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

• Author: Dorris, Mariane L.

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, [section]4, and the homestead exemption from taxation set forth in Fla. Const. art. VII, [section]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 [section]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, [section]7, adopted in 1934. (12)

After Steuart, the State of Florida amended Fla. Const. art. X, [section]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, [section]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, [section]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...