On October 4, 2012, the Florida Supreme Court issued an opinion holding that non-citizens, lawfully residing in the United States, are entitled to a homestead tax exemption on a residence they occupy with their dependent minor children who are U.S. citizens.  Garcia vs. Andonie, Case No. SC11-554, 37 Fla. L. Weekly S613 (Fla. Oct. 4, 2012). Florida’s homestead tax exemption is provided for in article VII, section 6(a) of the Florida Constitution.  Section 196.031, Florida Statutes, purports to implement the constitutional provision.  However, the Third District held, and the Supreme Court affirmed, that the implementing statute impermissibly narrowed the class of persons who could claim the exemption by requiring that the owner of the property “reside thereon” and make the residence his/her permanent residence or the permanent resident of a dependent.  As the Supreme Court pointed out, the Florida Constitution does not include the “reside thereon” requirement, and states only that the property be maintained as the permanent residence of the owner or a dependent of the owner. 

The Court noted that, while the Legislature is permitted to enact laws regulating the manner of establishing the right to the constitutional homestead tax exception, “it cannot substantively alter or materially limit the class of individuals entitled to the exemption under the plain language of the constitution.”  Id. (citing Sparkman v. State, 58 So. 2d 431 (Fla. 1952)).

The Court concluded that the legal elements required to demonstrate entitlement to the constitutional homestead exemption require a property owner to demonstrate that the owner is maintaining on Florida real property either (1) the permanent residence of the owner or (2) the permanent residence of another legally or naturally dependent on the owner.  The requirement of section 196.031(1) that required property owners to demonstrate that they reside on the property was declared invalid an unenforceable. 

Next, the Court discussed what constitutes a “permanent residence” and cited section 196.012, Florida Statutes, which defines the term for ad valorem taxation purposes.  “‘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 ahs the intention of returning. . . .”  Id.  The Court noted that the statutory definition was consistent with the constitutional context from which it emerged. 

With respect to non-citizens, the Court has long held that those who do not posses the legal right to permanently reside in Florida cannot, as a matter of law, establish their permanent residence on Florida real property.  Id.  (citing Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963)).  In the instant case, the appellees were Florida property owners who were citizens of Honduras residing in the U.S. on a temporary visa.  They had three minor children, all of whom were U.S. citizens and Florida residents.  Under the authority of article VII, section 6(a) of the Florida Constitution, the Court held that the appellees were entitled to the exemption.  Where non-citizens are residing with dependent children, who are U.S. citizens, in a home they intent to be the permanent residence of those dependent, then the homestead exemption applies.