United States District Court, N.D. Florida, Panama City Division
ORDER GRANTING SUMMARY JUDGMENT
L. HINKLE UNITED STATES DISTRICT JUDGE
case presents a question of Florida law: does the homestead
exemption apply when the owner of a vacant lot begins
construction of a house but is living elsewhere? The answer
is no. This order grants summary judgment for a creditor
seeking to enforce a lien against the property.
plaintiff Kevin Clements obtained a judgment against the
defendant Nicholas Farhood in Texas. Mr. Clements properly
recorded the judgment in Bay County, Florida. At the time of
the recording, Mr. Farhood owned a lot in Bay County. A
foundation had been poured, and construction of a house was
proceeding. Mr. Farhood lived in an apartment two counties
away but planned to move into the house when construction was
the house was completed and Mr. Farhood moved in, Mr.
Clements applied to the Sheriff of Bay County to levy on the
property. The Sheriff scheduled a public sale, but Mr.
Farhood sent the Sheriff a declaration of homestead. The
Sheriff stood down pending a judicial determination of
whether the property is indeed homestead. This was proper.
See Grant v. Credithrift, Inc., 402 So.2d 486 (Fla.
1st DCA 1981).
Clements filed this action under Florida Statutes §
222.10, which provides for an action by a creditor to
determine the validity of a debtor's claim that property
is exempt from execution, including on the ground of
homestead. The case is within the court's diversity
Clements has moved for summary judgment. As allowed by
Federal Rule of Civil Procedure 56, Mr. Clements filed the
motion early in the case. Mr. Farhood objected, but the
discovery period now has ended, and Mr. Farhood has not
attempted to submit additional evidence or supplement his
response. The motion has been fully briefed and is ripe for a
summary-judgment motion, disputes in the evidence must be
resolved, and all reasonable inferences from the evidence
must be drawn, in favor of the nonmoving party. The moving
party must show that, when the facts are so viewed, the
moving party “is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A summary-judgment
motion cannot be used to resolve in the moving party's
favor a “genuine dispute as to any material
fact.” Fed.R.Civ.P. 56(a).
Florida law, which governs this dispute, a judgment becomes a
lien against real property in a county on the date when the
judgment is properly recorded in that county. See
Fla. Stat. § 55.10. But under Florida Constitution
article X, section 4, a lien does not attach to homestead
property. Mr. Clements has a lien on the property at issue
unless the property was homestead on February 29, 2016, the
date on which Mr. Clements properly recorded the judgment in
Bay County. See Kirkland v. Kirkland, 253 So.2d 728,
730 (Fla. 3d DCA 1971) (“In Florida, the rule has been
established that homestead property is subject to levy under
judgments recorded prior to the time such property became the
homestead of the judgment debtor.”). Both sides agree
that this is a correct statement of the governing law.
Florida Constitution limits the acreage that may be claimed
as homestead-half an acre in a municipality and 160 acres
elsewhere-but does not otherwise define homestead. The
Florida Supreme Court has said this: “[T]he homestead
intended by our Constitution to be exempt is the place of
actual residence of the party and his family . . . .
The character of property as a homestead depends upon an
actual intention to reside thereon as a permanent place of
residence, coupled with the fact of
residence.” Hillsborough Inv. Co. v.
Wilcox, 152 Fla. 889, 894-95, 13 So.2d 448, 451-52
(1943) (emphasis added). The court sustained the homestead
claim in Wilcox because the debtor and her family
were actually living there at the relevant times. See
also Anderson Mill & Lumber Co. v. Clements, 101
Fla. 523, 531, 134 So. 588, 592 (Fla. 1931) (“Actual
residence is an essential quality to support a homestead . .
. .”); Dep't of Revenue v. Pelsey, 779
So.2d 629, 632 (Fla. 1st DCA 2001) (Webster, J.) (citing
Drucker v. Rosenstein, 19 Fla. 191, 198 (1882))
(“[A]ctual occupancy is essential to a homestead claim.
Mere intent to make the property one's homestead in the
future is insufficient to entitle one to the
the critical date is February 29, 2016. At that date Mr.
Farhood had begun construction on a house but did not reside
there. The parties disagree on whether, at that date, Mr.
Farhood intended to live there in the future, but on Mr.
Clements's summary-judgment motion, this dispute must be
resolved in Mr. Farhood's favor. So for summary-judgment
purposes, the facts must be viewed this way: when the
judgment was recorded, Mr. Farhood had started but not
finished construction of a house on the lot, which he
intended to occupy permanently once the house was finished.
Mr. Farhood was not living there when Mr. Clements recorded
the judgment-in the words of Wilcox, it was not his
“actual residence”-the property ...