Demayo v. Chames, __ So.2d __ (Fla. 3d DCA Mar 15, 2006)
I previously wrote here about the Third DCA’s initial ruling in this case enforcing a charging lien against the debtor’s homestead property based on a written waiver. On its own motion the Third DCA subsequently reconsidered the case en banc and then completely reversed itself!
According to this Third DCA opinion even if a person knowingly waives his or her homestead protection against forced sale, such waiver is not enforceable unless it falls within one of exceptions specified in Article X, section 4 of Florida’s constitution, which provides in relevant part as follows:
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person….
The Third DCA was apparently uncomfortable with this outcome, but felt it had no choice under binding Florida Supreme Court precedent.
[Carter’s Administrators v. Carter, 20 Fla. 558, 570 (1884)] and [Sherbill v. Miller Mfg. Co., 89 So.2d 28, 31 (Fla.1956)] confirm that Article X, section 4 “protects the homestead against every type of claim and judgment except those specifically mentioned in the constitutional provision itself” and that other than for the purposes stated in this provision, cannot be waived. . . . Because the attempted waiver in this case is unrelated to those purposes stated in Article X, section 4, it is invalid.
Perhaps recognizing the unfairness of the outcome in this case, the Third DCA took the extraordinary step of essentially asking the Florida Supreme Court to overrule itself. More specifically, the Third DCA certified the following question to the Florida Supreme Court as a matter of great public importance:
WHETHER, IN LIGHT OF SUBSEQUENT PRECEDENT IN FLORIDA AND OTHER JURISDICTIONS, AND THE TEXTUAL CHANGES MADE BY THE PEOPLE OF THE STATE OF FLORIDA IN ARTICLE X, SECTION 4 OF THE FLORIDA CONSTITUTION IN THE GENERAL ELECTION OF NOVEMBER 1984, THE HOLDING IN CARTER’S ADM’RS v. CARTER, 20 Fla. 558 (1884), FOLLOWED IN SHERBILL v. MILLER MFG. CO., 89 So.2d 28 (Fla.1956), THAT A WAIVER OF THE BENEFIT AND PROTECTION OF THE EXEMPTION FOUND IN ARTICLE X, SECTION 4(A) OF THE FLORIDA CONSTITUTION IS UNENFORECEABLE AGAINST THE CLAIM OF A GENERAL CREDITOR, SHOULD BE OVERRULED?