Overstreet v. Tubin

• Decision Date: 03 July 1951
• Citation: 53 So.2d 913
• Parties: OVERSTREET et al. v. TUBIN et ux.
• Court: Florida Supreme Court

Page 913

53 So.2d 913

OVERSTREET et al. v. TUBIN et ux.

Supreme Court of Florida, Division B.

July 3, 1951.

Rehearing Denied Sept. 6, 1951.

Weintraub, Martin & Schwartz, Miami, for appellant Earnest overstreet.

Worley & Gautier, Miami, for appellant J. N. Lummus, Jr.

Hudson & Cason, Miami, for appellant Clarence M. Gay.

Hymen Lake, Miami Beach, for appellee Arthur I. Tubin.

Irving Cypen, Miami Beach, for appellee John Gross et ux.

ROBERTS, Justice.

The question presented calls for an interpretation of Section 7 of Article 10 of the Constitution, F.S.A., of this state, relating to the exemption of homesteads from taxation, and is stated by appellant as follows: 'Under the provisions of Article 10, Section 7, Constitution of Florida, and 192.12 Florida Statutes [F.S.A.], is each unit of a duplex, or two-family structure, the ownership of which structure is in two parties, each owning a divided one-half of said structure, entitled to homestead exemption to the full extent of $5,000.00?'

Section 7 of Article 10 exempts homesteads up to the assessed valuation of $5,000.00 from all taxation, except for assessments for special benefits. It is further provided therein that 'Said title may be held by the entireties, jointly or in common with others, and said exemption may be apportioned among such of the owners as shall reside thereon, as their respective interests shall appear, but no such exemption of more than Five Thousand Dollars shall be allowed to any one person or any one dwelling house, nor shall the amount of the exemption allowed any person exceed the proportionate assessed valuation based on the interest owned by such person.' (The emphasis is supplied). The real property constituting a homestead is limited to one hundred and sixty acres of land and the improvements thereon, or the half of one acre within the limits of any incorporated city or town, including such improvements thereon as constitute the residence and business house of the owner. Section 1 of Article 10, Constitution of Florida.

The structures here involved are so-called 'duplex' or two-family dwellings, each unit being owned in fee simple by separate owners, having separate plumbing and electrical wiring, separate entrances and walkways, and being connected only by an eight-inch party wall. They are situated in an area within the City of Miami in which a two-family dwelling is permitted under the city's zoning laws; each separate unit could not, however, qualify as a one-family dwelling under such laws because of the lack of sufficient square footage in each separate lot and because of the inability to comply with the requirement of the zoning ordinance that there must be a side yard of five feet on both sides of a one-family dwelling.

The determination of the question here presented has not been an easy one, involving as it does a conflict between the benevolent policy of this state towards homesteads, on the one hand, and the obligation of the home owner to contribute his fair share towards the support of his government to whose protection he must look for the full enjoyment of his home, on the other hand. In our efforts to reach a reasonable and just decision, we have looked into the laws of other states respecting the exemption of homesteads from taxation. Our research, using source material immediately available, reveals that, with but few exceptions, the homestead exemption laws of other states exclude taxes from the effect of the exemption provision. As stated by Waples in his work on 'Homestead and Exemption,' 'Different terms are used, in different state statutes, to save the tax-claim from the effect of the exemption provision, but they are all meant to leave the remedy for the collection of taxes untouched, and they all have the same reason underlying them. The reason is that revenue must be had for the support of the state, the county or the municipality laying the assessment, and that property is the source when such revenue should be derived; and that, since homesteads are protected by the state and minor governments, they should bear their proportion of the burden, since there is no danger that a tax, which is never more than a small percentage of the property value, need ever deprive the owner of his home and leave his family shelterless.'

Of those states which do exempt homesteads from taxation, it appears that only one other (Mississippi) exempts as much as $5,000 of the assessed valuation of the homestead from taxation. Thus, in Alabama and in Arkansas, the exemption is only $2,000 and is only from state ad valorem taxes, Alabama Code of 1940: Title 51, Section 15; Arkansas Statutes 1947: Title 84, Section 208; Michigan exempts homesteads of veterans, and the unmarried widows of veterans, up to...