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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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I live in rochester,ny but own 2 properties (Free and clear)

Customer Question

i live in rochester,ny but own 2 properties (Free and clear) in florida. one of the properties i use personally(i go down 8-10 times a year) and the other i rent out. last year i bought a business in rochester in which i signed a personal guarantee for 200k. Business is suffering and i fear that i will not be able to stay open. i also signed a 3 year lease with personal guarantee. How can i protect my florida properties if i default on the lease and loan.also if one ofthe fla condos becomes my main residence will that protect it from a judgement and if so what do i need to do.
Submitted: 2 years ago.
Category: Legal
Expert:  CalAttorney2 replied 2 years ago.
Dear Customer, thank you for using our service. I would like to assist you today. Responses may have a short delay for review and research.
As a general matter (our "starting point") your personal assets are going to be subject to collection by your creditors for the debts that you are a personal guarantor on.
Placing your properties into an LLC or a Corporation would not protect them from collections - your creditors would then simply assume collection of your shares in the Corp or interest in the LLC, and take ownership of the property(ies) in that way.
Moving to the second portion of the question, establishing a "homestead exemption" in Florida by making one of the properties your primary residence will protect that property from collection (Florida has a very generous homestead exemption - made somewhat famous/notorious by debtors such as OJ Simpson), you can find more information on the exemption from this Florida Bar article here: http://www.floridabar.org/tfb/TFBConsum.nsf/0a92a6dc28e76ae58525700a005d0d53/f1bc20015cfdb2e985257408005290ed!OpenDocument, but in summary, the Florida exemption covers your residence plus up to 1/2 an acre of land surrounding it. The Florida exemption does not place a dollar figure on the value of the property (so you can exempt a mansion or a shack).
See also: http://www.nolo.com/legal-encyclopedia/florida-bankruptcy-homestead-exemption.html
Unfortunately, you can only protect the property that you reside in using the "homestead exemption" - your creditor would still be able to pursue the other one.
If you plan on making a "strategic" purchase of another property (consolidating your real property into one), I would strongly encourage you to retain a Florida attorney prior to making any such property purchases. You will want to discuss your situation with an attorney and get a formal legal opinion regarding the matter as you do not want to have your transaction voided under a "fraudulent transfer" claim. There are proper ways to consolidate property and improper ones, you will want formal legal advice (outside the scope of a "Q&A" general legal information site such as this) prior to making any such decisions.
You can find local attorneys using the State Bar Association directory: , or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).