florida State Court." Colwell, 196 F.3d at 1226 (11th Cir.1999). The list of dwelling houses contained in Fla. Stat. Section 222.05 entitled to homestead protection is not exclusive....

...d as her sole permanent residence, qualified as a dwelling house and was entitled to homestead exemption). The homestead exemption does not require the party claiming the exemption to own the land upon which the dwelling house is located. Fla. Stat. § 222.05....

...It is connected to utilities and contains all of the Debtors' personal possessions. (vi) The physical configuration of the Mobile Home permits habitation. The Schumachers' Mobile Home is a "dwelling house" qualifying for a homestead exemption pursuant to Fla. Stat. Section 222.05 and Article X, Section 4(a) of the Florida Constitution....

...Lot. The Trustee has failed to establish the Motor Home is not a dwelling house entitled to homestead protection. The facts and circumstances establish the Motor Home is the Debtors' permanent residence and is a dwelling house pursuant to Fla. Stat. Section 222.05. The Motor Home is entitled to homestead exemption pursuant to Article X, Section 4(a) of the Florida Constitution and Fla. Stat. Sections 222.01, 222.02, and 222.05....

...ALLOWED and their interest in the Motor Home located at 117 Sandalwood Drive, Paisley, Lake *837 County, Florida 32767 is exempt as homestead pursuant to Article X, Section 4(a) of the Florida Constitution and Fla. Stat. Sections 222.01, 222.02, and 222.05.

...n, and ultimately, according to the Government, the Debtor has abandoned any claim to the homestead. Although the Government did not respond to the alternative ground asserted by the Debtor in support of the claim of exemption pursuant to Fla. Stat. § 222.05, in its oral argument on the Motion the Government took the position that the statute is not applicable to the issues involved here....

...Second, the Debtor contends that bare legal title is not required, and she can claim the homestead exemption as a result of her equitable and beneficial ownership in the property. The Debtor further argues that homestead is not limited to the constitutional provisions of the state, as Fla. Stat. § 222.05 is an additional source of exemption....

...ghter. Id. In the instant analysis, the Debtor's claim rests on the proposition that she resides in the property, and possession itself is sufficient to support the homestead claim. In support of this contention, the Debtor also relies on Fla. Stat. § 222.05, which provides: Any person owning and occupying any dwelling house, including a mobile home used as a residence, or modular home, on land not his or her own which he or she may lawfully possess, by lease or otherwise, and claiming such hou...

...As noted earlier, this record is devoid of any believable evidence to establish the basis of the Debtor's right to occupy the residence, except her position that she owned the property, rather than the record owner. The reliance of the Debtor on Fla. Stat. § 222.05 and the cases of In re Bubnak, 176 B.R....