PREVENT ALIENATION OF HOMESTEAD | Key Points

1. Florida’s Third DCA addressed the homestead exemption in article X, section 4(c) of the Florida Constitution in the context of alienation and spousal abandonment of homestead property. Isaacs v. Fed. Nat’l Mortg. Ass’n, No. 3D20-0604, 2022 WL 17660325, at *1 (Fla. 3d DCA Dec. 14, 2022). In Isaacs, the husband (Isaacs) claimed that a mortgage taken out by his wife, which allegedly contained his forged signature, was invalid based on the mortgagee’s failure to comply with the spousal joinder requirement of section 4(c). The trial court disagreed, concluding that Isaacs’ prior abandonment of the homestead property rendered the spousal joinder requirement waived by Isaacs. The court entered a foreclosure judgment in favor of FNMA.

2. On appeal, the Third DCA reversed the foreclosure judgment based on the Florida Supreme Court’s holding in In re Est. of Scholtz. In that case the Court concluded that “homestead [property] may not be devised if the owner is survived by a spouse or minor child” regardless of “whether the surviving spouse lived at the property at the time of his death.” The Third DCA surmised there was no reason the Court’s conclusion in this regard would not also apply to restraint on alienation of homestead property.

3. The Third DCA reversed the judgment of foreclosure and held the lack of Isaacs’ joinder on the 2005 mortgage of the Property rendered the mortgage invalid and entry of the foreclosure judgment improper. The Court remanded the matter for further proceedings.

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