Title: Homestead Exemption-Construction of Duplex Units

*069-38 - June 11, 1969

To: Richard Deeb, State Senator, St. Petersburg

QUESTIONS:

1. Does the owner of one half of a duplex as of January 1, 1969 have the right to homestead exemption on that half of the duplex for the 1969 tax year?

2. If question 1 is answered in the negative, would the owner be entitled to the exemption for the 1970 tax year?

The recent decision of the Florida Supreme Court in Ammerman, et al. v. Markham, May 7, 1969, found Ch. 67-339, Laws of Florida, to be an effective legislative redefinition of the term "dwelling house" to include each unit of cooperative apartments and condominium parcels, under the former constitutional provision Art. X, §7, State Const., that ". . . no such exemption of more than five thousand dollars shall be allowed ... on any one dwelling house." Chapter 67-339 (§§196.031 and 196.041, F. S.), Laws of Florida, however, does not relate to units "owned in fee simple by separate owners," as in the case of duplexes which were held in Overstreet v. Tubin, 53 So.2d 913, to be entitled to only one exemption for both units as a single dwelling house under the former constitution. Cf. Ch. 711,F.S., for definition of condominium interests.

The Ammerman opinion also states as to exemptions for the 1969 tax year: "The Fla. Const. 1968 became effective on January 7, 1969, six days after the exemption status of the property was determined, and, therefore, does not apply.... " In this respect, although the Court held Chapter 67-339, Laws of Florida, was by its own terms made effective when the new constitution was approved or adopted by referendum prior to January 1, 1969, so as to exempt condominiums and cooperative units for the current year, it nevertheless affirmed the reasoning detailed in a previous opinion of this office, AGO 068-110, Dec. 20, 1968, Biennial Report of the Attorney General, 1967-1968, pp. 345-348, as to the nonretrospective operation of the 1968 constitutional provisions with reference to eligibility of residential units for homestead exemption without regard to the former "dwelling house" limitation:

Art. VII, §6(b): Not more than one exemption shall be allowed ... with respect to any residential unit. Art. XII, §7(b): This revision shall not be retroactive so as to create any right ... which did not exist under the Constitution of 1885, as amended, based upon matters occurring prior to the adoption of this revision.

I conclude that on Jan. 1, 1969, there existed no statutory or constitutional basis for abandonment of the Overstreet rule that duplex units together constitute a single dwelling house for homestead exemption purposes. Your question is accordingly answered in the negative for the 1969 tax year.

It may be noted, however, that the ruling in Ammerman that the 1968 State Const., "does not apply" as of Jan. 1, 1969, for homestead exemption purposes, may not have been essential to the point decided in that case, i.e. that Ch. 67-339, Laws of Florida, was within the legislative that case, prerogative and became effective by its own terms in Nov., 1968. A contrary view as to applicability of the present self-executing constitutional homestead exemption provisions in the current year might be based on the language of Art. XII, §7(b), supra, which limits retroactivity only as to "matters occurring prior to the adoption of this revision." (Emphasis supplied.) The Ammerman opinion indicates adoption to be an act or fact occurring at the time of favorable vote rather than at the effective date of the new constitution. Although Jan. 1, is, as stated in Ammerman, "the date on which certain facts must exist to entitle taxpayers" to exemptions, it is clear that retroactive application of provisions of law in this area generally is considered a matter of construction or intendment. State v. 01 So.2d 805. Green, Fla. 1958, 101 So.2d 805. My answer to the first question was based on the decision in Overstreet v. Tubin, Fla. 1951, 53 So.2d 913, holding a duplex to be entitled to only one exemption for both units under Art. X, §7, State Const. 1885, which imposed a $5,000 exemption limit on "any one dwelling house."

The 1968 State Const., Art. VII, §6, does not contain that limitation; but provides:

Not more than one exemption shall be allowed any individual family unit or with respect to any residential unit.

This provision of the 1968 State Constitution will control duplex exemption on Jan. 1, 1970, and provides authority for the exemption of each residential unit.

Assuming all other homestead requirements are met, your second question as to whether "after 1969 the owner of one half of a duplex would be entitled to homestead exemption," is therefore answered "yes."

*This opinion incorporates the substance of a subsequent letter to Sen. Deeb, dated July 8, 1969, written in response to a further inquiry from the senator dated June 13, 1969.