You Can’t Touch This: Florida's Homestead Tax Exemption

by Damon Pichoff
In Garcia v. Andonie, No. SC11-553 (October 4, 2012), the Florida Supreme Court invalidated a legislative measure to restrict the availability of the Homestead Tax Exemption. David and Ana Andonie are citizens of Honduras living in Florida on temporary visas. The couple have three kids who are citizens of the United States and Florida residents. In 2006, the couple applied for and was granted a homestead tax exemption for their condo. The Miami-Dade property appraiser opposed the exemption, taking the fight up all the way to the Florida Supreme Court.
In the 1934 version of the Florida Constitution, the homestead tax exemption required the owner personally to permanently reside on the property. In 1968, however, the Constitution was substantially altered and this requirement was removed. The Florida Constitution now provides that:
“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… upon establishment of right thereto in the manner prescribed by law.” Article VII, Sec. 6(a).
These constitutional requirements are straightforward:
(1)Own real estate;
(2)Maintain permanent residence there of the owner or of a dependent of the owner.
The Andonies met these requirements. The parents/owners submitted an affidavit stating it is their intent as parents that their minor kids remain permanently at the condo and in the United States. The property appraiser, relying on Section 196.031(1), Florida Statutes (2006), sought to invalidate their exemption. This statute required owners themselves to permanently reside at the condo. The Andoine parents could not, as a matter of law, permanently reside there because of their temporary visas. See Juarrero v. McNayr, 157 So. 2d 79, 81 (Fla. 1963).
The Third District Court of Appeals declared Section 196.031(1) invalid and unenforceable. The Supreme Court agreed with this ruling and held the statute wrongfully imposed substantive requirements for entitlement that were inconsistent with the Constitution. Although the Legislature may enact laws regulating “the manner” of establishing the right to the constitutional homestead tax exemption, it cannot substantively alter or materially limit the class of individuals entitled to the exemption. See Sparkman v. State, 58 So. 2d 431, 432 (Fla. 1952).
The Florida Supreme Court has yet again told the Legislature that with respect to Florida’s homestead exemption, “You can’t touch this!”