Eric P. Feichthaler

Dear Mr. Feichthaler:

In March, I was temporarily assigned to Austin for six months for my job. During that time, I rented the property to a tenant that had a similarly-timed assignment in Lee County.

When I returned last week, I had a letter from the Lee County Property Appraiser asking me to complete an affidavit regarding the rental. The letter also said I could lose my homestead exemption. What should I do? I am hoping the issue will just go away.

–Carl B.

Dear Carl:

The protections Florida homestead offer are numerous: Protection from creditors, protection for spouses and minor children are two of them. The most important to many, of course, is the property tax benefit both annually, and through the Save Our Homes cap on increases in taxable value. Claiming, and keeping, homestead on property should be on the top of every homeowner’s agenda.

Broadly speaking, you will lose homestead if you claim it somewhere else, or otherwise “abandon” your Florida homestead. Florida Statutes 196.061 directly addresses your situation. It states that, if you are living in the home Jan. 1, and rent it out during the year, you will not lose your homestead IF you do not rent more than 30 days per calendar year for two consecutive years.

Although different agencies may interpret this statute differently, your facts indicate you have only rented the property during one year for more than 30 days, you lived there on Jan. 1, and you always intended to return. With those facts, the property appraiser should continue to allow for the property tax exemptions. However, if you rented your home for more than 30 days next year (or last year, for that matter), they would be fully justified in removing the exemption.

The affidavit is provided for the appraiser to determine the facts. Again, with your facts, you should continue to benefit from the homestead exemption.

One note to consider — when you rent your property for the short term, you are require to collect and pay sales tax and local tourist development tax. Short-term rentals are considered those six months or less. This is another issue many landlords overlook. However, from my experience, the tax collector does not overlook this. Hopefully, your rental was over six months and only this year, in which case all benefits should continue, and no sales tax will be owed.

Eric P. Feichthaler has lived in Cape Coral for over 35 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Museum of History, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator. He can be reached at eric@capecoralattorney.com, or 239-542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.