FIRST LEASING & FUNDING OF FLORIDA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
LOWELL C. FIEDLER, D/B/A ISLAND PUB, ANN FIEDLER, AS GUARANTOR, AND LANTIS, INC., BETTY LANTIS AND GEORGIA LANTIS, AS GUARANTORS, APPELLEES

Fla. 2d DCA | 1992-01-17
No. 90-01956
CAMPBELL, A.C.J., and PARKER, J., concur.
591 So. 2d 1152 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the homestead exemption under Article X, Section 4 of the Florida Constitution does not extend to income-producing units of a triplex that are leased to and occupied by tenants, even if the owner resides in another unit.


Headnotes

[1] The homestead exemption under Article X, Section 4 of the Florida Constitution is limited to the owner's residence and does not extend to separate, income-producing units…

[2] Homestead protection under Florida law generally does not extend to income-producing portions of a debtor's property that are severable from the owner's residence.

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Facts & Procedural History

First Leasing obtained a default judgment against Fiedler and guarantors, including Georgia Lantis. First Leasing sought to levy on Lantis's triplex a…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

First Leasing & Funding of Florida, Inc. (First Leasing) challenges an order enjoining it from executing upon real property that the trial court characterized as a residential homestead. While not unmindful that the family residence is shielded from creditors by Article X, Section 4 of the Florida Constitution, we are persuaded that the court below exceeded the constitutional exemption. We reverse.

Lowell C. Fiedler entered into an agreement with First Leasing to lease certain equipment for use in his restaurant. To séeure payment in the event of Fiedler’s default, Georgia and Betty Lantis guaranteed the obligation to First Leasing. When delinquency occurred, First Leasing filed its complaint. No responsive pleadings were served. A final judgment by default was entered against all defendants on February 16,1988, in the amount of $13,078.00. Thereafter, in furtherance of its efforts to satisfy the judgment, First Leasing sought to levy upon a triplex apartment owned by Georgia, a portion of which was her residence.

First Leasing also attempted to garnish rental payments due and payable to Georgia from tenants who occupied units within the triplex. Claiming a home stead exemption, Georgia successfully enjoined First Leasing from levying upon her property.

The trial court determined, pursuant to Article X, Section 4, that the triplex in its entirety was insulated from satisfaction of First Leasing’s judgment.

Moreover, based upon an assignment of rents clause in the mortgage agreement, First Leasing was precluded from garnishing rents.

The current homestead provision of the Florida Constitution exempts from the claims of creditors a homestead located within a municipality, “to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family.” Art. X, § 4, Fla. Const. (1968).

In contrast, the exemption embodied within the 1885 constitution was broader; it extended to the “residence and business house of the owner.” Fla. Const, of 1885, Art. X, § 1. Our research has disclosed no decision passing upon the current exemption’s scope as it was narrowed by the 1968 amendment.

Nevertheless, a literal reading of the provision leads us to conclude that Georgia is entitled to an exemption from forced sale of her residence only and not the two units leased to and occupied by tenants.

The triplex in question is a one-story structure with units horizontally situated.

The record reveals that separate mailing addresses were maintained at each unit. At the time of trial, Georgia leased each unit for $400 per month. In some cases construing the 1885 provision, exemption from forced sale was denied with respect to leased portions of residential property that were severable from the owner’s residence. See, e.g., Smith v. Guckenheimer, 42 Fla. 1, 27 So. 900 (1900) (owner lived with his family on second floor and leased four of five storerooms on ground floor); McEwen v. Larson, 136 Fla. 1, 185 So. 866 (1939) (owner leased an apartment house and garage, both of which were separate from his family’s dwelling); Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA), appeal dismissed, 225 So. 2d 913 (Fla.1969) (owner resided in one of five units in a single-story apartment building).

Thus, the general rule in those early cases was that homestead protection should not extend to income producing portions of the debtor’s property. That conclusion is logical and it is the principle to which we adhere.

We recognize that the rule of Smith and McEwen and similar cases has not always been consistently followed either by Florida’s courts or by federal courts applying Florida law. For example, if income producing structures on the property provided the debtor’s only means of support, or if the portion of property used for business could not be easily severed from the owner’s home, the courts have been more willing to extend homestead status to the entire parcel. See, e.g., Cowdery v. Herring, 106 Fla. 567, 143 So. 433, 144 So. 348 (1932); Lockhart v. Sasser, 156 Fla. 339, 22 So. 2d 763 (1945); Edward Leasing Corp. v. Uhlig, 652 F.Supp. 1409, 1414 (S.D.Fla.1987).

In contrast, however, cases such as In re Aliotta, 68 B.R. 281 (Bankr.M.D.Fla.1986), in which the debtor occupied one unit of a fourplex, have followed the rule that the homestead exemption should not extend to the entire property because the debtor’s residence is a fraction of the whole, and an imaginary line could sever the residence from the remainder of the property. Such is the situation in the case before us.

Although we find that Georgia should not have been accorded a homestead exemption for units of her triplex leased to and occupied by others, we certify to the Florida Supreme Court the following question as one of great public importance:

WHETHER THE EXEMPTION FROM FORCED SALE PROVIDED BY ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION EXTENDS TO PORTIONS OF PROPERTY SEVERABLE FROM THE RESIDENCE AND UTILIZED TO PRODUCE RENTAL INCOME.

Reversed and remanded for further proceedings not inconsistent with this opinion.

CAMPBELL, A.C.J., and PARKER, J., concur.


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Cited By

  • Menard v. Univ. Radiation Oncology Assocs., LLP, 976 So. 2d 69 (Fla. 4th DCA 2008)
    …ge will amend the judgment accordingly. Two other issues remain. First, we address the trial court’s determination that the homestead exemption is not available under the facts of this case. In First Leasing and Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992), a creditor sought to levy execution on a single-level triplex owned by the judgment debtor, consisting of debtor’s residence and two other units under lease to different occupants. The trial court held that the entire triplex was…
  • Anderson v. Letosky, 304 So. 3d 801 (Fla. 2d DCA 2020)
    …Letosky can meet her burden of proof we must necessarily review the pertinent case law that discusses the constitutional provision at issue. We begin our review with a case issued by this court, First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992). The facts in that case are straightforward. The appellant obtained a monetary judgment against the appellees, including Georgia Lantis. To satisfy its judgment, the appellant sought to levy upon a triplex apartment owned by Ms…
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  • Furst v. ROD Rebholz, 302 So. 3d 423 (Fla. 2d DCA 2020)
    …e, none of the space used by the tenants could lawfully be conveyed as an independent parcel. This analysis demonstrates the unique indivisible nature of a person's private permanent residence. Cf. First Leasing & Funding of Fla., Inc. v. Fiedler, 591 So. 2d 1152, 1153 (Fla. 2d DCA 1992) (holding that debtor was "entitled to an exemption from forced sale of her residence only and not the two units [of the debtor's triplex apartment building] leased to and occupied by tenants" but recognizing that "if the por…

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