Daily Development for
Friday, January 23, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HOMESTEAD; FORFEITURE: Homestead protection upheld even where proceeds of illegal activity was used to purchase homestead and homestead property could not be forfeited.

Tramel v. Stewart, 697 So.2d 821 (Fla. 1997).

This case follows Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992), in which the Florida court had applied a Florida Constitutional, which prohibits the "forced sale" of homestead property (subject to enumerated exceptions). In Butterworth, the court had held that homestead property could not be forfeited on the grounds that had been used in a criminal activity. Here, the court simply made the logical extension of the ruling to attempts to forfeit homesteads on the grounds that they were acquired with criminal proceeds.

A concurring judge emphasized that he found the result "abhorrent," but unavoidable. The majority as well urged that the Florida Constitutional Revision Commission consider whether the Constitution should be amended, and suggested that, in doing so, the Commission ought to evaluate what percentage of criminal proceeds in the purchase price would be sufficient to render the homestead forfeitable. (Here, a jury had concluded that 100% of the price had been derived from the proceeds of a substantial marijuana growing operation on premises.

Comment: These pages have reported other cases reaching similar results: See, e.g.: Means v. Ten Acres of Land, 877 P.2d 597 (Okla. 1994). (State civil forfeiture law does not support forfeiture of state created homestead rights.) Garden City v. Lot Nine, Block Three, 819 P.2d 1250 (Cal. App. 1991) (State homestead law prevails over state forfeiture law when homestead claimant is not involved in the conviction.)

The argument doesn't work versus federal forfeiture laws, however. Courts have found them preemptive of state constitutional homestead protections. See: United States v. Lot 5, Fox Grove, Alachua County, Florida, 23 F.3d 359 (11 Cir. 1994). (Federal civil forfeiture law does preempt local homestead law and permits forfeiture of homestead interests. The case indicates it is the first case on this issue decided at the Federal Circuit court level, but cites several parallel holdings at the Federal District Court level.) A dissenter in the Florida case cited decisions in other jurisdictions that he contended support application of forfeiture laws notwithstanding Constitutional homestead protections. None of these cases involve homestead provisions in the state constitutions, but rather only the interpretation of homestead statutes. Obviously, it is far easier to read the legislative intent in enacting both homestead and forfeiture statutes to be that properties involved that are instrumentalities of crimes or acquired with the proceeds of criminal acts do not fit with the legislative protection. A court need only conclude that the failure of the legislature to enumerate an exception for homesteads in the forfeiture laws (usually enacted later) indicates that the legislature had no intent to protect homesteads from forfeiture. One of the cited cases makes this analysis explicitly. In re of Parcel of Real Property Known as 1622 N. Santa Rita, 801 P.d. 432 (Ariz. A.P. 1990). Another cited decision relied expressly on a Florida case overruled by Butterworth. In short, the weight of authority seems to be that state forfeiture laws do not preempt state homestead provisions, as the above cited cases indicate.

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