Bernhard Law Firm successfully obtained summary judgment in a highly contested declaratory action to determine the waiver of constitutional homestead rights on real estate in Miami’s developing Design District. Bernhard Law Firm represents a Miami real estate developer who contracted for the property. See the order here: ord-grant-summ-jud-dec-redact-9-13-16_redacted. (Florida Bar disclaimer: results may not be typical. You may not have as beneficial a result). If you have any questions on homestead exemptions or disputes on real estate closings, please contact Bernhard Law Firm at 786-871-3349 or firstname.lastname@example.org.
As garnered from the public pleadings, Bernhard Law Firm filed suit for the developer against real estate sellers for breach of the contract for sale of real property, and for declaration of homestead waiver and non-homestead status for the property. The developer contracted with sellers for purchase of a Design District lot and structure in the exploding 42nd Street area of the Design District. Sellers drafted a contract providing that upon the developer’s delivery of deposit, the sellers would enter closing to transfer clear title to the property. All agreed and signed. The developer transferred the deposit and readied the full purchase price for exchange of the deed, but the sellers refused to close, demanding a higher purchase price in the over-leveraged market. After the developer’s repeated requests for closing, the sellers stopped communication.
Bernhard Law Firm filed suit on behalf of the developer, seeking enforcement of the sales contract or damages for lost investment. To forestall the sale, the sellers raised the constitutional homestead exemption from a prior but related owner. Bernhard Law Firm sought the Court’s declaration that the sellers and prior owner expressly waived constitutional homestead rights prohibiting devise and alienation without joinder. Bernhard Law Firm raised Florida law holding that by inclusion of waiver language in a deed, a spouse waives all constitutional homestead rights, under Stone v. Stone, 157 So. 3d 295, 304 (Fla. 4th DCA 2014) (“We agree with the trial court that this [language in a deed] constituted a waiver of any constitutional homestead rights”), and § 732.702, Fla. Stat. (2015) (waiver of spousal rights). The sellers also sought summary judgment, arguing competing case law. This week, after a hotly contested special set hearing, the Miami-Dade Circuit Court agreed with Bernhard Law Firm, granting summary judgment in its favor, and declaring that the sellers and prior owner had waived constitutional homestead restrictions to sale. The declaratory judgment allows the sale to proceed with title insurance.