Residency of Dependent Children in Condo allows Foreign Parents to Claim Florida Homestead Tax Exemption on their Condo
A married couple, both citizens of Honduras, lawfully residing in the United States on temporary visas, owned a condominium in Miami, Florida, which they occupied with their three children, ages 7, 12, and 14, each of whom were United States citizens. The couple claimed the Florida homestead exemption from taxation on the first $25,000 of assessed value (Article VII, Section 6(a) of the Florida Constitution) but the Miami-Dade County Property Appraiser denied the application. On appeal, the Florida Third District Court of Appeal, in De La Mora v Andonie, Case No. 3D09-3427, filed December 10, 2010 (available at www.3dca.org) determined that the couple was entitled to the exemption, even though they were legally incapable of qualifying as permanent residents of Miami, because the children had a permanent residence at the property and were legally or naturally dependent on their parents, as owners of the condominium.
The Court quoted Article VII, Section 6(a) of the Florida Constitution, which states in part:
“(6)(a) Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of twenty-five thousand dollars...”
As to the requirement that the homestead property be a “permanent residence” of the owner or a dependent [such as the children] the Court quoted a legislative definition, which states:
"Permanent residence" means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning.
The father submitted an affidavit stating that the children are U.S. citizens, they have the right as citizens to permanently remain in the U.S., that they are wholly dependent on the parents for support, and that they permanently reside in the condominium.
The Court rejected the Property Appraiser’s argument that the children’s domicile depends on that of the parents, who do not have a legal right to permanently reside in Miami, stating “these Honduran parents have adequately declared that whatever may become of their ability to remain in the United States in the future, they fully plan and intend for their U.S.-born children to ‘permanently resid[e]’ in the United States.” The Court noted that both the parents and children were present in Miami on the date when the homestead exemption became effective under their application, . The Court also rejected an argument by the Property Appraiser that the person who is the permanent resident must also be the owner, which argument was based on the text of legislation implementing Article VII, Section 6(a). Basically, the Court determined that there is no such a requirement under the constitutional provision in its current form.
The foregoing discussion is in summary form, and does not, and is not intended to, discuss all of the statutes, regulations and court opinions which affect matters included in the article. It is not intended as legal advice.