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Florida Homestead Services - Florida Homestead Exemption Act Forum / Florida Exemptions, Laws and Statutes /
Florida Constitutional Homestead Law Outline #1 | Posted: 26 Dec 2006 21:00
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Florida Constitutional Law Outline
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Homestead • Homestead: The Florida Constitution (F.C.) protects homestead property from levy by creditors of the owner. It also restrains voluntary conveyances of the property away from the spouse and devise of the property away from the spouse of minor child. Natural persons may claim homestead. The homestead must be established before the levy of the judgment creditor. Homestead subject to forced sales for property taxes, mortgages on the property, and mechanic liens arising from improvements to property. Homestead inures to the benefit of the surviving spouse and minor children. Homestead is 1/2 acre of contiguous land including a residence within a municipality. Outside of a municipality may claim up to 160 contiguous acres If homestead is sold, the proceeds are considered to retain homestead exemption provided owner has good faith intent to reinvest the proceeds in another homestead within a reasonable time. • Abandonment: If homestead is abandoned, the protection may be forfeited. • Restraint on Devise: The F.C. restrains devise of solely owned homestead property if there are minor children. Devise fails and intestate succession applied: life estate to spouse, remainder to children. If there is a surviving spouse, the homestead must be devised to the spouse. Otherwise, devise fails, and spouse receives life estate remainder to lineal descendants. Spouse can waive homestead tights by an Ante-nuptial Agreement. Unconstitutional Statutes • Unconstitutional Statutes: FL Const. requires that statutes cannot be vague or over-broad, and they should be reasonably related to public purpose. Procedural requirement are that the statute must be limited to single subject, must have adequate title, must be set out, and must have enacting clause. Bills of Attainder, Ex Post Facto laws, and laws impairing the obligation of contract are unconstitutional. • General Laws: Apply uniformly throughout the state. Special laws refer to specific persons, places, or things. For enactment of a special law, notice of intention to seek its enactment must be published in a local newspaper or there must be approval by referendum vote of the electors. • Access to Courts: The F.C. provides that the courts are open to every person for redress to injury. If the legislature abolishes a cause of action, a reasonable alternative must be provided unless the legislature can show a compelling public necessity or no alternative method can be established. • Separation of Powers: Encroachment occurs when one branch of government usurps the function of another branch. For example, when the Legislature passes statutes which change judicial procedural rules. Unauthorized delegation of legislative power occurs when the legislature delegates the power to make law or fundamental policy decisions. For example, when congress gave the president the line item veto. • Equal Protection Clause is similar to the federal laws. The strict scrutiny test is applied to laws affecting fundamental rights and protected classes. Strict scrutiny requires the state to show a compelling state interest. The rational relationship test requires that the plaintiff show that the law is not rationally related to a legitimate state purpose. • Due Process: Procedural due process requires the state to act fairly when the government is depriving a person of property or liberty. Examples notice, fair trial, etc. Substantive due process concerns fundamental rights. The state must pass the strict scrutiny test to interfere with fundamental rights contained in the U.S. and Florida Constitutions. • Sunshine Law: Every person has a right to access public records and meetings of the state and local government. The legislature may provide exemptions by stating a public necessity justifying the exception so long as the law is no broader than is necessary to accomplish the stated purpose. • Privacy: The F.C. expressly provides a right of privacy. Every natural person has the right to be let alone and free from governmental intrusion into his/her private life. Florida's privacy right is considered to be more protective than the federal right. Other Topics • Finance: General Obligations Bonds are issued by the state or its subdivisions in order to finance capital projects for a public purpose. Because the taxing power of the state is being used, there must be authority to issue the bonds as well as approval by the voters. Revenue bonds are issued for traditional municipal purposes and are secured by the revenue of the project e.g. toll bridge. A referendum is not needed for approval of the bonds. • Sovereign Immunity • Jurisdiction of Court • Eminent Domain and Regulatory Takings Contract Essay • Repeat question asked by examiners. • Write: "In order to have an enforceable contract, there must be an offer, acceptance, consideration, and no valid defenses to the contract." • Definitions A. offer: an invitation to enter into a contract. Identify facts that constitute offer. B. acceptance: a manifestation of intent to enter into an agreement. Identify facts. C. consideration: a bargained for exchange or a detrimental reliance upon a promise made by a party to the contract. Identify facts. • Defenses A. The elements of contract are not satisfied, e.g. illusory K. A condition precedent has not been satisfied. B. Statute of Frauds: A K. for the sale of land must be in writing, contain a legal description of the land, value to be paid, signatures of both parties, and signatures of two attesting witnesses. C. Incapacity to Contract: age, mental capacity, etc. D. Impossibility or impracticability: Act of God, frustration of K., etc. E. Mistake of Fact: mutual mistake, then no enforceable K. Unilateral mistake K. will be enforced unless unconscionable or the other party knew or should have known of the mistake. F. Illegality or unclean hands doctrine: A K. may not be enforced if the K is for an illegal purpose or if the party seeking redress committed a dishonest or unethical act in performing the K. G. Unconscionable: If a K is too one-sided, a court may not enforce it. • Material v. Minor Breach: A material breach excuses non-breaching party from performance. A Minor breach is substantial performance of contract and may entitle the nonbreaching party to legal or equitable remedies. Determination by the trier of fact that a party has negotiated or performed a K. in bad faith is considered a material breach. • Remedies: Write that P. must mitigate damages. Discuss whether the remedy of specific performance is appropriate If not, discuss compensatory damages and expectation damages such as actual, consequential, and incidental damages. • Promissory Estoppel: A promise is made by a party, a party to the K. reasonably relies on the promise to her detriment, and she suffers a legal detriment (e.g. monetary damages) based upon her reliance on the promise. Identify the facts. The remedy is Restitution or Reliance damages. http://www.floridahomesteadservices.com
Florida Homestead Services - Florida Homestead Exemption Act Forum / Florida Exemptions, Laws and Statutes / Florida Constitutional Homestead Law Outline
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