HEINRICH BUETTNER, APPELLANT,
v.
JOEL FASS, PERSONAL REPRESENTATIVE OF THE ESTATE OF LUISE BUETTNER, APPELLEE
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The court held that an eviction order was fundamentally erroneous on its face because it purported to evict the appellant from property already determined to be his homestead, which was not part of the decedent's estate.
The appellant, son of the deceased, was determined to have inherited two units of an apartment complex as homestead property. He also appealed an orde…
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We affirm the trial court’s order determining that two units in an apartment complex owned by the deceased constituted her homestead and passed to appellant, her son, in accordance with constitutional provisions. Appellant’s claim that the court should have included another two units as homestead is a factual determination, and appellant has failed to supply a record or transcript for this court to review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).
Appellant also appeals an order evicting him from the entire premises of the apartment building and directing the personal representative to recover possession of the entire premises. Although no transcript is provided, and the appellant failed to appear at the hearing on the eviction, the order is fundamentally erroneous on its face in that it purports to evict appellant from the homestead premises and place them in the possession of the personal representative. As the court had already determined that the property was homestead, and thus not part of the decedent’s estate, the personal representative had no possessory interest in it. See Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009); Harrell v. Snyder, 913 So.2d 749 (Fla. 5th DCA 2005).
We reverse the order of eviction with instructions to modify the order to exclude that portion of the property which the court has already designated as homestead. While the personal representative claims that appellant is thwarting the personal representative’s ability to maintain the remainder of the property, remedies must be sought other than to dispossess appellant from his own property where the personal representative has no ownership interest in the homestead. See, e.g., Wescott v. Wescott, 487 So.2d 1099 (Fla. 5th DCA 1986) (holding that husband could seek partition of property despite wife’s claim of homestead).
WARNER, POLEN and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Wescott v. Wescott, 487 So. 2d 1099 (Fla. 5th DCA 1986)
- Herrilka v. Yates, 13 So. 3d 122 (Fla. 4th DCA 2009)
- Deleana Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005)