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ARGUMENT

THE DECISIONS OF THE DISTRICT COURT BELOW AND WARTELS ARE IN CONFLICT

WITH SOUTHERN WALLS.

This case involves an interaction between the second and third species of

homestead described by this Court in Snyder v. Davis, 699 So. 2d 999, 1001, 1002

(Fla. 1997). These are the homestead protection against forced sales by creditors,

at issue in Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA),

rev. denied, 829 So. 2d 919 (Fla. 2002), and the restrictions placed on a homestead

owner attempting to alienate or devise the homestead property, at issue in this case

and in In Re: Estate of Wartels v. Wartels, 357 So. 2d 708 (Fla. 1978). These two

provisions are closely related because they are both found in Art. X, § 4, Fla.

Const. In particular, they share the definition of homestead contained in Art X,

section 4(a)(1). Thus, it follows that if a particular type of property qualifies as

homestead for exemption from forced sale, then it must also qualify as homestead

for restrictions on devise, because the same definition is applied for both purposes.

Because the court in Southern Walls concluded that a cooperative apartment can be

homestead for the purposes of exemption from forced sale, while the district court

and this Court in Wartels held that the same cooperative apartment cannot be

homestead for purposes of restrictions on devise, the cases are in conflict.

FTL:2221415:1

4 RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.

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