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 CURIAE ON TOP OF THE WORI.D CONDOMINillM ASSOCIATION, INC. l(ACHEL M. WAGONFR Florida Bar No. 0736066 7243 Brvan Dairv Road 1.argo_ F lorida 33777 Telephone: (727) 545-8 l14 Riesimile: (727) 545-8227
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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
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
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
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.
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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. §
(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,
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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.
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
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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