                   United States Court of Appeals,

                              Eleventh Circuit.

                                No. 94-2823.

    In re Edward ENGLANDER and Phyllis S. Englander, Debtors.

 Edward ENGLANDER;     Phyllis S. Englander, Plaintiffs-Appellants,

                                       v.

     George E. MILLS; First Union National Bank of Florida;
Transamerica Commercial Finance Corporation, Defendants-Appellees,

                       Charles W. Broun, Trustee.

                               Sept. 19, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 93-59-Civ-Orl-19), Henry H. Dickinson,
Judge.

Before TJOFLAT, Chief Judge, COX, Circuit Judge, and CLARK, Senior
Circuit Judge.

     PER CURIAM:

     In this bankruptcy appeal, appellants Edward and Phyllis S.

Englander ("Debtors") contest the district court's affirmance of

the bankruptcy court's denial of their claim of homestead exemption

and order of a sale of the property and allocation of the proceeds

so that the Bankruptcy Estate could realize the value of its

interest in the non-exempt portion of the property.

                                      FACTS

     On   September    27,    1990,    Edward    and   Phyllis   S.   Englander

("Debtors")   filed    a     joint    petition   under   Chapter      7   of   the

Bankruptcy Code.      The Debtors claimed their entire residence and

lot at 440 Henkel Circle, Winter Park, Florida as their homestead

exemption.    The property lies within the city limits of Winter

Park, Florida, and is located on a lake front lot which exceeds
one-half acre.          The parties agree that the property cannot be

subdivided due to local zoning and building regulations.

        The creditors and trustee objected to the claim of exemption

for this property because the acreage exceeded the allowable amount
                         1
under Florida law.           The Debtors admitted that the property was

1.05 acres and attempted to clarify the size of the claimed exempt

and non-exempt property.           A landowner can designate a portion of

their property as their homestead, subjecting only the remainder to

sale.       Fla.Stat.Ann. § 222.02 (1989).         The Debtors' designated

portion of non-exempt property had no access to roads, utilities or

lake frontage and was completely surrounded by the claimed exempted

.5 acres of land.        The bankruptcy court granted the creditors' and

trustee's motion for summary judgment, noting that the Debtors'

"attempt at homestead exemption "gerrymandering' was clearly made

in bad faith."2     In lieu of granting the exemption, the bankruptcy

court gave the Debtors an exemption in a portion of the proceeds to

be derived from the sale of the property. The parties subsequently

filed a stipulation and briefs on the issue of allocation, and the

Debtors again attempted to amend the description of their claimed

exempt      property.        The   bankruptcy   court   denied   the   Debtors'

amendment to their homestead exemption, and ordered the property

sold and the proceeds allocated.3


        1
      Although the creditors and trustees also objected to other
claimed exemptions and to this claim on other grounds, only the
acreage limitation is considered by this appeal.
        2
      R1-1, Exhibit 2-20;           In re Englander, 156 B.R. 862, 864
(Bankr.M.D.Fla.1992).
        3
         R1-1, Exhibit 3-26.
     The district court affirmed the decision of the bankruptcy

court relating to the claim of homestead exemption.4
                 JURISDICTION AND STANDARDS OF REVIEW

         This Court has jurisdiction to review the district court's

order under 28 U.S.C. § 158(d).      In reviewing a bankruptcy court

judgment as an appellate court, the district court reviews the

bankruptcy court's legal conclusions de novo.5     The district court

must accept the bankruptcy court's factual findings unless they are

clearly erroneous, and give due regard to the bankruptcy court's

opportunity to judge the credibility of the witnesses.6    This Court

reviews factual findings for clear error, and the district court's

determinations of law de novo.7       Neither the district court nor

this court may make independent factual findings.8

                               DISCUSSION

         The issue on appeal is whether the bankruptcy court can order

the sale of a claimed homestead property, which exceeds the area

limitation under the homestead provision and cannot be practically

or legally subdivided, and then order an apportionment of the

proceeds.


     4
      R1-14 at 19. The district court also affirmed in part and
vacated in part the bankruptcy court's order as to the allocation
of the proceeds of the sale, and remanded for further
proceedings. However, those rulings were not appealed.
     5
      In re JLJ Inc., 988 F.2d 1112, 1116 (11th Cir.1993), citing
In re Goerg, 930 F.2d 1563, 1566 (11th Cir.1991); Bankruptcy
Rule 8013, 11 U.S.C. (1988).
     6
      Id.;    Bankruptcy Rule 8013, 11 U.S.C. (1988).
     7
      In re Sublett, 895 F.2d 1381, 1383 (11th Cir.1990).
     8
      In re JLJ, Inc., 988 F.2d at 1116.
     A bankruptcy estate consists of all property that the debtor
                                                                     9
owned at the time of the filing of the bankruptcy petition.
Although the Bankruptcy Codes provides for exemption of property

which would otherwise be subject to the administration of the

bankruptcy estate, Florida has opted out of the federal exemption

scheme and makes its state statutory scheme available to its

residents.10

     The Florida law provides for a homestead exemption as follows:

     Homesteads—exemptions

     (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:

             (1) a homestead, if located outside a municipality, to
             the extent of one hundred sixty acres of contiguous land
             and improvements thereon, which shall not be reduced
             without the owner's consent by reason of subsequent
             inclusion in a municipality;    or if 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....11

     Although the Florida Constitution does not define the term

"homestead," it does provide various limitations and requirements

which include an acreage limitation, an ownership requirement, and

a residency limitation.         The issue in this case involves the

acreage limitation.

     The Florida Constitution provides exemption protection to real


     9
      11 U.S.C. § 541.
     10
          11 U.S.C. § 522(b);   Fla.Stat. § 222.20.
     11
          Fla. Const. art. X, § 4(a)(1).
property which is located within a municipality only so long as the

property is limited to one-half acre of contiguous land. There are

no   limitations     upon   the   cost,   size,   or   construction   of   the

residence.12

           In order to be exempt the property must meet all of the
                                                            13
requirements of the constitution for exemption.                  It must not

exceed the half of one acre in an incorporated town. 14               Florida

courts have denied the exemption to property that exceeds the

allowed limitations of residency by dividing the property, and

allowing the non-exempt property to be sold for payment of the

owner's debts.15 Because the only exceptions to homestead exemption

are those specifically enumerated in the Florida Constitution,
                                                  16
courts have refused to create new ones.                The Florida homestead

exemption laws do not contemplate the cutting up and division of an

entire indivisible building situated on exempt real estate. 17             No

Florida state court has considered the precise issue before us.

       Florida case law dictates that the homestead exemption laws

be liberally applied to the end that the family shall have shelter


      12
      Smith v. Guckenheimer, 42 Fla. 1, 37, 27 So. 900, 911
(1900).
      13
           Smith, 42 Fla. at 17, 27 So. at 915.
      14
           See Id., 42 Fla. at 17, 27 So. at 915.
      15
           Id., 42 Fla. at 19, 27 So. at 916.
      16
      In re Baxt, 188 B.R. 322, 324 (Bankr.S.D.Fla.1995); Bank
Leumi Trust Co. of N.Y. v. Lang, 898 F.Supp. 883, 887
(S.D.Fla.1995); Butterworth v. Caggiano, 605 So.2d 56, 60
(Fla.1992); Smith, 42 Fla. at 36-40, 27 So. at 911-912.
      17
      Smith v. Guckenheimer, 42 Fla. 1, 53, 27 So. 900, 905
(Fla.1900).
and shall not be reduced to absolute destitution. 18                   However, the

homestead exemption law is intended to be a shield, not a sword,

and should not be applied as to make it an instrument of fraud or

as an imposition upon creditors.19              The Florida Supreme Court in a

case where the land was owned by tenants in common following a

divorce      stated    that,   although     the    purpose      of   the     homestead

exemption is to protect the family home from forced sale for the

debts of the owner and head of the family, it had "never held that

the homestead provision precludes a common owner of property from

suing for partition and obtaining a forced sale in order to obtain

the   beneficial       enjoyment     of   her   interest    in   the   property."20

Further, "(h)omestead interests should be protected from forced

sale whenever possible, but not at the expense of others owning

interests in the property."21

      In considering the residence limitation, although one Florida

bankruptcy court has held that a debtor was entitled to a homestead

exemption      in     the   entire   property,     the     majority     of    Florida

bankruptcy courts have held such debtors were not entitled to the

homestead      exemption.      In    finding     the   debtor    entitled      to   the

homestead exemption, the court noted that the debtor used only one

side of a duplex as a residence and used the other side as rental

      18
      Orange Brevard Plumbing & Heating Company v. La Croix, 137
So.2d 201, 203 (Fla.1962); Smith, 42 Fla. at 41, 27 So. at 912.
      19
      Palm Beach Savings & Loan Association, F.S.A. v. Fishbein,
619 So.2d 267 (Fla.1993); Orange Brevard Plumbing & Heating
Company, 137 So.2d at 203; Hillsborough Inv. Co. v. Wilcox, 152
Fla. 889, 891, 13 So.2d 448, 450 (1943).
      20
           Tullis v. Tullis, 360 So.2d 375, 377 (Fla.1978).
      21
           Id., 360 So.2d at 378.
property, but utilized a new divisibility test which considered

whether the property was divisible and lawfully conveyable.22    The

court found that the debtor was entitled to the exemption because,

although the property was divisible, portions were not salable

under the existing zoning laws.23    Other Florida bankruptcy courts

have denied exemptions to debtors where the debtors used a building

on the property in which they claimed homestead exemption as both

their residence and as rental property, reasoning that "the mere

fact that the claimant occupies part of the property as a residence

is not enough to entitle him to an exemption in the whole."24

      The majority of Florida bankruptcy courts that have denied a

homestead in the entire property have ruled that where the property

is not divisible, the trustee could sell the property and the court

would apportion the proceeds.25    In In re Baxt, the court held that

because the Florida homestead exemption is for "one-half acre," not

"one-half acre if you live in Parkland (where the property is not

divisible)," allowance of a homestead exemption on a 2.5 acre in a

municipality would be a contravention of the divisibility test.26

     22
      In re Kuver, 70 B.R. 190, 192-913 (Bank.S.D.Fla.1986);      In
re Makarewicz, 126 B.R. 127, 128 (Bank.S.D.Fla.1991).
     23
          In re Kuver, 70 B.R. at 192.
     24
      In re Aliotta, 68 B.R. 281, 282 (Bankr.M.D.Fla.1986);      In
re Rodriguez, 55 B.R. 519 (Bankr.S.D.Fla.1985).
     25
      In re Wierschem, 152 B.R. 345, 347 (Bankr.M.D.Fla.1993)
(holding that rural property that exceeded the residency
limitation was subject to the same administration as In re
Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992)); In re Baxt, 188
B.R. 322, 323-324 (Bankr.S.D.Fla.1995) (finding appropriate the
sale of an urban indivisible 2.5 acre lot, and apportionment of
the proceeds).
     26
          188 B.R. at 323-324.
Florida courts have extended the homestead exception to include the

proceeds of a voluntary sale when it is intended in good faith that

such proceeds are to be reinvested in a new homestead and only as

to the amount of the proceeds which are intended to be reinvested

in another homestead.27

       Bankruptcy courts in other states have similarly ordered the

sale and apportionment of proceeds.                  In In re Evans, the Vermont

bankruptcy court found the sale and apportionment of the proceeds

"an equitable solution of the existing problem" to a homestead

exemption claim where the property exceeded the state's $30,000
                                      28
limitation on a homestead.                     The   Eighth    Circuit      affirmed    a

bankruptcy        court's    order        of   the   sale     of    a     property    and

apportionment of the proceeds in a situation where the property

exceeded the state homestead limitation on area, finding that the

apportionment allowed an appropriate recognition of the debtor's

homestead        exemption    and     yet        afforded     the       creditors    some

satisfaction of their rightful claims.29

                                     CONCLUSION

       Here, the debtors' claimed homestead property exceeds the

limitation       on   area   set     by    the    Florida     constitution      and    is

indivisible.          A sale and apportionment of the proceeds is an

equitable solution, allows for an appropriate recognition of the

debtors' homestead exemption, and will afford the creditors some


       27
            Orange Brevard Plumbing & Heating Company, 137 So.2d at
206.
       28
            51 B.R. 47, 50 (Bankr.D.Vt.1985).
       29
            O'Brien v. Heggen, 705 F.2d 1001, 1004 (8th Cir.1983).
satisfaction of their rightful claims.   Therefore, the judgment of

the district court is AFFIRMED.
