Florida Homestead Exemption Waiver Obtained By Attorney From Client Declared Invalid; Some State High Court Justices Express Ethical Concerns

In Florida, The Associated Press reports:

• A 1985 amendment to the Florida Constitution does not allow debtors to waive a long-standing ban on the forced sale of their homes to pay off unsecured creditors, the state Supreme Court ruled [last month]. The justices unanimously rejected an appeal by Miami lawyer Deborah Chames. She had obtained a $33,206.76 judgment for legal fees against a former divorce client, Henry DeMayo, and a lien against his home. The 3rd District Court of Appeal reversed the lien even though the retainer agreement DeMayo signed included a waiver of a constitutional provision exempting primary homes from forced sales.

• For more than a century, the [Florida] Supreme Court has held that the exemption cannot be waived. In the new opinion the justices wrote the amendment that expands the exemption to any "natural person," not just heads of families, doesn't change the legal precedent prohibiting waivers.

• Chames argued the amendment also turned the exemption into a personal right that can be waived. Justice Raoul Cantero wrote for the court that there's no indication voters intended to do that when they approved the amendment. "We find the amendment to the homestead exemption a slim reed on which to recede from 123 years of precedent," Cantero wrote.

Source: Ban remains on forced home sales by unsecured creditors.

To view court decision, see Chames v. DeMayo (Fla. 12-20-07).

Go here to watch the oral arguments in the Florida Supreme Court, in which some members of the court, among other things, expressed concerns about the possible ethical and conflict of interest problems that may arise when an attorney asks a client to waive (ie. sign away) their homestead rights when entering into a retainer agreement.

For the long version of this post, see Homestead Waiver Declared Invalid; Big Win For Florida Homeowners As State Exemption From Forced Sale Dodges Bullet.