DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CARYN HALL YOST-RUDGE,

Appellant,

v.

A TO Z PROPERTIES, INC., a Florida Corporation,

Appellee.

No. 4D17-3204 

[February 6, 2019]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; Barbara W. Bronis, Judge; L.T. Case No. 

432016CA000484.

Caryn Hall Yost-Rudge, Stuart, pro se.

Alexander D. Gonano of Gonano & Harrell, Fort Pierce, for appellee.

LEVINE, J.

One of the hallmarks of the Florida Constitution is the provision 

protecting the familial home by enforcement of homestead protections in 

article X, section 4 of the Florida Constitution. That provision provides 

that a married owner of homestead real estate may alienate the homestead 

by sale only if joined by the spouse. Fla. Const. art. X, § 4(2)(c). 

In this case, the husband sold the property, claimed by appellant 

(“wife”) to be protected by homestead, without the wife’s agreement or 

signature on the warranty deed. Appellee (“buyer”) claims that municipal 

violations regarding the safety of that property resulted in an injunction 

prohibiting the wife and her husband from occupying the property which, 

in turn, resulted in their abandonment of the property. The buyer claims 

further that if the property was abandoned, then the property lost its 

homestead protection, obviating the buyer’s need to obtain the wife’s 

written consent to her husband’s sale of the property. 

We find, consistent with the Florida Constitution, that the wife must 

agree to the sale of the property and that her being prevented from 

returning to the property due to an injunction for municipal violations was 
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not an abandonment that destroyed the homestead protections of the 

property. We find the trial court erred in granting partial summary

judgment and finding that the wife had no homestead interest in the 

property sold by the husband without her consent. We therefore reverse.

The wife lived on the property at issue with her husband until March 

2010.1 On March 5, 2010, after a series of code compliance issues with 

the City of Stuart and Martin County deeming the property unsafe, the 

wife and her family were ordered by a court to vacate the property and 

enjoined from occupying or residing on it. They complied and never 

resumed residence on the property, instead living in rented residences or 

staying with friends. Eventually, the government cleared debris and 

certain structures from the property.

In March 2015, the wife’s husband sold the property to the buyer and 

Capital C, Inc., who later quit-claimed its interest to the buyer. The wife 

was not a party to the warranty deed. The buyer then filed a complaint to 

quiet title and for relief declaring that the wife and her husband had no 

homestead interest in the property. 

The wife, pro se, answered the complaint, asserting that the transfer 

was legally insufficient without her signature due to her continuing 

homestead interest in the property. She generally alleged that she 

maintained an intent to return to the property and had been trying over 

the course of several years to return it to habitable condition. The wife 

concluded that because she intended to return and never claimed another 

homestead, the property remained her homestead even in her absence. 

When the buyer moved for partial summary judgment on its claim as to 

the wife, the wife responded by again denying abandonment of the 

property. 

After a hearing on the summary judgment motion, the trial court 

entered partial final summary judgment in favor of the buyer. In doing so, 

it noted that the wife had failed to file any affidavits in opposition to 

summary judgment and had not raised any affirmative defenses in her 

answer. The court ruled that, at the time of the sale to the buyer, the 

property was not the homestead of the wife or her husband, so the buyer 

acquired the property free and clear as a result of the husband’s sale. This 

1 The wife and her husband lived together in their home on the property for 

several years before legally marrying in August 2010. The record reflects that 

this home was still standing at and after the date of the marriage despite the 

family having vacated the property in March 2010.
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appeal follows. 

We review an order granting summary judgment de novo. Volusia Cty. 

v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). 

Summary judgment is proper only where there is no genuine issue of 

material fact and the moving party is entitled to a judgment as a matter of 

law. Id. The party seeking summary judgment is required to present 

competent evidence demonstrating the non-existence of any material issue 

of fact. Bratt ex rel. Bratt v. Laskas, 845 So. 2d 964, 966 (Fla. 4th DCA 

2003). At the summary judgment stage, all doubts are resolved against 

the moving party. Id.

Article X, section 4 of the Florida Constitution applies homestead 

protection “to the residence of the owner or the owner’s family.” Fla. 

Const., art. X, § 4(a)(1). As a result, the married owner of a homestead 

property may not alienate the property without joinder or consent of his or 

her spouse. Vera v. Wells Fargo Bank, N.A., 178 So. 3d 517, 519 n.1 (Fla. 

4th DCA 2015). The protections of homestead are limited to the residence 

of the owner and generally require the owner’s occupancy of the home with 

the intent to remain there. Law v. Law, 738 So. 2d 522, 524 (Fla. 4th DCA 

1999). 

The homestead is accorded special status under Florida law and, as 

such, the Florida Constitution’s homestead provisions are construed 

liberally. See JBK Assocs. v. Sill Bros., Inc., 160 So. 3d 94, 96 (Fla. 4th 

DCA 2015) (“Homestead exemption laws should be liberally applied to the 

end that the family shall have shelter and shall not be reduced to absolute 

destitution.”) (quoting Orange Brevard Plumbing & Heating Co. v. La Croix, 

137 So. 2d 201, 204 (Fla. 1962)).

It is clear, however, that once homestead is established, it still can be 

lost due to abandonment. “Once homestead status is acquired, it 

continues until the homestead is abandoned or alienated in the manner 

provided by law. To show abandonment, both the owner and his family 

must have abandoned the property.” Coy v. Mango Bay Prop. and Invs., 

Inc., 963 So. 2d 873, 878 (Fla. 4th DCA 2007) (citation omitted). 

Consistent with the special status of Florida homestead, a finding of 

abandonment requires a “strong showing” of intent not to return to the 

homestead. In re Herr, 197 B.R. 939, 941 (Bankr. S.D. Fla. 1996). 

Whether a property has been abandoned and thus lost its homestead 

protections is determined, case by case, in light of the totality of 

circumstances. Beensen v. Burgess, 218 So. 2d 517, 519 (Fla. 4th DCA 

1969). Only in light of the totality of circumstances, with all doubts 
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resolved against the moving party, can it be determined that the owner 

has abandoned the property and abandoned its homestead protections.

Florida courts have consistently held that a property is not abandoned 

for the purposes of homestead protection when the owner involuntarily 

ceases to reside on the property. In re Estate of Melisi, 440 So. 2d 584, 

585 (Fla. 4th DCA 1983). For example, the Florida Supreme Court held in 

Stokes v. Whidden, 122 So. 566 (Fla. 1929), that a homestead was not 

abandoned even though the owner of the property had been adjudged 

insane and committed to a state institution. In that case, unlike this one, 

the owner’s family continued to live on the property. Id. at 566; see also 

Dean v. Heimbach, 409 So. 2d 157 (Fla. 1st DCA 1982) (finding homestead 

not abandoned when father had to leave county as condition of bail but 

intended to return and family continued to live on property). 

Still, courts have also upheld homestead protections even when a 

property has been left completely unoccupied, as is the case here. One 

such case is Crain v. Putnam, 687 So. 2d 1325 (Fla. 4th DCA 1997). There, 

the homeowner had been absent from the homestead property for around 

two years after being placed in a nursing home in a vegetative state; 

nothing was done with the property during this period. Id. at 1326. 

However, the homeowner’s furniture, clothing, and most of her 

possessions remained on the property, she received mail at the property,

and, given her condition, she could not “communicate any intention 

regarding her residence” or her plans to maintain it as a homestead. Id. 

This court was asked to determine whether the article VII homestead tax 

exemption still applied to the property in light of this absence. Id. We 

concluded that, under the circumstances, the property retained its 

homestead character. Id. In doing so, we noted that Florida’s homestead 

protections are not subject to a physical presence requirement, nor are 

they forfeited when a homeowner involuntarily changes his or her 

residence. Id. 

Another factually similar and persuasive case is In re Herr. In Herr, the 

owner’s home was destroyed by a hurricane and the property was rendered 

uninhabitable after the city demolished the remaining structures on the 

property. 197 B.R. at 941. The property languished for three years

without any action by the debtor, but the debtor maintained that he was 

planning on selling the property and using the proceeds to purchase a new

homestead. Id. Because Florida law requires a “strong showing of a 

debtor’s intent not to return to his residence” before the homestead can be 

considered abandoned, the court held that the property retained its 

homestead protections. Id.
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In re Gaines, No. 05-14608, 2007 WL 1228157 (Bankr. M.D. Fla. Apr. 

18, 2007), where evidence of homestead intent was lacking, is 

distinguishable from this case. There, the court concluded that the 

property was not a homestead where the owner was absent, failed to 

present any evidence that he actually intended to reoccupy the property, 

and could not provide factual support as to why he left the property for 

five years. This is unlike the present case, where the wife provided evidence 

of ongoing litigation to preserve the property or be able to return to it. 

Here, the trial court decided the homestead issue on summary 

judgment. As discussed above, abandonment turns on intent and is 

necessarily a fact-intensive inquiry. See Beensen, 218 So. 2d at 519 (“The 

question of whether there has been an abandonment of a homestead so as 

to deprive it of its status as such under the constitution should be 

determined by consideration of all of the pertinent facts and circumstances 

of each case.”). The information available to the court at summary 

judgment gave rise to a genuine issue of material fact. Although the wife 

did not submit an affidavit in response to the motion for summary 

judgment or raise affirmative defenses, she did affirmatively deny the 

allegations of the complaint. Further, the record does contain some 

evidence indicating there was a conflict of material fact as to whether the 

wife abandoned the property. 

For one, the wife maintained in her answer that the family was 

involuntarily “forced off” the property and generally asserted a continuing 

homestead interest in the property. Additionally, the wife attached to her 

answer in denial evidence indicating that, after being removed from the 

property, she was making efforts to remediate it with the intention of 

returning. These attachments included a 2011 letter from an engineering 

consultant reflecting that the husband had the property inspected in June 

2010 for structural issues with the home. Another 2011 letter indicated

that the husband tried to contact the city commission regarding his 

attempts to bring the property up to code and to “determine the facts 

concerning my building, on my property.” Further, an invoice indicated

that the husband paid for waste disposal on the property as late as 

January 2011. Finally, numerous court filings from the wife indicated that 

she was fighting to retain the property until at least 2012, supporting her 

argument that she did not intend to abandon the property. 

The trial court erred in granting summary judgment, since the 

question of the wife’s intent relating to the alleged abandonment of the 

homestead was still in dispute. Viewing the facts in the light most 

favorable to the wife, the non-movant, genuine issues existed as to her 

intent to abandon the property or retain the property as her homestead. 
6

In the face of such issues of material fact, it was error to enter summary 

judgment against her. See Bratt, 845 So. 2d at 966. 

In conclusion, due to the material conflict of facts and the special status 

accorded to the protection of the homestead property, we reverse and 

remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings. 

WARNER and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.