Non-resident foreign investors may claim Florida homestead exemption from property tax through their dependents

Florida Constitution provides appealing benefits to owners of Florida real estate under the so-called homestead exemptions. Generally, a foreigner without a green card or a United States citizenship will not qualify because the foreigner’s visa will expire at one point and the foreigner cannot establish the intent to permanently reside on the property. Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963).

However, a temporary visa holder, such as a foreign investor, may claim the homestead exemption from property tax through a dependent. Fla. Const. Article VII, §6(a). In Garcia v. Andonie, 101 So. 3d 339, 347 (Fla. 2012), the Florida Supreme Court held that if the resident children of a foreign non-resident reside on a Florida property owned by the non-resident, the property may qualify for the property tax exemption. The homestead exemption decreases the property’s taxable value by as much as $50,000.

Mr. and Mrs. Andonie, citizens of Honduras, owned a condominium in Key Biscane, Florida, where they resided with their three minor children. Unlike their parents, who held an investor visa (E-2) and could not remain in the United States indefinitely, the minor children were United States citizens. When the parents applied for a homestead property tax exemption, the property appraiser denied the exemption and argued that the parents needed to reside in the United States indefinitely to qualify for the exemption.

Under Florida Constitution, every person who (1) has the legal or equitable title to real property in Florida and (2) who maintains on the property the permanent residence of the owner, or the permanent residence of the owner’s dependent, is entitled to the ad valorem exemption. Fla. Const. Article VII, §6(a). However, the Florida statute that implemented the exemption added an extra requirement that the owner must reside on the property and make the property the permanent residence of the owner or the owner’s dependents. Fla. Stat. § 196.031(1)(a) (2011). The Court invalidated the extra requirement because it was unconstitutional.

The Andonies qualified for the exemption because their minor children permanently resided on the property. Unlike the citizen children, the parents would not have been able to show that the property was their permanent residence because their visa did not entitle them to stay in the United States indefinitely.

The Andonie decision is important because it extends the definition of a homestead. The homestead benefits do not end with saving money in property tax, but, importantly, cover also the right to prevent a forced sale of a property to satisfy a creditor. However, the two categories are not treated the same, and each case must be carefully analyzed. Feel free to reach out to our office to see if your property could qualify as a homestead.