Constance A. Herrilka v. Christine P. Yates

Summary

In Herrilka v. Yates, 2009 WL 1527935 (Fla. 4th DCA 2009), the court held that a lien on homestead property under Fla. Stat. § 733.608 was improper because the curator never took possession of the property (it was occupied by an interested person) and the attorney’s fees were incurred for general estate administration, not for preserving, maintaining, insuring, or protecting the homestead. The decision strictly construes the statute to require both possession of unoccupied protected homestead and expenditures limited to specific preservation purposes.

Holdings

1. Section 733.608 requires the personal representative to take possession of the protected homestead property before a lien may be imposed under subsection (3); the lien is not available if an interested person occupies the property.
2. Section 733.608(3) permits a lien only for expenditures incurred to preserve, maintain, insure, or protect the protected homestead property; general estate administration expenses do not satisfy this requirement.

Questions Presented

1. Whether the trial court erred by imposing a lien on homestead property under section 733.608, Florida Statutes, when the curator did not take possession of the property, as it was occupied by an interested person.
2. Whether the fees for which the lien was imposed were incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property, as required by section 733.608(3).

Disposition

reversed