In short: In Law v. Law, 163 So. 3d 553 (Fla. 3d DCA 2015), the husband’s foreclosure-defense firm tried to take its unpaid fee out of the escrowed proceeds from selling the marital homestead. The court held the claim had no basis, because a husband cannot waive homestead protection in a fee agreement and the wife never signed. The firm owed her § 57.105 fees.
The Facts
The couple were married about 27 years. Their Marathon home was titled in the husband’s name alone and was undisputedly their homestead. Both signed the mortgage, but only he signed the note.
After default and foreclosure, the husband hired a firm on a $1,500 retainer plus $250 a month. The agreement let the firm act as closing agent and collect any fee shortfall from sale proceeds.
The wife filed for divorce in 2011 and sought partition. Just before the sale in late 2012, she obtained an order putting the net proceeds, $33,511.54, in escrow.
The firm intervened to collect $9,473.27 from the escrow. A special magistrate awarded the wife the entire fund, and the court later found the firm had no basis for its claim.
The wife sought about $16,800 in fees under § 57.105. The trial court denied it, finding the firm acted in good faith.
The Decision
The Third District Court of Appeal reversed and remanded for an award of § 57.105 fees to the wife against the firm (Case No. 3D14-911, April 1, 2015; opinion by Judge Wells).
Under the Florida Supreme Court’s decision in Chames v. DeMayo, a homeowner cannot waive homestead protection against a creditor in an unsecured fee agreement. The wife had her own protected homestead interest even though she was not on title, and she never signed the agreement.
Once the trial court awarded all the proceeds to her, there was no legal or factual support for the firm to keep pursuing the money. Denying sanctions was error. In a footnote the court said it saw no reason a non-titled spouse could not claim homestead protection over sale proceeds, without deciding the point.
The Law
Article X, § 4 of the Florida Constitution protects homestead from forced sale and most liens. Under Orange Brevard Plumbing & Heating Co. v. La Croix, proceeds from a voluntary sale keep that protection if the owner intends in good faith to reinvest in a new homestead within a reasonable time and keeps the money separate.
Section 57.105(1) requires fees when a party or its lawyer knew or should have known a claim or defense was unsupported by the facts or the law.
Lessons
- A lawyer’s fee agreement signed by one spouse does not reach homestead proceeds the other spouse is entitled to.
- Getting sale proceeds into escrow early protects them while ownership is decided.
- Section 57.105 cuts both ways. Pressing a claim after the facts and law turn against you can cost the other side’s fees.
- Homestead protection follows the money into sale proceeds, which matters in divorce, probate and creditor fights.
Source: Opinion, Law v. Law, 163 So. 3d 553 (Fla. 3d DCA 2015)
Watch the Oral Argument
This is the recording of the oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
The Husband Hired the Foreclosure Lawyers, the Wife Defaulted: Whose Homestead Proceeds? | Law v. Law, 3D14-0911
Go Deeper
- Purge Paid, But Homestead Still Ordered Sold for Child Support? (Pacin v. Granja)
- Divorce Deal vs. Survivorship: Who Gets Joint Property When an Ex Dies? (Ebanks v. Ebanks)
- Testamentary Capacity in Florida: When Dementia Makes a Will, Deed, or POA Invalid
Frequently Asked Questions
Can a lawyer take their fee from homestead sale proceeds in Florida?
Generally not by an unsecured fee agreement. Chames v. DeMayo holds homestead protection cannot be waived that way, and Law v. Law applied that to escrowed sale proceeds.
Are homestead sale proceeds protected from creditors?
Yes, if the owner intends in good faith to reinvest in a new homestead within a reasonable time and keeps the funds separate.
Does a spouse not on title have homestead rights?
A spouse who lives in the homestead has constitutional protections even if not on the deed, as Law v. Law recognized.
What is a § 57.105 fee award?
A sanction requiring a party or lawyer to pay the other side’s fees for pursuing a claim unsupported by the material facts or the law.
Talk to a Florida homestead and probate lawyer
Weidner Law, P.A. handles Florida homestead, probate and real estate disputes from St. Petersburg. If you need a probate real estate lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
