In Re Rodriguez , 1985 Bankr. LEXIS 4936 ( 1985 )

55 B.R. 519 (1985)

In re Juan & Martha RODRIGUEZ, Debtors.

Bankruptcy No. 85-01836-BKC-TCB.

United States Bankruptcy Court, S.D. Florida.

November 20, 1985.

Ashley L. Diener, Hialeah, Fla., for debtors.

Steven H. Friedman, Miami, Fla., for trustee.

ORDER ON EXEMPTION

THOMAS C. BRITTON, Bankruptcy Judge.

The trustee's objection (C.P. No. 7) to the debtors' claimed exemption of certain improved real property valued at $80,000 was heard on November 14.

The exemption was claimed as a homestead under the Florida Constitution. The objection is that only the residence of the debtors is entitled to exemption and not the contiguous real property which is leased to and occupied by a third party.

A portion of the free-standing one-story building owned by the debtors in the city of Hialeah has been used as a residence by the debtors for six years. On the date of bankruptcy, a portion of the building was rented to a tenant for a monthly rental of $325. An internal wall separates the two portions of the building. Each portion has a separate entrance.

The Florida Constitution exempts from the claims of creditors a homestead within a municipality:

"to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family." (emphasis supplied).

The foregoing provision was adopted in 1968. The earlier Constitution of 1885 had exempted the "residence and business house of the owner." Court decisions under the former Constitution had allowed exemption even though a portion of the property was leased to and occupied by a third party. There are no reported decisions under the present Constitution.

I agree with the trustee that the exemption in this instance must be limited to that portion of the property occupied by the debtors as their residence on the date of bankruptcy and cannot include that portion of the property which was rented to and occupied by a third party. There is no evidence before me which furnishes a predicate for a finding as to what the precise extent or value of the exempt and nonexempt portions of this real property are. If the parties are unable to submit an agreed order reflecting such a determination, the trustee is instructed to renotice this matter for determination by this court.