If you haven't heard about the Third District Court of Appeals case in Florida for Habeeb v. Linder, then perhaps you should investigate further.
Florida Trusts & Estates, 2nd article on the page; http://www.fltrustsandestates.com/
or Judicial View; http://www.judicialview.com/State-Cases/Florida/Property/Habeeb-v-Linder/40/23390
Why is this case of such interest your asking? Then read on to see the opinions we've gathered;
For the second time in less than 5 years, the 3rd District Court of Appeals in Florida has issued a potentially ground-breaking and rule-changing homestead decision. If this ruling is broadly applied, post-nuptial waivers of homestead rights might be assumed in virtually all intra-spousal transfers via warranty deed.
SUMMARY
On February 9, 2011, a three-judge panel of the 3rd DCA issued a ruling in Habeeb v. Linder holding that a husband's joinder in a warranty deed of homestead property to his wife's name constituted a waiver of his post death homestead rights due to his transfer of "all hereditaments" to his wife. This is an important decision for many reasons (not the least of which being the extremely high regard held for the attorneys/firms for both litigants), and it may impact title to property in many cases.
Similarly, in 2007, the 3rd DCA's decision in Chames v. Demayo (holding that a waiver of the homestead creditor protection in an attorney's fee contract was valid) shook the homestead world, until it was overturned, first en banc by the 3rd DCA and then by the Florida Supreme Court.
FACTS in the case
Mitchell and Virginia Habeeb were married form approximately 1958 until Virginia's death in 2008. In 1973, they took title to a condo on Key Biscayne as tenants by the entireties. In 1979, they executed a warranty deed conveying title to Virginia individually.
The deed did not contain an explicit waiver of homestead rights (as the 3rd DCA points out) but it did contain the sweeping warranty language of the old Ramco Form 01, where the grantor "grants, bargains, sells, aliens, remises, releases, conveys and confirms to the grantee all that certain land as well as all the tenements, hereditaments and appurtenances thereto in fee simple forever". (emphasis added)
In 2006, Virginia executed a will devising a life estate in the condo to her husband, Mitchell, with the remainder interest in the condo to her sister, Betty. The residue passed to Mitchell.
They continuously lived in the condo as their homestead until Virginia's death in November 2008. Virginia was survived by both her husband, Mitchell, and her sister, Betty, but had no minor children at the time of her death.
Subsequently in January 2009, Mitchell died. He was survived by 6 nephews, including Richard Habeeb, the personal representative of his estate and appellant in the case.
Next, Betty died in July 2010, survived by her daughter, Catherine Linder, the personal representative of Virginia's estate and the appellee in the case.
Presented Arguments
Mitchell's estate challenged the devise of the homestead property in Virginia's will. The position taken was that Virginia's devise of only a life estate interest in the property to Mitchell was invalid and as a result, title vested outright in Mitchell on Virginia's death. Absent a valid waiver of Mitchell's homestead rights, a devise of less than a fee simple interest would be invalid under In re Estate of Finch. And if there was an invalid devise of the homestead, then since she had no descendants, the homestead would have passed outright to Mitchell by virtue of FS 732.401(1).
However, Virginia's estate argued that Mitchell did in fact validly waive his homestead rights, and thus Virginia's devise of only a life estate to Mitchell was valid. If there was a valid waiver, then this argument seems correct, given that Virginia was not survived by minor children. Therefore, the estate argued, the life estate terminated on Mitchell's death and the remainder beneficiary (Betty) took fee simple title at that time. Thus the beneficiaries of Betty's estate are now the owners of the homestead.
Therefore, obviously, the pivotal issue of the case was whether joining in the deed to Virginia constituted a valid homestead waiver by Mitchell.
This case is bound to cause quite a stir in title industry, investment industry and the real estate world and though it is a bit outside my general short sale and municipal lien search discussions I thought I would share it!
Pat D. Murphy ~ Lien Search Pro ~ www.liensearchpro.com
Please note that I am not a lawyer and I am not giving any legal opinions or advice, I am merely relaying information that I have gathered or that has been provided to me.
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