The Beach House Battle

Model answer

**1. TENANCY BY ENTIRETIES** When married persons take title as "husband and wife," Florida presumes tenancy by entireties (TBE). TBE property cannot be unilaterally conveyed by one spouse.

**2. DEED TO BROTHER - VOID** Husband's deed to Brother is VOID. Neither spouse can unilaterally convey TBE property without both spouses joining in the conveyance. Recording does not validate an invalid conveyance. Brother has no interest. INDEPENDENTLY: because the property was marital homestead, Husband could not alienate it without JOINDER BY Wife under Art. X, s. 4(c). That is a second, free-standing ground for invalidity - do not stop at TBE.

**3. CREDITOR PROTECTION - TBE** The $2M creditor CANNOT reach the property. Florida extends TBE protection to debts of only ONE spouse. Since this was Husband's sole debt, the property is protected.

**4. CREDITOR PROTECTION - HOMESTEAD** Additionally, the property is protected HOMESTEAD. Under FL Constitution Art. X, § 4: - No value cap ($3M protected) - Size: 0.4 acres, within the one-half-acre limit for property within a municipality - This ordinary business-debt judgment falls within none of the constitutional exceptions TIMING does not change the result either way: the creditor could not attach the property while the TBE existed, and Husband's death did not create an attachable probate interest, because Wife took by survivorship

**5. ADVERSE POSSESSION (FL-Specific)** Neighbor claims the 20-foot strip. Florida has TWO adverse-possession paths, each requiring 7 years of CONTINUOUS possession under a claim of title exclusive of any other right (actual, open and notorious, continuous, exclusive, hostile): - WITH color of title (§ 95.16): possession under a recorded qualifying instrument, judgment, or decree covering the claimed land (even if defective), TOGETHER WITH statutorily qualifying possession - the paper alone is not enough — NO tax-payment requirement. § 95.16 asks whether NEIGHBOR possession is FOUNDED ON a qualifying instrument, judgment, or decree - including one held by someone under whom Neighbor claims, not only one Neighbor holds personally. The facts say Neighbor has none and claims through no one who does. Note the trap: the 2018 deed to Brother purported to convey the whole property including the strip, but Neighbor neither entered under it nor claims through Brother, so it does not supply color of title to Neighbor. So Neighbor cannot proceed under § 95.16 and the only potentially available path is § 95.18 - WITHOUT color of title (§ 95.18): qualifying occupation — by substantial enclosure, or by cultivation, maintenance, or improvement in a usual manner — AND statutory requirements the claimant bears the burden of proving: a RETURN filed with the county property appraiser, and PAYMENT of outstanding taxes and matured installments of special improvement liens, each within the time the statute prescribes - THE TRADITIONAL POSSESSORY ELEMENTS ARE SATISFIED HERE, and you should say so rather than skip past them. Paving in 2016 and repaving since is maintenance or improvement in a usual manner (not merely crossing the land); daily parking plus paving is actual and open; the use has been unbroken since 2016, so it is continuous; no one else used the strip, so it is exclusive; and Neighbor never had permission and openly claimed ownership from 2016, so it is hostile. That is more than the 7 years required, though fewer than 20 - THE CLAIM STILL FAILS — ON THE STATUTE, and on the cleanest possible ground: Neighbor NEVER FILED A RETURN with the county property appraiser. You do not need to work out the statutory deadlines to resolve this, because a return that was never filed cannot have been filed on time under any reading. Neighbor began paying claimed taxes only in 2019, and paying taxes does not substitute for the return. The claimant carries the burden of proving compliance, so Neighbor cannot establish § 95.18 adverse possession - THIS IS THE TESTED POINT: the traditional possessory elements are NOT sufficient in Florida on their own. The physical occupation here exceeded 7 years, but 7 years alone cannot cure a failure to satisfy the § 95.18 filing and tax requirements — so an answer that stops at the elements, or that fails the claim on duration, misses where the points are - OPTIONAL ALTERNATIVE ISSUE (raise it only if time allows - it is not among the listed issues): even a prescriptive EASEMENT over the strip is unavailable: Florida requires 20 years of continuous adverse use, and the period running from 2016 falls well short of 20

**6. HOMESTEAD DEVISE RESTRICTION - NOT REACHED ON THESE FACTS** Follow sections 1-2 through: title was TENANCY BY THE ENTIRETIES and the unilateral 2018 deed was VOID, so the entireties estate was never severed. On Husband's death in 2025 the entire fee passed to Wife instantly by RIGHT OF SURVIVORSHIP - by operation of law, outside the will and outside probate. Immediately before death, Husband and Wife remained SEIZED OF THE WHOLE as tenants by the entireties - neither owning a divisible share - and death EXTINGUISHED Husband's interest, leaving Wife sole owner by survivorship, so no interest in the house entered his probate estate or was subject to disposition by his will. The devise of "all my real property" therefore passed nothing as to it, and neither the devise restriction (Art. X, s. 4(c) and F.S. 732.4015) nor the s. 732.401 descent rules determine ownership of this property. The controlling distinction is whether the property DESCENDS from the decedent or passes AUTOMATICALLY BY SURVIVORSHIP. - Wife takes 100% FEE SIMPLE; the first-marriage children take no interest in THIS PROPERTY under the will. - Keep the two rules distinct. The CONSTITUTIONAL devise restriction (Art. X, s. 4(c)) bites when the decedent is survived by a spouse OR a minor child. Note the refinement: if there is a spouse but NO minor child, the homestead may be devised to the spouse - it is a devise to someone else (as here, to the first-marriage children) that the restriction defeats. Section 732.401 is the separate DESCENT remedy that says where the homestead goes when it was not validly devised: the surviving spouse takes a life estate with a vested remainder to the descendants, or may elect a 50% tenancy in common with them - which presupposes a surviving spouse AND descendants. A spouse with no descendants takes fee simple. All of that presupposes the homestead DESCENDS from the decedent (e.g. sole title) - note that s. 732.401 often applies precisely BECAUSE the homestead was not validly devisable. Here nothing descended: the TBE interest was extinguished at death and the house passed automatically by survivorship, so neither rule reaches it. - This is the trap: reaching for the homestead devise rule without first asking whether the property DESCENDS from the decedent or passes AUTOMATICALLY BY SURVIVORSHIP produces a materially WORSE outcome for the spouse (a life estate or a shared 50%) than the survivorship answer that actually controls.