Laurel Kelly, as Martin County Property Appraiser, and Ruth Pietruszewski, as Martin County Tax Collector ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LAUREL KELLY, as Martin County Property Appraiser, and RUTH
PIETRUSZEWSKI, as Martin County Tax Collector,
Appellants,
v.
MARY JANE SPAIN,
Appellee.
No. 4D14-510
[February 25, 2015]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
432013CA000767.
Gaylord A. Wood, Jr., and J. Christopher Woolsey of Law Offices of
Wood & Stuart, P.A., Bunnell, for appellants.
Donald H. Whittemore of Phelps Dunbar LLP, Tampa, for appellee.
GROSS, J.
Does a homestead exemption originally obtained by a husband alone
inure to his wife’s benefit after his death, where (1) the property was held
as a tenancy by the entireties, (2) the wife never filed for her own
homestead exemption, and (3) the wife continuously maintained her
permanent residence on the property before and after her husband’s
death? Under Article VII of the Florida Constitution and statutes
implementing the Constitution’s homestead provisions, we answer the
question in the affirmative.
The facts of this case are not in dispute. In 1985, Frank Spain applied
for and received a homestead exemption for the house he owned in his
name on South Beach Road in Hobe Sound. After receiving the exemption,
he married appellee Mary Jane Spain in April 1985. From that time, the
couple resided at the house as their primary residence for the remainder
of their marriage. On February 24, 2000, Frank conveyed the house via
warranty deed to himself and Mary Jane, as tenants by the entireties.
After this conveyance, Mary Jane did not apply for her own homestead
exemption. The couple received property tax bills in both their names,
consistent with the entireties ownership, and continued to receive the
homestead exemption. Frank died on April 25, 2006. Mary Jane
continued to occupy the house as her primary residence. She did not
apply for a homestead exemption in her name after Frank’s death, nor did
she notify the Property Appraiser of his demise.
From 2007 through 2011, the Martin County Property Appraiser
continued to apply the homestead exemption’s tax benefits and the “Save
Our Homes” assessment cap to the home and sent notices of proposed
taxes to “Frank K. Spain and Mary Jane Spain”; likewise, the Tax Collector
sent tax notices addressed to “Frank K. Spain and Mary Jane Spain.”
In May 2012, the Property Appraiser learned of Frank’s death from the
filing of an Order of Summary Administration. This probate filing was the
Property Appraiser’s first notice that Frank had died in 2006.
Two months later, the Property Appraiser sent Mary Jane a letter
informing her that a $283,070.45 tax lien had been placed on her home.
The amount of the lien was based on the total taxes erroneously exempted
from 2007 through 2011, including a 50% penalty and 15% interest per
year. To justify the notice of tax lien, a compliance officer in the Property
Appraiser’s office explained:
We recently received notice, as a result of a probate recording
. . . that Frank K. Spain died on 4/25/2006. [The h]omestead
exception on this account was based on Frank K. Spain’s
homestead application he filed in 1985 and was contingent
upon his continued residency on this property in Florida. Mr.
Spain was the only owner who filed an application for the
homestead exemption.
Since we were unaware that Mr. Spain died in 2006 we have
continued to automatically renew his homestead exemption
each year. [The h]omestead exemption should have ended as
of 12/31/06 as a result of his death in April 2006.
Procedural Posture
Mary Jane satisfied the tax lien under protest and filed suit against
Martin County’s Property Appraiser and Tax Collector (“the appellants”),
seeking two forms of declaratory relief: first, a “finding that, following her
husband’s death in 2006, [Mary Jane] was entitled to the benefit of the
homestead exemption and the limitation of reassessments of her [home]
as provided by law”; and, second, “a refund from the Tax Collector of the
amount of the 2012 property taxes paid in excess of the taxes due had the
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homestead exemption not been revoked by the Property Appraiser.”
Relying upon section 193.155(3)(a), Florida Statutes (2011), which
comprises part of the “Save Our Homes” amendment’s implementing
statute, Mary Jane argued her husband’s “death did not constitute a
change of ownership of the [home] that triggered the requirement to
reassess the [home] at just value.” Rather, Mary Jane interpreted section
193.155(3)(a) in pari materia with section 196.011, Florida Statutes
(2011)—the homestead exemption’s implementing statute—as mandating
that “there is no change of ownership where subsequent to the change,
the same person is entitled to the homestead exemption and the transfer
is made between spouses or to a surviving spouse.”
In their answer, the appellants contended that Mary Jane waived the
homestead exemption benefits from 2007 through 2011 by failing to file a
homestead application in her name. The appellants viewed the death of
Frank, “the co-owner of the property who was the only applicant for [the
H]omestead Exemption,” as “a change in ‘the status or condition of the
owner’” contemplated by section 196.011(9)(a), Florida Statutes (2011),
requiring Mary Jane to “notify the Martin County Property Appraiser of
that fact.” Because she failed to do so, the appellants claimed the lien was
proper.
The circuit court granted summary final judgment in favor of Mary Jane
and ordered the Tax Collector to refund $283,070.45 to her, with interest.
Standard of Review
“Statutory and constitutional construction are questions of law subject
to a de novo review.” W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8
(Fla. 2012). “When reviewing constitutional provisions, this Court follows
principles parallel to those of statutory interpretation.” Ford v. Browning,
992 So. 2d 132, 136 (Fla. 2008) (internal quotation omitted). Accordingly,
“[i]f the language in the constitution is clear, there is no need to resort to
other tools of construction.” Garcia v. Andonie, 101 So. 3d 339, 343 (Fla.
2012) (citing Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 510 (Fla.
2008)). If, on the other hand, “the explicit language is ambiguous or does
not address the exact issue before the court, the court must endeavor to
construe the constitutional provision in a manner consistent with the
intent of the framers and the voters.” Ford, 992 So. 2d at 136 (citing Crist
v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So. 2d 134, 140 (Fla.
2008)).
Homestead and the “Save Our Homes” Assessment Cap
“The law of homestead began as an ‘American innovation’ that was
incorporated into Florida’s jurisprudence where it evolved, relative to the
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homestead laws of other jurisdictions, into a rather unique body of rules
and principles.” Traeger v. Credit First Nat’l Ass’n, 864 So. 2d 1188, 1190
(Fla. 5th DCA 2004) (citation omitted). From this transformation,
homestead has been given meaning in three different contexts—taxation,
exemption from forced sale, and devise and descent—lending itself to its
title as our state’s “legal chameleon.”1 See Snyder v. Davis, 699 So. 2d
999, 1001-02 (Fla. 1997); Phillips v. Hirshon, 958 So. 2d 425, 427 (Fla. 3d
DCA 2007).
No matter the form, the goal of homestead has remained stable: to
protect the family. See Chames v. DeMayo, 972 So. 2d 850, 856 (Fla.
2007). Homestead “‘promote[s] the stability and welfare of the state by
securing to the householder a home, so that the homeowner and his or
her heirs may live beyond the reach of financial misfortune.” McKean v.
Warburton, 919 So. 2d 341, 344 (Fla. 2005) (quoting Pub. Health & Trust
v. Lopez, 531 So. 2d 946, 948 (Fla. 1988)). Those aspects of homestead
directed at property taxation provide financial relief for owners of property
who qualify for homestead status.
Article VII, Section 6(a) of the Florida Constitution allows “[e]very
person who has the legal or equitable title to real estate and maintains
thereon the permanent resident of the owner, or another legally or
naturally dependent upon the owner,” to claim a homestead tax
exemption. For real property to qualify for a homestead exemption, an
applicant must make three showings: (1) that the real property is owned
by a “natural person”; (2) that the owner has “made, or intend[s] to make
the real property his or her permanent residence or that of his family”; and
(3) that “the property . . . meet[s] the size and contiguity requirements of
article X, section 4(a)(1) of the Florida Constitution.” Aronson v. Aronson,
81 So. 3d 515, 518 n.2 (Fla. 3d DCA 2012) (citing Cutler v. Cutler, 994 So.
1The moniker arises from Harold B. Crosby and George John Miller’s law review
article Our Legal Chameleon, the Florida Homestead Exemption: I-III, 2 U. Fla. L.
Rev. 12 (1949), in which they stated:
At times, . . . separate and distinct chameleons, one of one size and
one of another, perch on a single object. Thanks to the early
draftsmen in this field, who, if they did not write too well, at least
refrained from writing too much, and to a Supreme Court that for
decades has shown a high degree of sound common sense and
logical consistency in the interpretation of most of the homestead
provisions, there exist today definite contours that remain
distinguishable amid the camouflage of varying factual situations.
Id. at 13.
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2d 341, 344 (Fla. 3d DCA 2008)). Once the homestead exemption is
granted, the homeowner is not required—county permitting—to submit a
renewal application each year unless there has been change affecting the
property’s homestead status. See Mastroianni v. Mem’l Med. Ctr. of
Jacksonville, Inc., 606 So. 2d 759, 761-62 (Fla. 1st DCA 1992). Section
196.011(9)(a), Florida Statutes (2011), sets forth the circumstances when
a reapplication for homestead status is required even where a county
“waiver” exists:
A county may, at the request of the property appraiser and by
a majority vote of its governing body, waive the requirement
that an annual application or statement be made for
exemption of property within the county after an initial
application is made and the exemption granted. . . .
Notwithstanding such waiver, refiling of an application or
statement shall be required when any property granted an
exemption is sold or otherwise disposed of, when the
ownership changes in any manner, when the applicant for
homestead exemption ceases to use the property as his or
her homestead, or when the status of the owner changes
so as to change the exempt status of the property.
(Emphasis added).
Among the benefits inhering in homestead status is the tax break
afforded by article VII, Section 4(d) of the Florida Constitution, popularly
known as the “Save Our Homes” amendment. Lanning v. Pilcher, 16 So.
3d 294, 296 (Fla. 1st DCA 2009). The amendment “took its place in the
Florida Constitution after the voters of this State approved a citizens’
initiative on November 3, 1992,” Zingale v. Powell, 885 So. 2d 277, 280
(Fla. 2004), with the purpose of “encourag[ing] the preservation of
homestead property in the face of ever increasing opportunities for real
estate development, and rising property values and assessments.” Smith
v. Welton, 710 So. 2d 135, 137 (Fla. 1st DCA 1998) (footnote omitted). It
serves this goal by “limit[ing] the annual change in property tax
assessments on homestead exempt property to three percent of the
previous assessment or the change in the Consumer Price Index,
whichever is less.”2 Vega v. Robbins, No. 03-23953 CA 30, 2006 WL
779734, at *1 (Fla. 11th Cir. Ct. Mar. 17, 2006).
2The “Save Our Homes” Amendment provides, in pertinent part:
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As explained by the Supreme Court in Zingale, the Article VII, Section
4(d) “Save Our Homes” assessment cap interlocks with the Article VII,
Section 6 homestead; “both provisions are parts of a coordinated
constitutional scheme relating to taxation and have as their underlying
purpose the protection and preservation of homestead property.” 885 So.
2d at 285. The “Save Our Homes” protection is available only to those who
have applied for and received a section 6 homestead exemption. Id.
After her husband’s death, Mary Jane was entitled to continue to
enjoy the homestead exemption because she continued to occupy
the home as her primary residence
The appellants argue that after her husband’s death, Mary Jane was
not entitled to the waiver of the homestead renewal procedures provided
in section 196.011(9)(a) because the ownership of her home had “change[d]
in any manner” within the meaning of that section, thus requiring her to
file a new homestead application. However, as Mary Jane argues, there
was no such change of ownership that triggered the need for a new
application. Section 196.011 must be read in pari materia with the “Save
Our Homes” amendment’s implementing statute—section 193.155,
Florida Statutes (2011)—which expressly provides that there is no change
in ownership when there is a transfer of homestead property to one spouse
upon the death of the other.
In Zingale, the Supreme Court concluded that subsection 4(d)3 and
section 6 of Article VII “should be read in pari materia.” 885 So. 2d at 285.
If the constitutional provisions are to be construed together, it follows that
statutes implementing the same provisions are also “construed together to
harmonize the statutes and to give effect to the Legislature’s intent.” Fla.
Dep’t of State, Div. of Elections v. Martin, 916 So. 2d 763, 768 (Fla. 2005).
(1) Assessments subject to this subsection shall be changed
annually on January 1st of each year; but those changes in
assessments shall not exceed the lower of the following:
a. Three percent (3%) of the assessment for the prior year.
b. The percent change in the Consumer Price Index for all
urban consumers, U.S. City Average, all items 1967=100, or
successor reports for the preceding calendar year as initially
reported by the United States Department of Labor, Bureau
of Labor Statistics.
Art. VII, § 4(d), Fla. Const.
3 At the time, the “Save Our Homes” amended was codified in section 4(c).
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“[T]he fundamental object to be sought in construing a constitutional
provision is to ascertain the intent of the framers and the provision must
be construed or interpreted in such manner as to fulfill the intent of the
people, never to defeat it.” Browning v. Fla. Hometown Democracy, Inc.,
PAC, 29 So. 3d 1053, 1063 (Fla. 2010) (citation and quotations omitted).
Sections 196.011 and 193.155 both implement the constitutional
provisions concerning the taxation of homestead properties. As previously
noted, section 196.011(9)(a)’s homestead renewal procedure mandates the
re-filing of a homestead application “when any property granted an
exemption is sold or otherwise disposed of, when the ownership changes
in any manner, when the applicant for homestead exemption ceases to use
the property as his or her homestead, or when the status of the owner
changes so as to change the exempt status of the property.” While section
196.011 fails to define the term “ownership change,” section 193.155(3)(a),
which pertains to assessment caps under the “Save Our Homes”
amendment, fills this void by stating:
(3)(a) Except as provided in this subsection or subsection (8),
property assessed under this section shall be assessed at just
value as of January 1 of the year following a change of
ownership. Thereafter, the annual changes in the assessed
value of the property are subject to the limitations in
subsections (1) and (2). For the purpose of this section, a
change of ownership means any sale, foreclosure, or transfer
of legal title or beneficial title in equity to any person, except
as provided in this subsection. There is no change of
ownership if:
...
2. Legal or equitable title is changed or transferred
between husband and wife, including a change or
transfer to a surviving spouse or a transfer due to a
dissolution of marriage . . . .4
(Emphasis added). As referenced within subsection 193.155(3)(a), which
deals with the establishment of a new homestead, the statute’s subsection
(8) provides that a husband or wife have the benefit of a single homestead
application filed by only one of them:
4The statute also provides that there is no change of ownership if a “transfer
occurs by operation of law to the surviving spouse or minor child or children
under s. 732.401” or if “[u]pon the death of the owner, the transfer is between
the owner and another who is a permanent resident and is legally or naturally
dependent upon the owner.” § 193.155(3)(a)3., 4., Fla. Stat. (2011).
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For purposes of this subsection, a husband and wife who
owned and both permanently resided on a previous
homestead shall each be considered to have received the
homestead exemption even though only the husband or the
wife applied for the homestead exemption on the previous
homestead.
§ 193.155(8), Fla. Stat. (2011) (emphasis added).
Reading sections 196.011 and 193.155 together leads to two
conclusions. First, a homestead application filed by one spouse inures to
the other spouse, provided both spouses permanently resided at the
homestead. Second, the transfer of homestead property between a wife
and husband through the operation of survivorship does not constitute a
change of ownership under section 196.011(9)(a). To interpret otherwise
would create a conundrum, where a surviving spouse would qualify for
renewal of the “Save Our Homes” assessment cap but not for renewal of
the homestead exception. Such a result is not consistent with the
homestead exemption’s purpose of shielding Floridians from undue
financial hardship related to a home after a person has experienced one of
life’s most stressful events, the death of a spouse.
The appellants also focus on the language in section 196.011(9)(a)
indicating that refiling of an application is required when the “applicant
for homestead exemption ceases to use the property as his . . . homestead.”
Obviously, Frank’s death meant that he ceased to “use” the property.
However, this approach fails to take into account that section 196.011
allows an “applicant” to apply for a homestead exemption on behalf of a
spouse. See § 196.011(1)(b), Fla. Stat. (2013). We therefore read
“applicant” as including both spouses who own a property as tenants by
the entirety. This reading is reinforced by treatment accorded spouses in
subsections 193.155(3) and (8). The “cease to use” provision of section
196.011(9)(a) applies when both spouses cease to use the property as their
homestead.
The notion that there was not a change of ownership or use in this case
that triggered the requirement of a new homestead application is
strengthened by the characteristics of the tenancy by entireties form of
ownership which the Spains utilized. In a tenancy by the entireties, the
“husband and wife hold the property ‘per tout,’ such that both are treated
as one person and neither spouse can sell, forfeit, or encumber any part
of the estate without the consent of the other.” Romano v. Olshen, Nos.
4D12-451, 4D12-2466, 4D13-1083, 2014 WL 940700, at *8 (Fla. 4th DCA
Mar. 12, 2014) (internal quotations omitted). “[E]ach spouse’s interest
comprises the whole or entirety of the property and not a divisible part;
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the estate is inseverable.” United States v. One Single Family Residence
With Out Buildings Located at 15621 S.W. 209th Ave., Miami, Fla., 894 F.2d
1511, 1514 (11th Cir. 1990) (citations omitted) (applying Florida law).
“When one of the tenants by the entirety dies, the surviving tenant receives
no new or greater estate than already possessed, but the interest of the
deceased tenant ceases.” Lopez v. Lopez, 90 So. 2d 456, 458 (Fla. 1956).
Because Mary Jane owned no more or less of the property after her
husband died, and because entireties law viewed them as one owner,
neither the ownership of the property nor Mary Jane’s use of it “changed”
within the meaning of section 196.011(9)(a).
The rule created by reading the Constitution and applicable statutes
together is that where a husband and wife occupy a homestead and where
one of the spouses properly applied for and obtained a homestead
exemption, the death of one spouse will not destroy the homestead
exemption of the other so long as the survivor continues to use the
homestead as his or her permanent residence.
The appellants suggest that this holding would open a Pandora’s box of
evils. They point out that allowing surviving spouses to continue to enjoy
the benefits of the deceased spouses’ homestead applications would place
property appraisers in the impossible position of “guess[ing] which
surviving spouses of homestead exemption recipients might wish to have
the homestead exemption applied to them, assuming that they are also
permanent residents, entitled to homestead exemptions in the first place.”
We do not see that these concerns are different than those related to any
homestead owner facing renewal—an owner is required to file an honest
renewal application under section 196.011(6)(a) or refile an application if
required under section 196.011(9)(a). Similar to any taxation statute,
homestead law requires people to act honestly, to tell the truth, or suffer
the legal consequences. If Mary Jane had not been using the home as her
primary residence after her husband’s death she would have been required
to report that fact pursuant to section 196.011(9)(a) or suffer the interest
and penalty provisions of that section. It is a great injustice to take a
surviving spouse who, after her husband’s death, continues to properly
enjoy the homestead classification and treat her as a scofflaw by imposing
a 50% penalty of the taxes exempted plus 15% interest on what is
purportedly owed.
For these reasons we affirm the final summary judgment.
TAYLOR and LEVINE, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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