sunstar ems, an imregisteretl fictitious medical …...sunstar ems, an imregisteretl fictitious name...
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wally Fikd 07/] I/2013 l2:2]:29 Pli ET
RECE]VED. 7/] I/201.; ]] 2; i;. I homas D. Ela]L Clerk. Supremc Court
SCl2-2073
SUPR EMF COL-RT OF FLORIDA
SUNSTAR EMS, an imregisteretl fictitious
Name of Pinellas County Emergency
Medical Services Authority,
and AGENCY FOR IIEAl2TilCARF,
A DM INIST RATION
Petitioner,
vs.
LAWRENCE GERACl, JR,
as Personal Representative
of the Estate of Mary 1 Geraci, Deceased,
Respondent.
ONREVIEWFROMSECONDDlSTRKT(1H/R7'UFAPPEAL
BRIEF OF AMICUS CURIAEON TOP OF THE WORI.D CONDOMINillM ASSOCIATION, INC.
l(ACHEL M. WAGONFR
Florida Bar No. 0736066
7243 Brvan Dairv Road1.argo_ F lorida 33777
Telephone: (727) 545-8 l14
Riesimile: (727) 545-8227
TABLEOFCONTENTS
PAGE
TABLE OF AUTHORITIES.............................................................................. 1 - vii
STATEMENT OF IDENTITY AND INTEREST OF AMICUS............................ 1
SUMMARY OF ARGUMENT................................................................................ 2
ARGUMENT ...................................................................................................... 3 - 9
I. A CONDOMINIUM ON LEASEHOLD PROPERTYQUALIFIES FOR THE HOMESTEAD PROTECTIONFROM FORCED SALE OF ARTICLE X, SECTION 4,FLORIDA CONSTITUTION AS IT IS (I) A POSSESSORYINTEREST IN (II) REAL PROPERTY ....................................................... 3
A. A LEASEHOLD CONDOMINIUM IS REALPROPERTY ....................................................................................... 3 - 6
B. ANY POSSESSORY INTEREST IN REAL PROPERTYMEETS THE QUALIFICATION FOR HOMESTEADSTATUS FOR PURPOSES OF ARTICLE X,SECTION 4(A) .................................................................................. 6 - 8
C. THE HOMESTEAD PROTECTION FROM FORCEDSALE OF ARTICLE X, SECTION 4, FLORIDACONSTITUTION, ON A CONDOMINIUM LEASEHOLDPROPERTY DOES NOT AFFORD PROTECTION TOOTHER FORMS OF LEASEHOLD PROPERTY ........................... 8 - 9
II. A HOMESTEAD EXEMPTION ON LEASEHOLDPROPERTY OF A CONDOMINIUM ADVANCES THEPUBLIC POLICY OF ARTICLE X, SECTION 4,FLORIDA CONSTITUTION .............................................................. 10 - 14
CONCLUSION ..................................................................................................... 14
1
TABLE OF CONTENTS continued
CERTIFICATE OF SERVICE............................................................................... 15
CERTIFICATE OF COMPLIANCE ..................................................................... 15
11
TABLE OF AUTHORITIES
CASES PAGE
Aronson v. Aronson81 So. 3d 515 (Fla. 3d DCA 2012) ................................................................... 7
Barlow v. Barlow156 Fla. 458 (Fla. 1945) ........................................................................................ 11
Bessemer Properties v. Gamble27 So.2d 832 (Fla. 1946) ............................................................................. 7, 13
Bigelow v. Dunphe197 So. 328 (Fla. 1940) ................................................................................... 10
Boren v. Suntrust Bank46 So.3d 1156 (Fla. 2d DCA 2010) ................................................................ 10
Braswell v. Braswell890 So.2d 379 (Fla. 3d DCA 2004) .................................................................. 5
Butterworth v. Caggiano605 So.2d 56 (Fla. 1992) ................................................................................. 11
Carson v. Miller370 So.2d 10 (Fla. 1979) ................................................................................... 6
City of Jacksonville v. Continental Can Co.113 Fla. 168 (1933) ........................................................................................... 6
Collins v. Collins150 Fla. 374 (1942) ......................................................................................... 10
Culter v. Cutler994 So. 2d 341 (Fla. 3d DCA 2008) ................................................................. 6
Department ofLegal Affairs v. Sanford-Orlando Kennel Club, Inc.434 So.2d 879 (Fla. 1983) ................................................................................. 6
111
TABLE OF AUTHORITIES continued
CASES PAGE
Gray v. Bryant125 So. 2d 846 (Fla. 1960) ............................................................................. 3-4
Heiman v. Capital Bank438 So. 2d 932 (Fla. 3d DCA 1983) ................................................................. 7
Holden v. Gardner420 So.2d 1082 (Fla. 1982) ............................................................................... 4
Hill v. First National Bank of Marianna73 Fla. 1092 (Fla. 1917) ................................................................................ 4, 7
In re Alexander346 B.R. 546 (Bankr. M.D. Fla. 2006) ............................................................. 6
In re Blecker9 B.R. 31 (Bankr. S.D. Fla. 1980) .................................................................... 5
In re Bubnak176 B.R. 601 (Bankr. M.D. Fla. 1994) ............................................................. 8
In re Dean177 B.R. 727 (Bankr. S.D. Fla. 1995) ...................................... 5, 10, 11, 12, 13
In re Ehnle124 B.R. 361 (Bankr. M.D. Fla. 1991) ........................................................... 10
In re Lisowski395 B.R. 771 (Bankr. M.D. Fla. 2008) ............................................................. 7
In re Mangano158 B.R. 532 (Bankr.S.D.Fla.1993) ............................................................... 12
In re McAtee154 B.R. 346 (Bankr.N.D.Fla.1993) ......................................................... 10, 12
lv
TABLE OF AUTHORITIES continued
CASES PAGE
In re Mead255 B.R. 80 (Bankr. S.D. Fla. 2000) ................................................... 7, 10, 12
In re Meola158 B.R. 881 (Bankr. S.D. Fla. 1993) .............................................................. 8
In re Wartels' Estate357 So. 2d 708 (Fla. 1978) ................................................................................ 4
In re Wilbur217 B.R. 314 (Bankr. M.D. Fla. 1998) ............................................................. 5
Miami Country Day School v. Bakst641 So. 2d 467 (Fla. 3d DCA 1994) ..................................................... 7, 10, 12
Milton v. Milton63 Fla. 533 (Fla. 1912) .................................................................................. 4, 7
Orange Brevard Plumbing & Heating v. La Croix137 So. 3d 201 (Fla. 1962) .............................................................................. 13
Pasco v. Harley73 Fla. 819 (1917) ............................................................................................. 4
Phillips v. Hirshon958 So. 2d 425 (Fla. 3d DCA 2007) ............................................................... 11
Public Health Trust of Dade County v. Lopez531 So. 2d 946 (Fla. 1988) .............................................................................. 10
Seagate Condominium Association, Inc. v. Duffy330 So. 2d 484 (Fla. 4th DCA 1976) ................................................................ 9
Smith v. Unkefer515 So. 2d 757 (Fla. 2d DCA 1987) ................................................................. 7
v
TABLE OF AUTHORITIES continued
CASES PAGE
Southern Walls, Inc. v. Stilwell Corp.810 So. 2d 566 (Fla. 5th DCA 2002) ................................................ 6, 7, 10, 11
St. Petersburg Bank and Trust Co. v. Hamm414 So.2d 1071 (Fla. 1982) ............................................................................... 6
State ex rel. West v. Grav74 So.2d 114 (Fla. 1954) ................................................................................... 6
Sterling Village Condominium, Inc. v. Breitenbach
251 So. 2d 685 (Fla. 4th DCA 1971) .................................................... 4, 11, 13
Thalheimer v. Tischler55 Fla. 796 (Fla. 1908) ...................................................................................... 5
Van Pelt v. Hilliard75 Fla. 792 (Fla. 1918) ...................................................................................... 6
Wilson v. Crews
160 Fla. 169 (Fla. 1948) .................................................................................... 6
Woodside Vill. Condo. Ass'n, Inc. v. Jahren
806 So. 2d 452 (Fla. 2002) ................................................................................ 8
FLORIDA CONSTITUTIONArticle X, Section 4 ......................................................................... 1, 2, 3, 4, 6, 8, 9
v1
TABLE OF AUTHORITIES continued
CASES PAGE
FLORIDA STATUTES
Chapter 718, Florida Statutes (2012) .......................................................... 1, 2, 8, 9Fla. Stat. § 718.102 (2012) ...................................................................................... 9Fla. Stat. § 718.104 .................................................................................................. 5Fla. Stat. § 718.106(1) (2012) ..................................................................... 2, 5, 6, 9Fla. Stat. § 718.401(1) (2012) .................................................................................. 9
ADVISORY OPINIONS
Advisory Opinion to Governor-1996 Amendment 5 (Everglades)706 So. 2d 278 (Fla. 1997) ................................................................................ 4
V11
STATEMENT OF IDENTITYAND INTEREST OF AMICUS CURIAE
On Top of the World Condominium Association, Inc. (the "Association") is
a condominium association organized pursuant to Chapter 718, Florida Statutes.
The Association is composed of 4,970 condominium owners. Currently, 4,321 of
the condominium units owned by Association members are subject to a 100-year
lease.
The Association is interested in this case because many of its members have
claimed - or will claim - a homestead exemption pursuant to Article X of the
Florida Constitution on condominium units subject to a 100-year lease. The
District Court ruled that a 100-year leasehold interest qualifies for the homestead
exemption under Article X, Section 4(a) of the Florida Constitution, and such
exemption may be passed to heirs under Article X, Section 4(b). As a result of this
ruling, the vast majority of Association members may now obtain a homestead
exemption on units that are subject to a 100-year lease. The decision of this Court
to uphold or reverse the District Court will therefore have a substantial effect on
the Association and its members. Additionally, the issue of descent and devise is
of particular interest as this is a SS+ community and many members have
purchased the property with the intent to devise it to their heirs.
1
SUMMARY OF ARGUMENT
A condominium on leasehold property qualifies for the homestead protection
from forced sale of Article X, Section 4 of the Florida Constitution and such
protection inures to the benefit of the owner's heirs. In order to qualify for the
homestead exemption, a person must have an interest in real property. Section
718.106(1), Florida Statutes, states that condominiums on leasehold property are
considered interests in real property. Section 718.106(1) applies only to
condominiums because condominiums are strictly creatures of statute and unit
owners look to Chapter 718 for their rights and obligations. This is consistent with
the public policy underlying the homestead exemption.
Since their creation, the homestead protections have existed to promote the
stability and welfare of the state by encouraging property ownership. The
homestead protections preserve a home where a family can live beyond the reach
of forceful dispossession by creditors. The law does not discriminate between a
mansion and a shack - both receive homestead protections. In fact, homestead
protections have been recognized in many non-traditional settings such as
houseboats, mobile homes, and cabin cruisers. Leasehold condominiums should
receive the same treatment under the law, which is consistent with the broad and
liberal interpretation of the homestead exemption.
ARGUMENT
L A CONDOMINIUM ON LEASEHOLD PROPERTYQUALIFIES FOR THE HOMESTEAD PROTECTIONFROM FORCED SALE OF ARTICLE X, SECTION 4,FLORIDA CONSTITUTION AS IT IS (I) A POSSESSORYINTEREST IN (II) REAL PROPERTY.
A. A Leasehold condominium is real property.
Article X, Section 4 of the Florida Constitution provides:
(a) There shall be exempt from forced sale under processof any court, and no judgment, decree or execution shallbe a lien thereon, except for the payment of taxes andassessments thereon, obligations contracted for thepurchase, improvement or repair thereof, or obligationscontracted for house, field or other labor performed onthe realty, the following property owned by a naturalperson:(1) a homestead, if located outside a municipality, to theextent of one hundred sixty acres of contiguous land andimprovements thereon, which shall not be reducedwithout the owner's consent by reason of subsequentinclusion in a municipality; or if located within amunicipality, to the extent of one-half acre of contiguousland, upon which the exemption shall be limited to theresidence of the owner or the owner's family;(2) personal property to the value of one thousanddollars.(b) These exemptions shall inure to the surviving spouseor heirs of the owner.
Art. X, § 4, Fla. Const. (Emphasis Added).
The Florida Constitution does not define the type of ownership interest
required for homestead exemption. It is the duty of the legislature to fill in the
blanks for non-self-executing constitutional language. Gray v. Bryant, 125 So. 2d
3
846 (Fla. 1960); Advisory Opinion to Governor-1996 Amendment 5 (Everglades),
706 So. 2d 278 (Fla. 1997). Article X, Section 4 has been repeatedly construed to
niean that homestead must consist of an "interest in realty." In re Wartels' Estate,
357 So. 2d 708, 710 (Fla. 1978) (citing Pasco v. Harley, 73 Fla. 819 (1917); Hill v.
First National Bank, 73 Fla. 1092, 75 So. 614 (1917); Milton v. Milton, 63 Fla.
533, 58 So. 718 (1912)). Further, the Florida Supreme Court ruled that the
definition of homestead for the creditor's exemption in § 4(a)(1) defines homestead
for all of § 4, including the inurement of the creditor's exemption found in § 4(b),
and the devise of the homestead in § 4(c). Holden v. Gardiner, 420 So.2d 1082,
1085 (Fla. 1982).
The concept of condominiums was first put into law in 1804 in the
Napoleonic Code of France. Sterling Village Condominium, Inc. v. Breitenbach,
251 So. 2d 685, 688 (Fla. 4th DCA 1971) (citing 38 St. John's L. Rev. 3; 15 Am.
Jur. 2d, Condominiums, etc., § 3; and Coke on Littleton, quoted in 39 Yale L.J.
621). In Florida, the condominium form of ownership of real property began in
1963 when the Florida Legislature enacted Chapter 711.1 There are three distinct
parts that make up a condominium: (1) exclusive ownership of the single unit; (2)
joint ownership, as tenants in common with others of common areas, and (3)
IIn 1976, Chapter 711, Florida Statutes, was renumbered as Chapter 718, Floridastatutes.
4
agreement or scheme among owners for the management and administration of the
total condominium property. § 718.104, Fla. Stat. (2012).
Since 1868, the Florida Constitution has provided a homestead exemption
for an owner of real property, and condominiums have long been eligible for the
homestead exemption. Braswell v. Braswell, 890 So. 2d 379 (Fla. 3d DCA 2004);
In re Wilbur, 217 B.R. 314 (Bankr. M.D. Fla. 1998); In re Dean, 177 B.R. 727
(Bankr. S.D. Fla. 1995); In re Blecker, 9 B.R. 31 (Bankr. S.D. Fla. 1980). The
unique characteristic of this case is that it involves a condominium on property that
is subject to a long-term lease.
At common law, leasehold property was considered personal property, and
not real property. Thalheimer v. Tischler, 55 Fla. 796, 46 So. 514, 518 (Fla. 1908).
However, as it relates to condominiums, the Legislature has fulfilled its duty to
define the type of ownership that would be eligible for a homestead exemption in
regards to a leasehold estate. The common law has been changed by statute. §
718.106(1), Fla. Stat. (2012). Section 718.106(1) provides:
(a) Condominium parcel created by the declaration is aseparate parcel of real property, even though thecondominium is created on a leasehold." (Emphasisadded).
This unequivocal language chosen by the legislature has converted what was
under the common law personal property into an interest in realty. Therefore,
5
those unit owners who own a condominium created on a leasehold have an interest
in real property and may claim a homestead exemption.
Legislative intent controls the construction of statutes in Florida. That intent
is determined primarily from the language of the statute, which is given its plain
meaning. St. Petersburg Bank and Trust Co. v. Hamm, 414 So. 3d 1071, 1073
(Fla. 1982). The Court has constantly adhered to the plain meaning rule in
applying statutory and constitutional provisions. Department of Legal Affairs v.
Sanford-Orlando Kennel Club, Inc., 434 So. 2d 879, 882 (Fla.1983); Carson v.
Miller, 370 So. 2d 10, 11 (Fla.1979); State ex rel. West v. Gray, 74 So. 2d 114, 116
(Fla.1954); Wilson v. Crews, 160 Fla. 169, 175, 34 So. 2d 114, 118 (1948); City of
Jacksonville v. Continental Can Co., 113 Fla. 168, 171-73, 151 So. 488, 489-90
(1933); Van Pelt v. Hilliard, 75 Fla. 792, 798 (Fla. 1918). The language of Section
718.106(1) conveys a clear and definite plain meaning - condominiums are real
property, even when they are created on a leasehold.
B. Any possessory interest in real property meetsthe qualification for homestead status forpurposes of Article X, Section 4(a).
Article X, Section 4(a) does not distinguish between different types of
ownership interests that are entitled to the homestead exemption against forced
sale. In re Alexander, 346 B.R. 546, 549-50 (Bankr. M.D. Fla. 2006); Culter v.
Cutler, 994 So. 2d 341, 344 (Fla. 3d DCA 2008); Southern Walls, Inc. v. Stilwell
6
Corp., 810 So. 2d 566, 569 (Fla. 5th DCA 2002). In other words, it does not
designate how title to the property is to be held and it does not limit the estate that
must be owned. Southern Walls 810 So. 2d at 569.
Florida courts have held that a homestead interest is any type of interest in
the property, legal or equitable, so long as the interest is a possessory interest. Id.
In fact, "any beneficial interest in land" may entitle its owner to the exemption. Id
at 570; Bessemer Properties v. Gamble, 27 So. 2d 832, 833 (Fla. 1946); In re
Lisowski, 395 B.R. 771, 777 (Bankr. M.D. Fla. 2008); Milton, 58 So. at 718; In re
Mead, 255 B.R. 80, 83 (Bankr. S.D. Fla. 2000); Miami Country Day Sch. v. Bakst,
641 So. 2d 467, 468 (Fla. 3d DCA 1994); see also: Hill v. First Nat. Bank, 75 So.
at 617 (holding that possession of land was a sufficient interest for homestead
exemption to attach); Hill v. First National Bank of Marianna, 73 Fla. 1092, 75 So.
614 (Fla. 1917) (homestead applied to property held as tenancy in common); Smith
v. Unkefer, 515 So. 2d 757 (Fla. 2d DCA 1987) (homestead applied to life estate);
Heiman v. Capital Banlc, 438 So. 2d 932 (Fla. 3d DCA 1983) (homestead applied
to equitable interest); Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012)
(homestead applied to condominium held in revocable trust).
Thus, homestead may be claimed by debtors for structures in which they
have an ownership interest even though the debtors do not own the property on
which the structure is situated. As such, courts have held that motor coaches,
7
travel trailers, and even motorboats could, under the proper factual circumstances,
be found to have the requisite permanence to qualify for the homestead exemption.
In In re Bubnak, 176 B.R. 601 (Bankr. M.D. Fla. 1994), the court held that a motor
coach qualified as a homestead since it was the debtor's permanent residence and
was permanently hooked up to utilities. Similarly, in In re Meola, 158 B.R. 881
(Bankr. S.D. Fla. 1993), the court found that a travel trailer qualified as the
debtor's homestead and, thus, the debtor could benefit from the homestead
exemption. Note, however, that when the debtor owns the land upon which a
mobile home is located, §222.05 is not applicable, and both the land and mobile
home qualify as homestead.
C. The homestead protection from forced sale ofArticle X, Section 4, Florida Constitution, on acondominium leasehold property does notafford protection to other forms of leaseholdproperty.
The Supreme Court made it clear in the case of Wartels that the interest of a
homesteader must be an ownership interest in real property. Although the common
law provides that a leasehold is not an interest in real property but rather a chattel
real, Chapter 718 declares the leasehold to be an interest in real property for the
purposes of article X, Section 4. Condominiums are "strictly creatures of statute."
Woodside Vill. Condo. Ass'n, Inc. v. Jahren, 806 So. 2d 452, 455 (Fla. 2002).
Chapter 718, known as Florida's Condominium Act, gives statutory recognition to
8
the condominium form of ownership of real property and establishes a detailed
scheme for the creation, sale, and operation of condominiums. Id.; § 718.102,
Florida Statutes. From the outset, courts have recognized that condominium living
is unique to more traditional forms of real propeity ownership. Id. at 456 (citing
Seagate Condo. Ass'n, Inc. v. Duffy, 330 So. 2d 484, 486 (Fla. 4th DCA 1976)).
Unit owners look to the Condominium Act for their rights and obligations, and
Section 718.106(1) gives unit owners an interest in real property by virtue of their
ownership of a unit.
Additionally, there are limitations built into the Condominium Act to further
qualify this right. Section 718.401(1), Florida Statutes, allows for the creation of a
condominium on lands held under a lease if, on the date the first unit is conveyed
by the developer, the lease has an unexpired term of at least 50 years. Therefore, a
condominium cannot exist on a short-term lease. The law is clear, however that a
unit owner that owns a condominium built on land subject to a long-term lease has
an interest in real property pursuant to Chapter 718, Florida Statutes. As such, the
condominium unit is an interest in real property for purposes of Article X, Section
4, Florida Constitution.
II. A HOMESTEAD EXEMPTION ON LEASEHOLDPROPERTY OF A CONDOMINIUM ADVANCES THEPUBLIC POLICY OF ARTICLE X, SECTION 4,FLORIDACONSTITUTION.
Since its creation, the purpose of the homestead exemption has been to
promote the "stability and welfare of the state by encouraging property ownership
and the independence of its citizens by preserving a home where a family may live
beyond the reaches of economic misfortune." In re McAtee, 154 B.R. 346, 347-48
(Bankr, N.D. Fla. 1993) (citing In re Ehnle, 124 B.R. 361, 363 (Bankr. M.D. Fla.
1991); See also: Bigelow v. Dunphe, 197 So. 328, 330 (Fla. 1940); Public Health
Trust of Dade County v. Lopez, 531 So. 2d 946, 948 (Fla. 1988); Miami Country,
641 So. 2d at 468-69; In re Dean, 177 B.R. at 728; In re Mead, 255 B.R. at 83;
Southern Walls, 810 So. 2d at 569; Boren v. Suntrust Bank, 46 So. 3d 1156, 1158
(Fla. 2d DCA 2010).
The spirit of Florida's homestead law endeavors to "shelter the family and
provide it a refuge from the stresses and strains of misfortune" and to protect the
home from the reach of creditors. Miami Country, 641 So. 2d at 470 (citing
Collins v. Collins, 150 Fla. 374, 377, 7 So. 2d 443, 444 (1942)); Lopez, 531 So. 2d
at 948.
A homestead protection has always been recognized, whether the homestead
was "a twenty-two room mansion or a two-room hut, and whether the heirs were
rich or poor." Id at 951. "Although a castle to one person may be a shanty to
10
another, the law does not so discriminate." Southern Walls, 810 So. 2d at 571.
Whether one's castle is a "traditional family home or a modest cottage, whether it
is a rural farmhouse or a villa by the sea, whether it floats or sits on wheels,
whether it is a condominium or a co-op, it should receive the same protection
under Florida law." Id. This public policy is advanced when applied to the
condominium form of ownership. The law should not discriminate between those
who can afford a single family home and those who can afford a condominium.
See also: Sterling Vill. 251 So. 2d at 688; Barlow v. Barlow, 23 So.2d 723-24
(Fla. 1945). To deny the homestead protections to unit owners in condominiums
on leaseholds would do injustice to the deeply rooted public policy that homestead
strongly protects.
Although there are three contexts in which the homestead exemption
applies: forced sale, descent and devise, and taxation; the exemption from forced
sale is particularly strong, receiving more protection than the exemption from
taxes. Southern Walls 810 So. 2d at 571; Phillips v. Hirshon, 958 So. 2d 425, 430
(Fla. 3d DCA 2007) ("The public policy underlying the homestead exemption from
forced sale is clearly more compelling than the public policy underlying the tax
exemption"). Florida's homestead protection is so strong that it has been held to
override even criminal statutes. In re Dean, 177 B.R. at 728 (citing to Butterworth
v. Caggiano, 605 So. 2d 56 (Fla. 1992) (holding that homestead property is not
11
subject to Civil RICO forfeiture even if homestead property was actually used in
the commission of underlying crimes, the "public policy safeguarding person and
family from forceful dispossession of their house is so great that the state's interest
in enforcing criminal laws cannot overcome the homestead exemption").
The courts have applied this public policy to support a finding of homestead
in many non-traditional settings - applying it to condominiums is no different. For
example, in Miami Country Day School v. Bakst, the court concluded that a 3,000
square foot houseboat was homestead property, even though the debtor did not
own the land or water beneath the houseboat. 641 So. 2d 467. Courts have further
upheld a claim of homestead exemption where the debtor leased the underlying
real property. In re Mead, 255 B.R. 80 (holding that a debtor's 34-foot cabin
cruiser, which was connected to a leased boat dock, qualified as homestead); In re
Dean, 177 BR at 729 ("A lessee's interest in a leasehold estate is, for all purposes,
the equivalent of absolute ownership and is protected by the homestead
exemption"); In re Mangano 158 B.R. 532 (Bankr.S.D.Fla.1993), (holding that a
motor home parked in a rented spot at a mobile home park was homestead); In re
McAtee, 154 B.R. 346 (holding that the debtor's residence subject to a long-term
lease was homestead from forced sale). Houseboats, cabin cruisers, motor homes,
and other residences on leased property qualify for homestead exemptions, and
condominiums should receive similar treatment.
12
In 1971, thousands of citizens were investing millions of dollars in
condominium property daily. Sterling Vill., 251 So. 2d at 688. According to the
Division of Florida Condominiums, Timeshares, and Mobile Homes, there are
26,873 condominiums in Florida today. The rights of these unit owners to claim
the homestead protections hinges on the result of the Court's decision in this case.
If a condominium on leased land is not held to be homestead exempt, a single
family could be forced out of their condominium - their home - by creditors,
which is exactly what the Florida Constitution was designed to protect against.
There has been a long and well-established history of liberally construing
and broadly applying the homestead exemption for the purpose of protecting the
family home. Even the proceeds of a sale of a homestead have been considered
exempt if the intent is to reinvest those proceeds in another homestead. Orange
Brevard Plumbing & Heating v. La Croix, 137 So. 3d 201, 206-7 (Fla. 1962).
"While great care should be taken to prevent homestead laws from becoming
instruments of fraud, an imposition on creditors, or a means to escape honest debts
provisions of homestead laws should be carried out in the liberal beneficent spirit
in which they were enacted." In re Dean, 177 B.R. at 728-29. See also: Bessemer,
27 So. 2d at 833 ("this Court is committed to the doctrine that the transfer of
homestead property is not a fraud on creditors"). Moreover, the homestead
protections in the Florida Constitution shall accrue to the heirs because "[t]hat
13
property which creditors could not take from the head of the family when he was
living, they cannot take from his heirs after his death. This is what the Constitution
plainly said to any one who might become a creditor." Pub. Health Trust of Dade
County v. Lopez, 531 So. 2d 946, 950 (Fla. 1988). Consistent with the liberal
spirit of the homestead exemption, condominiums on leasehold property should be
protected from forced sale by creditors.
CONCLUSION
For the forgoing reasons and those in Respondent's Answer Brief, the
Amicus respectfully requests that the Court affirm the District Court's decision
upholding the homestead exemption to a condominium on land subject to a long-
tenn lease.
Respectfully submitted this day of July 2013.
Rachèl-lrVfafone
Florida Bar No. 07360667243 Bryan Dairy RoadLargo, Florida 33777Telephone: 727/545-8114Facsimile: 727/545-8227
Email: [email protected]
14
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished, by Electronic Mail, this day of July 2013, to the following:
Sarah Richardson, Esquire ([email protected])
1510 W. Cleveland Street
Tampa, Florida 333606-1807
Donald S. Crowell, Esquire ([email protected])
315 Court Street
Clearwater, Florida 33756-5165
Secondary E-Mail: [email protected]
Donald S. Crowell, Esquire and Sarah Richardson, Esquire400 South Fort Harrison Avenue, Suite 140Clearwater, Florida 33756
Karen Dexter, Esquire ([email protected])
2316 Killearn Center Blvd.Tallahassee, Florida 32309-3524
James H.K. Bruner, Sr., Esquire ([email protected])
Secondary E-Mail: [email protected] Remington Green Cir Ste B
Tallahassee, Florida 32308-1564
Russell R. Winer, Esquire ([email protected])
1840 4* Street N., Suite 201St. Petersburg, Florida 33704-4303
Rachel M. Wagoner
15
CERTIFICATE OF COMPLIANCE
In compliance with Fla. R. App. P. 9.210(a), the font size used in this Amici
Curiae Brief is Times New Roman, size 14.
Rachel M. Wagoner
16