        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      CARYN HALL YOST-RUDGE,
                             Appellant,

                                    v.

             A TO Z PROPERTIES, INC., a Florida Corporation,
                             Appellee.

                             No. 4D17-3204

                           [February 6, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Barbara W. Bronis, Judge; L.T. Case No.
432016CA000484.

   Caryn Hall Yost-Rudge, Stuart, pro se.

   Alexander D. Gonano of Gonano & Harrell, Fort Pierce, for appellee.

LEVINE, J.

   One of the hallmarks of the Florida Constitution is the provision
protecting the familial home by enforcement of homestead protections in
article X, section 4 of the Florida Constitution. That provision provides
that a married owner of homestead real estate may alienate the homestead
by sale only if joined by the spouse. Fla. Const. art. X, § 4(2)(c).

    In this case, the husband sold the property, claimed by appellant
(“wife”) to be protected by homestead, without the wife’s agreement or
signature on the warranty deed. Appellee (“buyer”) claims that municipal
violations regarding the safety of that property resulted in an injunction
prohibiting the wife and her husband from occupying the property which,
in turn, resulted in their abandonment of the property. The buyer claims
further that if the property was abandoned, then the property lost its
homestead protection, obviating the buyer’s need to obtain the wife’s
written consent to her husband’s sale of the property.

   We find, consistent with the Florida Constitution, that the wife must
agree to the sale of the property and that her being prevented from
returning to the property due to an injunction for municipal violations was
not an abandonment that destroyed the homestead protections of the
property. We find the trial court erred in granting partial summary
judgment and finding that the wife had no homestead interest in the
property sold by the husband without her consent. We therefore reverse.

   The wife lived on the property at issue with her husband until March
2010. 1 On March 5, 2010, after a series of code compliance issues with
the City of Stuart and Martin County deeming the property unsafe, the
wife and her family were ordered by a court to vacate the property and
enjoined from occupying or residing on it. They complied and never
resumed residence on the property, instead living in rented residences or
staying with friends. Eventually, the government cleared debris and
certain structures from the property.

   In March 2015, the wife’s husband sold the property to the buyer and
Capital C, Inc., who later quit-claimed its interest to the buyer. The wife
was not a party to the warranty deed. The buyer then filed a complaint to
quiet title and for relief declaring that the wife and her husband had no
homestead interest in the property.

   The wife, pro se, answered the complaint, asserting that the transfer
was legally insufficient without her signature due to her continuing
homestead interest in the property. She generally alleged that she
maintained an intent to return to the property and had been trying over
the course of several years to return it to habitable condition. The wife
concluded that because she intended to return and never claimed another
homestead, the property remained her homestead even in her absence.
When the buyer moved for partial summary judgment on its claim as to
the wife, the wife responded by again denying abandonment of the
property.

   After a hearing on the summary judgment motion, the trial court
entered partial final summary judgment in favor of the buyer. In doing so,
it noted that the wife had failed to file any affidavits in opposition to
summary judgment and had not raised any affirmative defenses in her
answer. The court ruled that, at the time of the sale to the buyer, the
property was not the homestead of the wife or her husband, so the buyer
acquired the property free and clear as a result of the husband’s sale. This

1 The wife and her husband lived together in their home on the property for
several years before legally marrying in August 2010. The record reflects that
this home was still standing at and after the date of the marriage despite the
family having vacated the property in March 2010.


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appeal follows.

    We review an order granting summary judgment de novo. Volusia Cty.
v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
Summary judgment is proper only where there is no genuine issue of
material fact and the moving party is entitled to a judgment as a matter of
law. Id. The party seeking summary judgment is required to present
competent evidence demonstrating the non-existence of any material issue
of fact. Bratt ex rel. Bratt v. Laskas, 845 So. 2d 964, 966 (Fla. 4th DCA
2003). At the summary judgment stage, all doubts are resolved against
the moving party. Id.

    Article X, section 4 of the Florida Constitution applies homestead
protection “to the residence of the owner or the owner’s family.” Fla.
Const., art. X, § 4(a)(1). As a result, the married owner of a homestead
property may not alienate the property without joinder or consent of his or
her spouse. Vera v. Wells Fargo Bank, N.A., 178 So. 3d 517, 519 n.1 (Fla.
4th DCA 2015). The protections of homestead are limited to the residence
of the owner and generally require the owner’s occupancy of the home with
the intent to remain there. Law v. Law, 738 So. 2d 522, 524 (Fla. 4th DCA
1999).

       The homestead is accorded special status under Florida law and, as
such, the Florida Constitution’s homestead provisions are construed
liberally. See JBK Assocs. v. Sill Bros., Inc., 160 So. 3d 94, 96 (Fla. 4th
DCA 2015) (“Homestead exemption laws should be liberally applied to the
end that the family shall have shelter and shall not be reduced to absolute
destitution.”) (quoting Orange Brevard Plumbing & Heating Co. v. La Croix,
137 So. 2d 201, 204 (Fla. 1962)).

   It is clear, however, that once homestead is established, it still can be
lost due to abandonment. “Once homestead status is acquired, it
continues until the homestead is abandoned or alienated in the manner
provided by law. To show abandonment, both the owner and his family
must have abandoned the property.” Coy v. Mango Bay Prop. and Invs.,
Inc., 963 So. 2d 873, 878 (Fla. 4th DCA 2007) (citation omitted).
Consistent with the special status of Florida homestead, a finding of
abandonment requires a “strong showing” of intent not to return to the
homestead. In re Herr, 197 B.R. 939, 941 (Bankr. S.D. Fla. 1996).

   Whether a property has been abandoned and thus lost its homestead
protections is determined, case by case, in light of the totality of
circumstances. Beensen v. Burgess, 218 So. 2d 517, 519 (Fla. 4th DCA
1969). Only in light of the totality of circumstances, with all doubts

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resolved against the moving party, can it be determined that the owner
has abandoned the property and abandoned its homestead protections.

   Florida courts have consistently held that a property is not abandoned
for the purposes of homestead protection when the owner involuntarily
ceases to reside on the property. In re Estate of Melisi, 440 So. 2d 584,
585 (Fla. 4th DCA 1983). For example, the Florida Supreme Court held in
Stokes v. Whidden, 122 So. 566 (Fla. 1929), that a homestead was not
abandoned even though the owner of the property had been adjudged
insane and committed to a state institution. In that case, unlike this one,
the owner’s family continued to live on the property. Id. at 566; see also
Dean v. Heimbach, 409 So. 2d 157 (Fla. 1st DCA 1982) (finding homestead
not abandoned when father had to leave county as condition of bail but
intended to return and family continued to live on property).

   Still, courts have also upheld homestead protections even when a
property has been left completely unoccupied, as is the case here. One
such case is Crain v. Putnam, 687 So. 2d 1325 (Fla. 4th DCA 1997). There,
the homeowner had been absent from the homestead property for around
two years after being placed in a nursing home in a vegetative state;
nothing was done with the property during this period. Id. at 1326.
However, the homeowner’s furniture, clothing, and most of her
possessions remained on the property, she received mail at the property,
and, given her condition, she could not “communicate any intention
regarding her residence” or her plans to maintain it as a homestead. Id.
This court was asked to determine whether the article VII homestead tax
exemption still applied to the property in light of this absence. Id. We
concluded that, under the circumstances, the property retained its
homestead character. Id. In doing so, we noted that Florida’s homestead
protections are not subject to a physical presence requirement, nor are
they forfeited when a homeowner involuntarily changes his or her
residence. Id.

   Another factually similar and persuasive case is In re Herr. In Herr, the
owner’s home was destroyed by a hurricane and the property was rendered
uninhabitable after the city demolished the remaining structures on the
property. 197 B.R. at 941. The property languished for three years
without any action by the debtor, but the debtor maintained that he was
planning on selling the property and using the proceeds to purchase a new
homestead. Id. Because Florida law requires a “strong showing of a
debtor’s intent not to return to his residence” before the homestead can be
considered abandoned, the court held that the property retained its
homestead protections. Id.


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    In re Gaines, No. 05-14608, 2007 WL 1228157 (Bankr. M.D. Fla. Apr.
18, 2007), where evidence of homestead intent was lacking, is
distinguishable from this case. There, the court concluded that the
property was not a homestead where the owner was absent, failed to
present any evidence that he actually intended to reoccupy the property,
and could not provide factual support as to why he left the property for
five years. This is unlike the present case, where the wife provided evidence
of ongoing litigation to preserve the property or be able to return to it.

    Here, the trial court decided the homestead issue on summary
judgment. As discussed above, abandonment turns on intent and is
necessarily a fact-intensive inquiry. See Beensen, 218 So. 2d at 519 (“The
question of whether there has been an abandonment of a homestead so as
to deprive it of its status as such under the constitution should be
determined by consideration of all of the pertinent facts and circumstances
of each case.”). The information available to the court at summary
judgment gave rise to a genuine issue of material fact. Although the wife
did not submit an affidavit in response to the motion for summary
judgment or raise affirmative defenses, she did affirmatively deny the
allegations of the complaint. Further, the record does contain some
evidence indicating there was a conflict of material fact as to whether the
wife abandoned the property.

   For one, the wife maintained in her answer that the family was
involuntarily “forced off” the property and generally asserted a continuing
homestead interest in the property. Additionally, the wife attached to her
answer in denial evidence indicating that, after being removed from the
property, she was making efforts to remediate it with the intention of
returning. These attachments included a 2011 letter from an engineering
consultant reflecting that the husband had the property inspected in June
2010 for structural issues with the home. Another 2011 letter indicated
that the husband tried to contact the city commission regarding his
attempts to bring the property up to code and to “determine the facts
concerning my building, on my property.” Further, an invoice indicated
that the husband paid for waste disposal on the property as late as
January 2011. Finally, numerous court filings from the wife indicated that
she was fighting to retain the property until at least 2012, supporting her
argument that she did not intend to abandon the property.

    The trial court erred in granting summary judgment, since the
question of the wife’s intent relating to the alleged abandonment of the
homestead was still in dispute. Viewing the facts in the light most
favorable to the wife, the non-movant, genuine issues existed as to her
intent to abandon the property or retain the property as her homestead.

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In the face of such issues of material fact, it was error to enter summary
judgment against her. See Bratt, 845 So. 2d at 966.

   In conclusion, due to the material conflict of facts and the special status
accorded to the protection of the homestead property, we reverse and
remand for further proceedings consistent with this opinion.

   Reversed and remanded for further proceedings.

WARNER and CIKLIN, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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