Noncitizen Property Owners May be Entitled to Florida Homestead Exemption

by Buchanan Ingersoll & Rooney PC
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Under the Florida Constitution, certain owners of real property in Florida are entitled to a reduction in the assessed value of the property for ad valorem tax purposes. This reduction, called the “homestead exemption,” is available to all property owners who maintain Florida real property as either (1) the permanent residence of the owner or (2) the permanent residence of a person who is dependent on the owner.

Florida courts have long held that the “permanent residence” requirement means that individuals who do not possess the legal right to permanently reside in Florida cannot establish that a Florida property is their permanent residence. Accordingly, such individuals are not entitled to the homestead exemption. Juarrerro v. McNayr, 157 So.2d 79, 81 (Fla. 1963). This means that foreign nationals living in the U.S. on temporary, nonimmigrant visas or unlawfully, cannot take advantage of the homestead exemption; only lawful permanent residents and U.S. citizens may do so.

In October of last year, however, the Florida Supreme court held in Garcia v. Andonie that even though a property owner does not have permanent legal status, he or she may still take advantage of the homestead exemption if his or her children or other dependents have the right to live in the U.S. permanently. 101 So.3d 339 (Fla. 2012). In Garcia, the property owners were in the U.S. under E-2, treaty investor, status. Because the E-2 visa is a temporary, nonimmigrant visa, the owners did not have the right to reside permanently in the United States and thus could not receive the homestead exemption in their own right. However, the owners resided in their Florida home with their three minor children, all of whom were U.S. citizens. The Supreme Court held that because the children, i.e. the legal dependents of the property owners, could lawfully reside permanently in the U.S., the owner-parents were entitled to receive the homestead exemption.

As a result of the Court’s ruling in Garcia, foreign nationals who are not permanent residents or U.S. citizens may still be eligible for the homestead reduction in assessed value of real property. To be eligible, such foreign nationals must intend to live permanently in the Florida home with dependents who are permanent residents or U.S. citizens.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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