GERTRUDE BERGER AND HOWARD BERGER, APPELLANTS,
v.
ROBERT L. LEWISON, AS TRUSTEE, APPELLEE
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Gertrude Berger and her husband Howard appealed a mortgage foreclosure judgment on a condominium unit. The court affirmed the foreclosure, holding that the condominium was not a homestead estate because neither title owner was the 'head of the family' as required by the Florida Constitution, and therefore Howard's joinder in the mortgage was not constitutionally required.
The condominium was not a homestead estate because neither title owner was the 'head of the family' as constitutionally required. Therefore, Howard Berger's joinder in the mortgage was not constitutionally required, the motion to dismiss was properly denied, intervention was properly refused, and the foreclosure judgment was proper.
[1] Property is not a homestead estate under Article X, Section 4(a)(1) of the Florida Constitution unless a title owner is the head of the family.
[2] A spouse's joinder in a conveyance of real estate is constitutionally required only if the property is homestead real estate.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the subject condominium unit was not a homestead estate under Article X, Section 4(a)(1) of the Florida Constitution (1968), because neither of the title owners of this unit, Gertrude Berger and her daughter Ina Felder, was the 'head of the family'”
Establishes the core holding that homestead status requires the head of family to be a title owner
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Join FLexlaw to unlock all legal intelligenceGertrude Berger and her daughter Ina Felder were the title owners of a condominium unit in which Gertrude and her husband Howard resided. The property…
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PER CURIAM.
This is an appeal by the mortgagor Gertrude Berger and her attempted-intervenor husband Howard Berger from an adverse final judgment of mortgage foreclosure involving a condominium unit in which Mr. and Mrs. Berger resided. We affirm based on the following, briefly stated legal analysis.
First, the subject condominium unit was not a homestead estate under Article X, Section 4(a)(1) of the Florida Constitution (1968), because neither of the title owners of this unit, Gertrude Berger and her daughter Ina Felder, was the “head of the family” as required by the above constitutional provision in order for property to constitute a homestead estate.1 Without dispute, Howard Berger was the “head of the family” within the meaning of the above constitutional provision, and he was not, as urged, the owner of the subject condominium unit; his affidavit filed below claiming a beneficial interest in the property was properly struck by the trial court as being contrary to his deposition testimony. See Ellison v. Anderson, 74 So. 2d 680 (Fla.1964); Elison v. Goodman, 395 So. 2d 1201, 1202 (Fla. 3d DCA 1981); Inman v. Club On Sailboat Key, Inc., 342 So. 2d 1069, 1070 (Fla. 3d DCA 1977); Kramer v. Landau, 113 So. 2d 756, 758 (Fla. 3d DCA 1959). Second, this being so, Gertrude and Ina Felder properly alienated the condominium unit by placing a mortgage thereon. It was unnecessary for Howard Berger, as Gertrude's spouse, to have joined in this conveyance under Article X, Section 4(c) of the Florida Constitution (1968 as amended 1972), because (a) such a joinder with the owner is constitutionally required only as to “homestead real estate,” and, (b) as previously indicated, the instant condominium unit was not a homestead estate. Holden v. Gardner’s Estate, 420 So. 2d 1082 (Fla.1982); Jones v. Federal Farm Mortgage Corp., 138 Fla. 65, 188 So. 804 (1939); Abernathy v. Gruppo, 119 So. 2d 398 (Fla. 3d DCA 1960); Anderson v. Garber, 183 So. 2d 693 (Fla. 3d DCA 1966), cert. denied, 188 So. 2d 820 (Fla.), appeal dismissed, 189 So. 2d 631 (Fla.1966).
Third, it accordingly follows that no error was committed below in denying Gertrude Berger’s motion to dismiss, in refusing to allow Howard Berger to intervene, in entering a partial judgment on Gertrude Berger’s homestead defense, and in striking Howard Berger’s affidavit. The final judgment under review is, in all respects,
Affirmed.
. The 1985 amendment to the above constitutional provision, which substituted "natural person" for "head of the family,” has no application to this case because the. mortage at issue herein was executed prior to the said 1985 amendment. Art. X, § 4(a)(1), Fla. Const. (1968 as amended 1985).
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DeCOSMO v. Taffi Fisher, 683 So. 2d 659 (Fla. 5th DCA 1996)…, depositions or testimony in order to defeat a summary judgment. Boyd v. International Fidelity Insurance Company, 412 So. 2d 944 (Fla. 3d DCA 1982); Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977). Accord Berger v. Lewison, 521 So. 2d 311 [*661] (Fla. 3d DCA 1988); Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981). Accordingly, the order of the trial court entering summary judgment in favor of Taffi Fisher is affirmed because DeCosmo failed to introduce any evidence to contradic…
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Brunette v. Glendale Fed. Bank, 632 So. 2d 1150 (Fla. 3d DCA 1994)…PER CURIAM. Affirmed. Moore v. Morris, 475 So. 2d 666 (Fla.1985); Cappello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993); Berger v. Lewison, 521 So. 2d 311 (Fla. 3d DCA 1988); McCarty v. Dade Div. of American Hosp. Supply, 360 So. 2d 436, 438 (Fla. 3d DCA 1978); Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Reflex, N.V. v. Umet Trust, 336 So. 2d 473 (Fla. 3d DCA 1976); Ham v.…
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Isaacs v. Fed. Nat'l Mortg. Ass'n (Fla. 3d DCA 2022)…esvarieux, 467 So. 2d 1090, 1091 n.1 (Fla. 3d DCA 1985). Thus, if a married owner was not the head of his or her family, the property did not qualify as homestead and could have been alienated without the spouse’s joinder. See Berger v. Lewison, 521 So. 2d 311, 311 (Fla. 3d DCA 1988) (holding that husband’s joinder in conveyance of his wife’s condominium to third party was unnecessary because condominium in which husband and wife resided did not constitute homestead within meaning of section (4)(a) as…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Ellison v. Johnson Anderson, 74 So. 2d 680 (Fla. 1954)
- Inman v. The Club ON Sailboat KEY, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977)
- Holden v. Est. OF Mary Lee Gardner, 420 So. 2d 1082 (Fla. 1982)
- Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981)
- Kramer v. Landau, 113 So. 2d 756 (Fla. 3d DCA 1959)
- Anderson v. Garber, 188 So. 2d 820 (Fla. 1966)
- Jones v. Fed. Farm Mortg. Corp., 138 Fla. 65 (Fla. 1939)
- Lucile A. Anderson v. Garber, 183 So. 2d 693 (Fla. 3d DCA 1966)
- Abernathy v. Gruppo, 119 So. 2d 398 (Fla. 3d DCA 1960)
- Kidwell v. Redman, 189 So. 2d 631 (Fla. 1966)