TAMPA — Several winters ago, passers-by caught an unusual sight in one South Tampa neighborhood — a tent pitched in the yard of a million-dollar house under construction.
L. Lowry Baldwin and his wife, Jennifer, camped out on the property, part of an effort to show it was their permanent residence and thus eligible for a homestead exemption even if their new house wasn’t finished. The Hillsborough County property appraiser’s office didn’t agree, and denied an exemption for 2015 that would have saved them tens of thousands of dollars in taxes over subsequent years.
The couple appealed, launching a legal battle that has been fought in circuit court and the Second District Court of Appeal. It has sent lawyers and judges to the dictionary, poring over the meanings of the words "permanent'' and "residence.''
Now, the Baldwins hope to take their case to the Florida Supreme Court in pursuit of a precedent-setting outcome that could help others who encounter unexpected delays in moving from one home to another.
“We are fighting more for principle than actual dollars,” Lowry Baldwin said. “We’ve spent far more on attorneys fees than we’re going to save in taxes.”
The Baldwins, whose name is on a well-known insurance agency, used to live in a house overlooking Tampa Bay in the Bel Mar Shores neighborhood north of Gandy Boulevard. In 2013, they sold their house for $3.475 million, paid $1.5 million for a smaller house two doors away and tore it down to build a new home. While it was under construction, they lived in a rented condo.
Floridians are entitled to up to $50,000 off the taxable value of their homes for purposes of determining property taxes. Annual increases in assessments are capped at 3 percent, and under the Save Our Homes amendment owners are allowed to transfer some of their tax cap savings from their previous home if they move. However, they must have “received a homestead exemption as of Jan. 1 of either of the 2 immediately preceding years,” the law says.
The Baldwins, having sold their house, did not claim an exemption in 2014 but expected to be in the new house by Jan. 1, 2015. That would have qualified them for a homestead exemption and some of the Save Our Homes benefits.
Then “we ran into some delays even though the contractor until the last minute denied it would be late," Jennifer Baldwin said.
Unable to physically occupy the house by Jan. 1, 2015, the couple pitched a tent in the yard and slept there two nights to show that the property was legally theirs. “We recreate a lot out of doors,” Lowry Baldwin said, so they were comfortable under the stars. As of that Jan. 1, the Baldwins’ drivers’ licenses and voter registration cards also showed the address of the property.
The couple moved into the house in June 2015. After obtaining a final certificate of occupancy the following January, they applied for a homestead exemption and the Save Our Homes benefits for the 2015 tax year. The appraiser’s office denied their application on the grounds that the property was not their homestead as of Jan. 1, 2015.
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The Baldwins petitioned the county’s Value Adjustment Board, which ruled in the appraiser’s favor. The couple then sued, contending that while they couldn’t physically occupy the house as of the required date, there had been a clear intent to use it as their permanent residence. The appraiser countered that to claim it as a homestead, they had to physically occupy it.
The Baldwins lost in circuit court and appealed. The appeals court judges first looked at the constitutional provisions on homestead exemption, which say in part that an owner who “maintains thereon their permanent residence ... shall be exempt from taxation” as specified by law.
The court then consulted Black’s Law Dictionary for a definition of “maintain." Black’s said it means to “continue in possession of ... and care for (property).''
American Heritage Dictionary agreed, adding that to maintain is "to keep in an existing state.''
Based on those and the definition of permanent — "not expected to change in status, condition or place’' — the court found that the Baldwins couldn’t possess or care for their permanent residence until it existed. And it didn’t exist until it was finished in July 2015. Because the couple had not established it as their homestead as of Jan. 1, 2015, they were not entitled to the exemption or the Save Our Homes benefits for the 2015 tax year, the judges said.
Rob Kelley, a Tampa attorney who represents the Baldwins, thinks the couple has a strong argument to make if Florida’s Supreme Court decides to hear the case.
“They were building a new house, they considered it their permanent residence and importantly, they didn’t own any other property in Florida that could have been a homestead,” he said. "This is a situation that could befall a lot of people who are in the process of a substantial remodeling. They could lose a fairly sizable portability as a result of a natural disaster or if a contractor does not finish in the two-year period.''
Another reason for the high court to get involved, Kelley adds, is that the law is not administered uniformly throughout Florida. "If the Baldwins had been in Dade County,'' he said, “they would have gotten the exemption” for 2015 and been entitled to the Save Our Homes portability.
After the Baldwins moved in, the appraiser’s office approved their application for a homestead exemption for 2016 and thereafter. The house is currently assessed at $2.15 million, and the couple paid $41,152 in property taxes this year. The loss of portability means that the Baldwins now pay about $5,200 a year more than they would have otherwise, Kelley estimated.
Robert Stern, a Tampa real estate lawyer not connected with the case, said he admires what he calls the Baldwins’ "creativity'' in trying to get all of the tax benefits they can.
“Tax portability is a very valuable tool and treat that can save a homestead owner a ton of taxes in perpetuity until they leave their house,” he said. “Even though our tax collector has a website that is intended to be helpful and walk you through homestead portability and annual caps, it can still be somewhat confusing and convoluted for a homeowner.”
Stern suggest that owners insert a penalty clause in the builder’s contract in case a custom home or major renovation isn’t finished in time to comply with the portability requirements.
A bill that would extend the time that owners have to apply for homestead exemption and portability has been introduced in the Florida Legislature. The Hillsborough appraiser’s office is supporting it although Will Shepherd, the general counsel, said he doesn’t expect any change in the requirement that a owner must be occupying a permanent residence on Jan. 1 of a given year.
"It’s a slippery slope,'' he said. "If it’s not Jan. 1, is it okay for it to be nine months, 10 months later? I think there’s a reason you have to be there on Jan. 1.''
Jennifer Baldwin said she still thinks she and her husband met the spirit of the law.
“That’s why we’re taking it as far as we have,” she said. “We’re not angry at anyone, we’re just trying to navigate the system and add some clarity in Hillsborough County on how they deliver the law.”