Chames v. DeMayo Case Analysis

In Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007), the Florida Supreme Court refused to enforce a homestead waiver contained in an attorney’s retainer agreement. The decision reaffirmed a rule first announced in 1884: a Florida homeowner cannot sign away the constitutional homestead protection in an unsecured agreement.

The Florida Constitution still lets an owner pledge the home through a mortgage, and its own exceptions for taxes, purchase-money debts, and labor on the property still apply. What a creditor cannot get is a waiver by contract: a signature on a waiver clause in an unsecured agreement gives the creditor no rights against the home.

The Retainer Agreement Waiver in Chames v. DeMayo

Henry DeMayo hired Deborah Chames and her firm, Heller & Chames, to modify his child support obligations and abate his alimony payments. He signed a six-page, single-spaced retainer agreement. The homestead waiver sat on page four, at the end of a 118-word sentence. The provision granted the firm liens on DeMayo’s interests in any real or personal property within the court’s jurisdiction. It also recited that DeMayo knowingly, voluntarily, and intelligently waived his homestead exemption should the firm obtain a charging lien for unpaid fees.

Chames later withdrew from the representation and obtained a charging lien and a judgment against DeMayo for $33,206.76 in unpaid fees. The trial court enforced the lien against DeMayo’s home. The Third District reversed on that issue in a plurality opinion, finding the waiver invalid, and affirmed in all other respects. Two of the three judges, the panel majority, concurred only in the result: they followed the supreme court’s precedent but wrote that they would hold otherwise if writing on a blank slate.

The concurring judges certified a question of great public importance, and both sides sought review in the Florida Supreme Court. The court rephrased the question: should it recede from longstanding precedent holding that the Florida Constitution’s exemption from forced sale of a homestead cannot be waived? All seven justices answered no.

What the Florida Supreme Court Held

The Florida Supreme Court held that a waiver of the homestead exemption in an unsecured agreement is unenforceable. Justice Cantero, writing for a unanimous court, declined to disturb the precedent and approved the Third District’s result: the charging lien could not be enforced against DeMayo’s home.

The court explained that its precedents “do not prohibit a waiver of the homestead exemption; they simply require that such waivers be accomplished as the Florida Constitution prescribes,” by mortgage, sale, or gift. Of the three, only a mortgage leaves the owner in the home while giving a creditor recourse against it; a sale or a gift disposes of the property altogether. The cases forbid only a general waiver in an otherwise unsecured instrument.

A homeowner who wants a creditor to have recourse against the home can grant a mortgage. A homeowner who merely signs a waiver clause has given the creditor nothing.

The Precedent Behind the Rule: Carter’s Administrators and Sherbill

Florida’s rule against homestead waivers began with a promissory note. In Carter’s Administrators v. Carter, 20 Fla. 558 (1884), a debtor had signed a note waiving the benefit of all exemption laws. After his death, his heirs claimed the $1,000 personal property exemption that sits beside the homestead exemption in the Florida Constitution. The court surveyed the law in other states and held that the waiver was not valid to defeat a claim of exemption.

The holding rested on the policy of the exemption laws and the near-universal agreement of other courts. The court also rejected the argument that the waiver was valid because the same result could be reached through a mortgage.

A homeowner who mortgages specific property, the court reasoned, understands what happens on default. In its words, “the very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences,” while a bare waiver clause carries no such understanding. The concern, as Chames later described it, was that a waiver in an unsecured agreement would “by the mere scratch of a pen” render the exemption “nugatory.”

Seventy-two years later, the court in Sherbill v. Miller Manufacturing Co., 89 So. 2d 28 (Fla. 1956), applied the rule to the homestead itself. The debtors’ promissory note waived “the benefit of their homestead exemption as to this debt,” and the court refused to enforce the waiver. “No policy of this State,” it wrote, “is more strongly expressed in the constitution, laws and decisions of this State than the policy of our exemption laws.”

By the time Chames reached the court, the rule was 123 years old. Florida courts follow precedent unless circumstances have changed or the earlier analysis was wrong, and the court found neither. Nor, the court added, had Carter and Sherbill proven unworkable in practice.

The Three Arguments for Allowing Waivers

Chames and her firm offered three grounds for abandoning Florida’s rule against homestead waivers, and the court rejected all three.

The 1984 constitutional amendment. Florida voters replaced “the head of a family” with “a natural person” in the homestead provision, expanding who qualifies for the exemption. The firm argued the change converted the exemption into a purely personal right that its holder may waive. The court found no such intent: the ballot summary told voters only that the exemption would extend to any natural person. The amendment, the court wrote, was “a slim reed on which to recede from 123 years of precedent.”

A claimed national trend. The firm argued that Florida’s sister states had shifted toward allowing homestead waivers. The court’s survey found the opposite. Most states that have considered the question refuse to enforce a general homestead waiver in an executory contract, a contract with obligations still unperformed on both sides. Of the six states whose law Carter had cited against waiver in 1884, only Louisiana had changed course, while Pennsylvania, which permitted waivers then, prohibits them now.

Waivers of other constitutional rights. The third argument was consistency: Florida allows waivers of many constitutional rights, including the right to counsel and the protection against double jeopardy, so the homestead exemption should be waivable too. The court called this the most compelling ground and still rejected it.

The homestead exemption, the court explained, is not purely personal: it protects the debtor, the debtor’s family, and the State of Florida, and a right that protects more than its holder is not the holder’s alone to surrender. Every valid waiver of a constitutional right must also be knowing, intelligent, and voluntary. Courts enforce that standard through plea colloquies, judicial warnings, and mandatory disclosure forms.

A mortgage supplies that assurance for the homestead because the transaction itself forces the choice into the open: a homeowner who pledges the home understands that default can cost it. The court wrote that a mortgage makes the waiver “with eyes wide open,” never “inadvertently, deep in the entrails of a retainer agreement.” It called DeMayo’s page-four clause “precisely the evil” its cases have sought to avoid.

Which Claims Can Still Reach a Florida Homestead?

Florida’s constitution allows only three kinds of claims to be enforced against a homestead:

• property taxes and assessments on the home
• obligations contracted for its purchase, improvement, or repair
• obligations for house, field, or other labor performed on the property

A mortgage stands on separate constitutional footing. The owner, joined by the spouse if married, may alienate the homestead by mortgage, sale, or gift, and the Chames opinion repeated the court’s long-held view that the exemption does not apply to mortgaged property. The homestead exemption otherwise protects an unlimited dollar value in the home, subject to the constitution’s acreage limits.

The Florida Supreme Court has repeatedly refused to read new creditor exceptions into that list. In Havoco v. Hill, decided six years before Chames, the court held that even a homestead acquired with money moved there to defeat an existing creditor keeps its protection. Chames cites Havoco for the same refusal to find exceptions outside the three the constitution states. Lower courts have nonetheless reached homesteads through an equitable lien where the money that bought or improved the home was itself obtained by fraud.

A spouse’s waiver of homestead rights in a prenuptial or postnuptial agreement is a different device. Those waivers concern the constitution’s restrictions on who inherits the home, and the Chames court distinguished them from a waiver of the creditor protection.

What Chames Means for Homestead Planning Today

For a lender whose loan did not buy, improve, or repair the home, the only path to homestead recourse is a mortgage. The owner must sign it, and a married owner’s spouse must sign too. That rule assumes honestly sourced funds; money traceable to fraud can support an equitable lien with no mortgage at all. Loan documents that genuinely intend homestead recourse are drafted as mortgages.

A homestead waiver clause already sitting in a signed loan document or guarantee is unenforceable against the home. The clause in Chames itself recited that DeMayo acted knowingly, voluntarily, and intelligently, and the court refused to enforce it.

The anti-waiver rule reaches further than any statutory exemption. Florida’s statutory exemptions for wages, annuities, and life insurance can be waived in some circumstances. The constitutional exemptions—the homestead and the $1,000 in personal property that Carter itself protected—cannot be waived in an unsecured contract at all.