I own an apartment in Florida free and clear, which I plan to return to when I retire in three years, but right now it is rented out. It is worth about $50,000. I am renting a little apartment near White Plains for the time being. I am thinking of filing bankruptcy. Am I correct that if I file chapter 7 bankruptcy, I can get a homestead exemption for the Florida property because it was my permanent home for many years and I plan to return to it in the future. Thanks for reading this.
Family Law Attorney
No, in either state. Since you are not living there currently, it is not a "homestead" under any state's definition. In fact, if you're claiming it as a "homestead" for tax purposes in Florida, you're probably going to have a tax issue since it is misclassified. The fact that you're thinking of moving there in the future is irrelevant. It is a rental property, and it will be treated as such. Both the income stream and the property itself will be assets. You can try to claim it as a homestead, but your trustee will object to that and win.
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5 lawyers agree
As Michael C. points out, to get an homestead exemption, the property must be your primary residence.
Based on what you describe, it certainly doesn't sound like it is your primary residence right now. Some states homestead laws are worded to allow the "intent to use has primary residence", but even in those states, if you are 3 years out from moving to the property, that argument is thin. Lastly, the fact that you are renting it now works against you.
However, don't let that deter you, you obviously have a debt problem. So speak to a bankruptcy attorney to find out what options are realistic for your circumstances.
4 lawyers agree