Blogs from October, 2012


As a Florida probate attorney, one issue that often arises is the treatment of homestead real property.  Under Florida law, there are three contexts in which the homestead has significance: (a) taxation, (b) exemption from forced sale, and (c) descent and devise.  Florida case law is plentiful as it pertains to homestead real property, especially since a 1984 change in the Florida Constitution which broadened the constitutional definition of the term “homestead.”

While Florida homestead law can be found in Article X, Section 4 of the Florida Constitution, many decisions of Florida appellate court must be considered when seeking the Constitutional protections.  One also must determine what context they are seeking to invoke the Constitutional protection (exemption from a forced sale or devise and descent), as the District Courts of Appeal have treated certain contexts differently.  For instance, while a condominium may be considered a homestead, a cooperative apartment may not, depending on the context.  The owner of a cooperative apartment has a mere stock interest in the cooperative, as opposed to an interest in the realty, and thus the interest is not subject to homestead laws as to descent.  In re Estate of Wartels, 357 So. 2d 708 (Fla. 1978).  However, a co-op constitutes homestead property for purposes of exemption from forced sale by creditors.  Southern Walls v, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002).

Recently the Second District Court of Appeal was presented with the question of whether a condominium subject to a long-term leasehold may qualify as a homestead to be protected from forced sale to pay the creditors of the deceased owner.  In Geraci v. Sunstar EMS, 2012 WL 2401696, the property at issue was a condominium subject to a one hundred (100) year lease agreement from 1976, in which the decedent owned the remaining term on the lease.  Upon her death, creditors filed claims against the decedent’s estate and the trial court determined the condominium did not qualify as a homestead because it was a leasehold and not a fee simple interest inland.  As such, it could be subject to a forced sale to pay creditors of the decedent owner’s estate.  However, the Personal Representative of the decedent’s estate appealed the ruling of the trial court, and the appellate court found that where a lessee’s interest in a leasehold estate includes the right to use and occupy the premises for a long time and the lessee has made the residence his principal and exclusive residence, such an interest is entitled to Florida’s homestead exemption from forced sale.  This allowed the estate to be afforded the protection of homestead status under Article X, Section 4 of the Florida Constitution for the condominium, although it was not owned if fee simply, to be exempt from forced sale to satisfy creditor claims.

Geraci demonstrates the evolving law as it pertains to homestead property in Florida, and the need for an estate lawyer to help determine whether the Florida Constitutional protections are appropriate.  If you have a question regarding real property owned by a Decedent, and are seeking to preserve an inheritance right or enforce and potentially collect on a creditor claim through a forced sale,  call to speak with an attorney at the Law Offices of Adrian Philip Thomas, P.A. for a no-obligation consultation at (954) 764-7273.


Most Recent Posts from October, 2012