MEMORANDUM DECISION AND ORDER OVERRULING TRUSTEE’S OBJECTIONS TO CLAIMED EXEMPTIONS AND DENYING TRUSTEE’S MOTION TO COMPEL TURNOVER OF NON-EXEMPT PROPERTY
THIS MATTER came before the Court on September 25, 2000 upon the Trustee’s Objections to Claimed Exemptions and Motion to Compel Turnover of Non-Exempt Property. The Trustee objects to Debtor claiming the 1966 34' Hatteras boat on which he resides, as exempt hоmestead property under Florida Constitution Art. X, § 4(a)(1) and Florida Statute § 222.05. The Court, having reviewed the Motions, considered the applicable law and the arguments of counsel, and being otherwise fully advised in the premises, hereby enters the following Statement оf Facts and Conclusions of Law.
STATEMENT OF FACTS
F. John Mead (“Debtor”) filed a voluntary petition under Chapter 7 of the Bankruptcy Code on May 31, 2000, and the Court appointed Kenneth A. Welt (“Trustee”) to be the Chapter 7 Trustee. Debtor and his wife live full-time aboard Debtor’s 1966 34' Hatteras boat (the “Boat”) docked at Slip # 10, 12 Isle of Venice, Fort Laud-erdale, Florida. The Boat is titled and registered in Florida. Debtor rents dock-age space for his Boat on a month to month basis. The $450 rental fee includes water and pumpout facilities. Debtоr pays separately for utility services, including electricity, phone and cable TV, which are supplied by connections to the Boat from the dock. The Boat is a cabin cruiser with kitchen and bathroom facilities as well as separate living and slеeping areas. The Boat also has two inboard 330 horsepower engines that are currently inoperable, but that are capable of being made operable. The Boat is not used for transportation or recreation. Debtor’s ex-wifе has custody of Debtor’s two minor children. The children stay with Debtor aboard the Boat during alternate weekend visitations. Debtor receives his mail at Slip # 10, 12 Isle of Venice, Fort Lauderdale. Debtor’s Broward County Voter Registration, Florida Driver License, and 1999 Fedеral Income Tax Return reflect his address as Slip # 10, 12 Isle of Venice, Fort Lauder-dale. Debtor has no other residence.
Debtor scheduled the Boat on his chapter 7 petition as exempt homestead property valued at $15,000. Trustee filed a timely Objection to Claimed Exemptions and Motion to Compel Turnover of NonExempt Property. Trustee argues that the Boat does not qualify as an exempt homestead under Florida law. It is Trustee’s position that the Boat is ineligible for homestead exemрtion because it is capable of movement upon navigable waterways and open seas. The Trustee further argues that while the Boat may be Debtor’s residence, the Debtor may not claim the Boat as exempt homestead property because he does not own the land where the Boat is docked.
CONCLUSIONS OF LAW
The issue before the Court is whether the Boat qualifies as exempt homestead property pursuant to Article X, § 4 of the Florida Constitution and Florida Statute § 222.05. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 151, 157(a), and this is a core proceeding under 28 U.S.C. § 157(b)(2)(B).
The Bankruptcy Code allows an individual debtor to exempt from the bankruptcy estate property classified as exempt *83 under either federal or state law on the date the petition is filed. 11 U.S.C. 522(b)(2)(A). Florida has opted out of the federal scheme, thereby limiting Florida residents to the exemptions permitted under state law. Fla. Stat. § 222.20. The Florida homestead exemption is rooted in Article X, § 4(a) of the Florida Constitution:
There shall be exempt from forсed sale under process of any court, and no judgment, decree of execution' shall be a lien thereon ... the following property owned by a natural person:
(1) a homestead...
Art. X, § 4(a), Fla. Const.
Homestead protection is a constitutionally protected right in Florida. Floridа homestead protection is designed to “secure for the householder a home for himself and his family—regardless of his financial condition.”
In re Meola,
Florida Statutes chapter 222 implements Florida’s constitutional protection against forced sale of homestead property.
Meadow Groves Management, Inc., v. McKnight,
Any person owning and occupying any dwelling house, including a mobile home used as a residence ...' on land not his or her own which he or she may lawfully possess, by lease or othеrwise, and claiming such house ... as his or her homestead, shall be entitled to the exemption of such house ... from levy and sale as aforesaid. Fla. Stat. § 222.05
Applying section 222.05 to the facts at hand requires analysis of whether the Boat is a “dwelling house” within the meaning of the statute, and whether the Boat is “on land not his or her own which he or she may lawfully possess.” Id.
The 1977 amendment to section 222.05 extended homestead protection to
“any
dwelling house including a mobile home used as a residence.”
Id.
(emphasis added). By using the “including a mobile home” language, “the legislature obviously sought to extend the homestead protection not only to mobile ... homes but to other, perhaps unforeseeable, types of living quarters. Rather than attempt an enumeration of every possible dwelling which might fall within the ambit of a homestead, the legislature left the definition of ‘dwelling house’ open.”
In re Meola,
Florida’s Third District Court of Appeal held in
Miami Country Day School v. Bakst,
The owner in Miami Country Day School rented rather than owned the space where his houseboat was docked. Id. at 468-69. The Trustee’s contention that the Debtor must own the land where the Boat is docked in order for the Boat to qualify as exempt homestead property is not supported by the statute. Section 222.05 does not require land ownership for homestead exemption, in fact, § 222.05 clearly extends homestead protection to dwelling houses situated on leased property. The Court sees no distinctiоn between a mobile home occupying leased space in a mobile home park, and a boat occupying leased dock space in a marina or in another dockage situation.
“In Florida, a homestead is established when therе is ‘actual intent to live permanently in a place, coupled with actual use and occupancy.’ ”
Colwell v. Royal Int’l Trading Corp.,
This Court is aware of thе cases that hold that some boats and motor homes may qualify for homestead exemption while others may not. The cases extending homestead protection to non-traditional dwelling houses include
Miami Country Day School v. Bakst,
Other cases have deniеd homestead protection to non-traditional residences.
See In re Walter,
This Court is not convinced that the distinctions on which the above cases turn are meaningful. While the Boat was immobile on the date of the petition, the Court would reach the same result even if the Boat could.have been moved. A better test to determine homestead exemption is one based on function and use of the dwelling structure, rather than its size, design, utility hookups, or ability to be moved. Homestead protection should be extended to any dwelling house on land that the debtor may lawfully possess, if the debtor resided there on the petition date, and if the debtor had no other residence.
The Boat was Mr. Mead’s only residence on the date of his petition. The Boat is appropriately equipped to function as a dwelling house, and it is used as a dwelling house. The Boat is registered in Florida and permanently docked in Florida. It is immaterial how the utilities are connected to a boat or motor home, and whether or not a boat or motor home wаs designed for or capable of recreational travel. The relevant question is whether the boat or motor home is the debtor’s only residence on the petition date. Even if the Boat could be moved, the analysis would not change, the Boаt would still be Mr. Mead’s only home, and Mr. Mead would be entitled to his homestead exemption. To deny Mr. Mead protection against the forced sale of his home simply because his home has an engine, operable or not, would circumvent the purpose of both Florida’s homestead protection laws and the Bankruptcy Code’s fresh start.
Many people live on boats in Florida. Some boat dwellers chose to live aboard because it is a relatively inexpensive way to maintain a homе. People make their homes on houseboats, sailboats, fishing boats and cabin cruisers. To allow homestead exemption for houseboats but not for other boats that function as homes is arbitrary and unfair. “There is room for judicial discretion within the cоnfines of the Bankruptcy Code, Florida Statutes and Florida Constitution.”
In re Mangano,
CONCLUSION
Based upon the foregoing, this Court finds that the Boat qualifies as exempt homesteаd property as defined in Florida Statute § 222.05. The Boat is “a dwelling house” berthed at rented dock space that is “land not his own which he may lawfully possess.” Therefore the Trustee’s Objection to Claimed Exemption is Overruled and the Trustee’s Motion to Compel Turnоver of Non-Exempt Property is Denied.
ORDER
Accordingly, it hereby ORDERED and ADJUDGED that:
1. Trustee’s Objection to Claimed Exemptions is OVERRULED. The 34' Hatteras boat is exempt homestead property pursuant to Article X, § 4 of the Florida Constitution and Florida Statute § 222.05.
2. Trustee’s Motion to Compel Turnover of Non-Exempt Property is DENIED.
Notes
. Courts in other jurisdictions have applied appropriate state [aw and held that homestead exempt property could be claimed in a fishing boat used as a residence,
In re Ross,