Does Contract To Sell Homestead Immediately Forfeit Creditor Protection?

A Florida resident's homestead is protected even if he is not residing the house temporarily as long as he intends to return the same property and considers the property to be his primary residence. If and when the facts indicate that the owner intends to abandon the homestead as a primary residence the homestead protection is lost. Abandonment is clear when the debtor sells the homestead property. A Florida bankruptcy court recently considered the question of whether a debtor shows his intent to abandon his homestead when he signs a contract to sell the property. A debtor executed a contract to sell, clearly intending and hoping to sell his homestead and then move, and prior to closing the sale the debtor filed bankruptcy.

The court held that contracting to sell a homestead is not the same as actually selling the property, and therefore, that the sales contract prior to closing does not constitute abandonment. The court cited prior Florida court decisions holding that homestead abandonment is usually shown by the debtor's acquisition of and move in to a new domicile or transfer by deed to a third party. As long as the debtor holds legal title and physically occupies a home the debtor is entitled to homestead protection from creditors and bankruptcy trustees. In re: Vick Case No. 07-10844

posted by Jonathan Alper, asset protection and banrkuptcy attorney, Orlando, Florida

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