tag:blogger.com,1999:blog-15517294.post2134442006065788010..comments2024-03-02T02:56:02.147-05:00Comments on RUBIN ON TAX: 2 WITNESS RULE FOR LEASES [FLORIDA]Charles (Chuck) Rubinhttp://www.blogger.com/profile/07227879267908481649noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-15517294.post-83777005851485010202009-12-09T07:59:47.501-05:002009-12-09T07:59:47.501-05:00For estate planners and probate practitioners, the...For estate planners and probate practitioners, the Estate of Wartels decision should come to mind where a leasehold cooperative is at issue. This form of ownership involves a lease and is codified in Chapter 719, Florida Statutes. Even though every real estate attorney I know says an interest in a leasehold cooperative is an interest in real estate, the Florida Supreme Court in 1979 said a 99 year lease is not an interest in land for purposes of the restrictions on devise in Article X, section 4. (In re Estate of Wartels) The Florida Supreme Court recently accepted jurisdiction, but then dismissed an appeal involving the Third DCA's request that Wartels be reviewed. (Philips v. Hirshon). Although bankruptcy courts and many state courts have applied Article X, section 4 in the context of exemption from creditor claims, many trial courts (and the 2nd DCA in a recent appeal I handled) hold that the exemption from creditor claims ends on the death of the owner and does not apply in the probate/creditor setting, despite the clear language of Article X, section 4(b) and the definition of "protected homestead" in the Probate Code. Under Wartels, it does not matter that the lease interest qualifies as real estate and homestead during the owner's lifetime, the lease term extending beyond the owner's lifetime is stripped of its protected homestead status. It is crucial to know if you are dealing with a leasehold at the planning and administration stages. Thanks for bringing the lease issue to everyone's attention.Jeff Goethehttp://www.barneswalker.comnoreply@blogger.com