New Homestead Decision in the Third District

In Walters v. Agency for Health Care Administration, --- So.3d ---- (2019), 2019 WL 4656114, the Third District examined the ongoing saga of Article X, section 4 of the Florida Constitution and its application to homestead. The per curiam opinion cited Wartels and Philips v. Hirshon.  Both cases  involved an invalid devise (Art. X, s. 4(c)). There is a clear conflict with the 2^nd DCA decision in Geraci v. Sunstar EMS.  The Geraci decision involved a creditor claim (Art. X., s. 4(b)) against a cooperative unit that was on land structured as a condominium. The court described it as  a condominium, went on to distinguish the Wartels  decision by saying a cooperative unit is not an interest in real estate.  The ultimate holding in Geraci was that Wartels only applies to cases involving the restrictions on devise that protect surviving spouses and children.  Devise restrictions and creditor protection both involve the same definition of homestead.  The Geraci court specifically declined to follow Wartels and said the protection from creditor claims does not require fee simple ownership. 

In this case, the trial court declined to apply the homestead exemption to the condominium based on its determination that the homestead protection at issue is actually that of descent and devise. The court appeared to recognize that the condominium may qualify as homestead for purposes of the homestead exemption from forced sale but explained that, in the context of descent and devise, the supreme court has held that the property interest must be a fee simple interest in land. See In re Estate of Wartels, 357 So. 2d 708, 710 (Fla. 1978) (holding that a co-op is not a homestead for purposes of descent because it is not "an  [**6] interest in realty").

The Florida Supreme Court accepted jurisdiction for the conflict between Wartels and Geraci, but then dismissed jurisdiction. It will be interesting to see if they do the same thing with this case.  I truly hope that they make a ruling. If accepted, this will be the 4^th time the Florida Supreme Court has been asked to address conflicts between Wartels and the cases involving creditor protection under Article X, s. 4.  There are factual distinctions in every case and that could be the reason that the court has declined to provide further guidance on the status of cooperative units for purposes of the constitutional homestead protections.