[rikers1]

I am asking for advice for a friend. He owns a mobile home, but not the property it is on. He needs to protect it from a possible lien from a cc suit. I have been told different things but need to know how he would go about having the home protected from liens or sale. It is his full time home and he has owned it for the past 5 years.

[Gib]

It can only be considered real property if he owns the land too. How old is the mobile home?

[rikers1]

Originally Posted by Gib

It can only be considered real property if he owns the land too. How old is the mobile home?

over thirty years old.

Edited to add I have read where even boats have been protected under the homestead law as long as it is thier main home.

[jlynn]

Originally Posted by rikers1

over thirty years old.

Edited to add I have read where even boats have been protected under the homestead law as long as it is thier main home.

That is very true In Texas at least, maybe Enigma will know more.

[Gib]

From SunBiz.org:

There are some kinds of property the sheriff cannot levy on. The main kind of property the sheriff cannot seize is a person's home. A person's homestead is exempt from execution. The judgment debtor may also select personal property worth up to $1,000, and one motor vehicle worth up to $1,000, as exempt property. Only people have exemptions. If your judgment is against a corporation or a partnership, the sheriff can seize all of its property. Of course, the sheriff can only levy on property the judgment debtor truly owns - not property owned by somebody else, such as leased property.

[Gib]

From the Florida Bar site:

YOUR HOME

If you own the home you live in, your home is protected from all creditors except those holding a mortgage or lien on your residence. You can exempt or protect your home and up to one-half acre of land from any forced sale if you live in an incorporated area. This also applies to mobile homes. If you live in an unincorporated area, you can protect up to 160 acres as homestead property.

Under most circumstances, a lien cannot be placed on your home for a debt. However, creditors who loan you money to buy, improve, or repair your home may put a lien on your home.

To protect your home, an affidavit describing your home and claiming it as your homestead must be filed with the court. This is different from the homestead tax form you file with the county property appraiser every year.

[Hedwig]

If it's that old, it's probably almost fully depreciated. I don't know FL law, but in many states if you don't own the ground it's considered a motor vehicle. As such, the book value may be $1000 or less and it could be exempted that way. But you'd have to do some research on FL laws.

[Enigma]

Originally Posted by Hedwig

If it's that old, it's probably almost fully depreciated. I don't know FL law, but in many states if you don't own the ground it's considered a motor vehicle. As such, the book value may be $1000 or less and it could be exempted that way. But you'd have to do some research on FL laws.

Deprecation does not apply - except in the case of taxes. The mobile has "book" value.

There is a Florida Statute (222.05) which discusses what may constitute a dwelling for homestead pruposes. Pursuant to the Statute the term dwelling includes a mobile home.

Only one Florida case has dealt directly with this issue in the bankruptcy context. Other court cases have held that a houseboat used as a primary residence can be a dwelling house and a principal residence because a houseboat is similar to a mobile home.

The applicable cases are In re Mangano, 158 B.R. 532, and Miami Country Day School v. Bakst, 641 So. 2d 467.

222.05 Setting apart leasehold.--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.

The mobile home cannot be levied, ie force sale, but a lien can be placed against it or any other homestead for that matter. Once the property is sold the proceeds can be attached and used to satisfy the debt.

[Enigma]

222.01 Designation of homestead by owner before levy.--

(1) Whenever any natural person residing in this state desires to avail himself or herself of the benefit of the provisions of the constitution and laws exempting property as a homestead from forced sale under any process of law, he or she may make a statement, in writing, containing a description of the real property, mobile home, or modular home claimed to be exempt and declaring that the real property, mobile home, or modular home is the homestead of the party in whose behalf such claim is being made. Such statement shall be signed by the person making it and shall be recorded in the circuit court.

(2) When a certified copy of a judgment has been filed in the public records of a county pursuant to chapter 55, a person who is entitled to the benefit of the provisions of the State Constitution exempting real property as homestead and who has a contract to sell or a commitment from a lender for a mortgage on the homestead may file a notice of homestead in the public records of the county in which the homestead property is located in substantially the following form:

NOTICE OF HOMESTEAD

To: (Name and address of judgment creditor as shown on recorded judgment and name and address of any other person shown in the recorded judgment to receive a copy of the Notice of Homestead).

You are notified that the undersigned claims as homestead exempt from levy and execution under Section 4, Article X of the State Constitution, the following described property:


(Legal description)

The undersigned certifies, under oath, that he or she has applied for and received the homestead tax exemption as to the above-described property, that _____ is the tax identification parcel number of this property, and that the undersigned has resided on this property continuously and uninterruptedly from (date) to the date of this Notice of Homestead. Further, the undersigned will either convey or mortgage the above-described property pursuant to the following:

(Describe the contract of sale or loan commitment by date, names of parties, date of anticipated closing, and amount. The name, address, and telephone number of the person conducting the anticipated closing must be set forth.)

The undersigned also certifies, under oath, that the judgment lien filed by you on (date) and recorded in Official Records Book _____, Page _____, of the Public Records of __________ County, Florida, does not constitute a valid lien on the described property.

YOU ARE FURTHER NOTIFIED, PURSUANT TO SECTION 222.01 ET SEQ., FLORIDA STATUTES, THAT WITHIN 45 DAYS AFTER THE MAILING OF THIS NOTICE YOU MUST FILE AN ACTION IN THE CIRCUIT COURT OF __________ COUNTY, FLORIDA, FOR A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONAL HOMESTEAD STATUS OF THE SUBJECT PROPERTY OR TO FORECLOSE YOUR JUDGMENT LIEN ON THE PROPERTY AND RECORD A LIS PENDENS IN THE PUBLIC RECORDS OF THE COUNTY WHERE THE HOMESTEAD IS LOCATED. YOUR FAILURE TO SO ACT WILL RESULT IN ANY BUYER OR LENDER, OR HIS OR HER SUCCESSORS AND ASSIGNS, UNDER THE ABOVE-DESCRIBED CONTRACT OF SALE OR LOAN COMMITMENT TO TAKE FREE AND CLEAR OF ANY JUDGMENT LIEN YOU MAY HAVE ON THE PROPERTY.

This _____ day of _______________, 2_____.


______________________________

(Signature of Owner)


______________________________

(Printed Name of Owner)


______________________________

(Owner's Address)

Sworn to and subscribed before me by ______________________________ who is personally known to me or produced ______________________________ as identification, this _____ day of _______________, 2_____.



______________________________

Notary Public

(3) The clerk shall mail a copy of the notice of homestead to the judgment lienor, by certified mail, return receipt requested, at the address shown in the most recent recorded judgment or accompanying affidavit, and to any other person designated in the most recent recorded judgment or accompanying affidavit to receive the notice of homestead, and shall certify to such service on the face of such notice and record the notice. Notwithstanding the use of certified mail, return receipt requested, service shall be deemed complete upon mailing.

(4) A lien pursuant to chapter 55 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional homestead status of the property described in the notice of homestead or to file an action to foreclose the judgment lien, together with the filing of a lis pendens in the public records of the county in which the homestead is located, within 45 days after service of such notice shall be deemed as not attaching to the property by virtue of its status as homestead property as to the interest of any buyer or lender, or his or her successors or assigns, who takes under the contract of sale or loan commitment described above within 180 days after the filing in the public records of the notice of homestead. This subsection shall not act to prohibit a lien from attaching to the real property described in the notice of homestead at such time as the property loses its homestead status.

(5) As provided in s. 4, Art. X of the State Constitution, this subsection shall not apply to:

(a) Liens and judgments for the payment of taxes and assessments on real property.

(b) Liens and judgments for obligations contracted for the purchase of real property.

(c) Liens and judgments for labor, services, or materials furnished to repair or improve real property.

(d) Liens and judgments for other obligations contracted for house, field, or other labor performed on real property.

[Enigma]

222.02 Designation of homestead after levy.--Whenever a levy is made upon the lands, tenements, mobile home, or modular home of such person whose homestead has not been set apart and selected, such person, or the person's agent or attorney, may in writing notify the officer making such levy, by notice under oath made before any officer of this state duly authorized to administer oaths, at any time before the day appointed for the sale thereof, of what such person regards as his or her homestead, with a description thereof; and the remainder only shall be subject to sale under such levy.

[Enigma]

222.09 Injunction to prevent sale.--The circuit courts have equity jurisdiction to enjoin the sale of all property, real and personal, that is exempt from forced sale.

[Hedwig]

I knew you would know what he could exempt. Good work, Enigma.

[Enigma]

Originally Posted by Hedwig

I knew you would know what he could exempt. Good work, Enigma.

Thank you.

[Enigma]

If he ever wants to sell, convert the proceeds to a not-attachable asset or do a 1031 exchange.

[roybean]

Wow, Enigma!
I guess you got that straight.

[rikers1]

Thanks Enigma, I am still a little lost. Is there some form that he files with the clerks office, or is it just a notarized statement? Would you suggest he get a lawyer to file this? He really can not afford an attorney, he is on Social Security and this is his only asset.

They have not filed suit yet but are threatening.

[Enigma]

Originally Posted by rikers1

Thanks Enigma, I am still a little lost. Is there some form that he files with the clerks office, or is it just a notarized statement? Would you suggest he get a lawyer to file this? He really can not afford an attorney, he is on Social Security and this is his only asset.

They have not filed suit yet but are threatening.

If there is no levy, file it with the clerk.

See inst#3:

3) The clerk shall mail a copy of the notice of homestead to the judgment lienor, by certified mail, return receipt requested, at the address shown in the most recent recorded judgment or accompanying affidavit, and to any other person designated in the most recent recorded judgment or accompanying affidavit to receive the notice of homestead, and shall certify to such service on the face of such notice and record the notice. Notwithstanding the use of certified mail, return receipt requested, service shall be deemed complete upon mailing.

Once it's filed with the clerk, just to CYA, I'd send a certified copy , CMRRR to the judgment creditor.