Can Homestead Protection Defeat Prior Sales Contract?
A caller asked whether Florida's homestead protection protected against suit for failure to perform under contract to sell the house to a third party. The caller while unmarried had owned a homestead property in is own name. Subsequently, he decided to sell the homestead and get married. He entered into a contract to sell. A month later he got married and his spouse moved into the house as her permanent residence. Thereafter, he and his wife realized that the house was worth more money than the contract price so they decided to default under the husband's sale contract. They want to know if the buyer can get a judgment of specific performance to force sale of the house when the house is now homestead of the wife who was not party to the sales contract.
There are a few cases in this area which hold that the wife is bound by the terms of a pre-marital contract for sale. Essentially, the wife moved into the house subject to an already binding sale contract, and therefore, she cannot assert new homestead rights to defeat the husband's prior contract. I think the buyers would win a specific performance lawsuit.
posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida
Jonathan.... Would your opinion in this case be the same if the situation was changed in this manner..... An unmarried man and woman purchased a home in 2001 together ( although titled in only one name ), lived in the residence for 4 years until married in 2005, subsequently one spouse ( the one on the title ) decided to sell pending the purchase of the late father's estate home and later decided to not sell at all. The Spouse was sued for specific performance and a judgement obtained against the one Spouse only. Could the other Spouse claim his right to homestead and block the sale? I suppose the one important note is that there has never been filed a " Notice of Homestead" and I'm not sure whether it matters at this point or not....
Jonathan...I have a similar situation...I entered into a contract to purchase a homestead property, the seller (husband) is married but only the husband (seller) is on title. The wife did not live in the property when we signed the contract but moved in later. The seller and wife are now trying to backout of the contract and I want specific performance. Can they block the sale?