Group Title: Historic St. Augustine: Local Projects - Montgomery House
Title: [Letter to Overton G. Ganong re: TAXATION -- Status for Ad Valorem Real Property Tax Purposes of Life Estate Reserved by Grantor in Real Property Conveyed to a State Agency $$196.001, F.S. ; 196.295; and 196.28, F.S.; 192.042, F.S.
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 Material Information
Title: Letter to Overton G. Ganong re: TAXATION -- Status for Ad Valorem Real Property Tax Purposes of Life Estate Reserved by Grantor in Real Property Conveyed to a State Agency $$196.001, F.S. ; 196.295; and 196.28, F.S.; 192.042, F.S.
Series Title: Historic St. Augustine: Local Projects - Montgomery House
Physical Description: Correspondence
Language: English
Creator: Mellichamp, Joseph C.
Publication Date: 1976
Copyright Date: Public Domain
Physical Location:
Box: 6
Divider: B15 L7 Joaneda - Architecture, History, Archaeology
Folder: Local Projects - Montgomery House
Subject: Saint Augustine (Fla.)
57 Treasury Street (Saint Augustine, Fla.)
Joaneda House (Saint Augustine, Fla.)
Spatial Coverage: North America -- United States of America -- Florida -- Saint Johns -- Saint Augustine -- 57 Treasury Street
Coordinates: 29.893459 x -81.313492
 Record Information
Bibliographic ID: UF00094804
Volume ID: VID00035
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: B15-L7

Full Text

.,Attmflsor Outwi

December 9, 1976

Mr. Overton G. Ganong
ActinM Director
St. 0 stine Preservation Board
S'~26nx 1987
6t. JAugustine, Florida

Re: TAXATION--Status for Ad Valorem Real
Property Tax Purposes of Life Estate
Reserved by Grantor in Real Property
Conveyed to a State Agency
S5196.001, F.S.; 196.295; and
196.28, F.S.; 192.042, F.S.

Dear Mr. Ganong:

You have requested the advice of this office on a
situation which has arisen involving real property deeded by
Mrs. Elizabeth Towers of Jacksonville to the Historic
St. Augustine Preservation Beard of Trustees. You advise that
the property was deeded on January 10, 1975, and that the
Preservation Board has since then turned the property ovet td
the Trustees of the Internal Improvement Fund, and that the
house on the involved lot is being restored by means of a
historic preservation group from the National Park Service..

You state that the Preservation Board has received a
to bill for ad valorem rea. property taxes from the County Tax-
QCllebtor. You advise that there has been correspondnage and
communication with the County Attorney, and that the County
Attorney first advised that the taxes could be prorated and
cancelled, but later changed his opinion upon learning that
Mrs. Towers had reserved a life estate and other reservations
in the property. A letter in the file dated February 9, 1976,
from Mr. Williard Howatt, County Attorney, to you states the
County Attorney's position and advises you that you may wish

This is 100% Recycled Paper.

Mr. Overton G. Ganong
Page Two

to request an Attorney General's opinion, and suggests that you
furnish a certified copy of the deed with such request.

Reservations and conditions found in the deed are as

This conveyance is made subject to an exception
and reservation of a life estate in the Grantor,
provided that during such life estate said prop-
erty shall be open both to public access for
interior visitation, no less than twelve (12)
days annually, and to inspection by representatives
of the Grantee, during weekdays between 8:00 a.m.
and 5:00 p.m.

This conveyance is made subject to exception and
reservation for the Grantor's three surviving
children for periods of use and occupancy of said
property during their lives not to exceed an
annual total of twenty-eight (28) consecutive days.

This conveyance is made subject to the condition
that if the sum of the aforesaid, grant is not
expended by the Grantee for the restoration of
said property in accordance with the plans and
specifications suggested by the Grantor and
Grantee, as ultimately approved by the National
Park Service, then said property shall
immediately revert to the Grantor, her heirs or

As a general rule, this office refrains from rendering
opinions, formal or informal, involving disputes between
different governmental bodies unless both such bodies join in
the request. However, inasmuch as the County Attorney expressed
a willingness to your requesting an opinion, an informal opinion
will be rendered with the complete understanding that it is not
binding: on any involved party.since the solution in the last
analysis rests with the judiciary.

First, the status of the property for tax year 1975 will
be considered.

It is well settled that under Florida law the taxable
status of all real property is fixed as of January 1 of each
year. See Section 192.042, F.S., AGO 075-255. AGO 074-199,
&Lke Worth TgWers v. Gerstunq, 251 So.2d 27, rev. on other

Mr. Overton G. Ganong
Page Three

grounds, 262 So.2d 1 (Fla. 1972). Accordingly, on January 1,
1975, the property involved was subject to tax.

In AGO's 074-199, 073-183 and 075-255, the subject of
the taxable status of property, fee title to which is transferred
to an exempt or immune governmental unit was discussed in
connection with statutes authorizing proration and cancellation
of taxes. See SS196.295 and 196.28, F.S.. In AGO 075-255, it
was pointed out that the provisions of S196.295, F.S., were
mandatory. However, proration contemplates complete divestiture
of ownership wherein the right of title, use, occupancy,
possession, alienation and all other rights appurtenant to the
ownership of real property are transferred from the grantor to
the grantee. This complete divestiture has certainly not
occurred in the instant case as is readily apparent from the
reservations and conditions stated in the instrument. The
grantee has retained a life estate in property with the
limitation that the property shall be open to public access
for interior visitation no less than 12 days annually and to
inspection by representatives o& the Preservation Board during
weekdays between 8:00 A.M. and 5:00 P.M.

Thus, at issue is the taxable status of the life estate
and other rights reserved by the grantor, since it is well
settled that the state and its agencies and departments, and
the property of any of the same, are immune from taxation.
Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla. 1958);
borough County Aviation Authority v. Walden, 210 So.2d 193
(Fla. 1958); State v. Alford, 107 So.2d 27 (Fla. 1958);
Dickinson v. City of Tallahassee, 325 So.2d 1 (Fla. 1975);
Williams v. Jones, 326 So.2d 425 (Fla. 1976).

It ix imperative at this point to determine whether a
life estate is an interest in real property and as such whether
it is subject to taxation.

In 31 C.J.S., Estates, it is stated at p. 52;

"A life estate is a freehold interest in lands,
the duration of which is confined to the life
or lives of some particular person or persons
or to the happening or not happening of some
uncertain event. It is an estate in realty in
which a vested remainder or a present reversion-
ary interest exists and.presupposes a fee
existing elsewhere than in the life of the
tenant. . ."

Mr. Overton G. Ganong
Page Four

"A life estate is not an estate of
inheritance, but is a freehold estate,
whether for the tenant's own life or for
that of another person. A life estate
is not merely a right to occupy the
property. During the life of the life
tenant he is, as a general rule, an
owner of the property with the right
of possession . ." 31 C.J.S., Estates,
S30, p. 53


"Under the common law, a division of
the fee in real estate into life estates
and remainders creates legal estates of
present ownership. The life tenant possesses
legal title. While it has been said that
a life estate is a lesser estate than the
fee or inheritance which belongs to the
remaindermen, it also has been said that
a life tenant has the same interest in the
land during the existence of his estate
that the remainderman has in it after it
comes into the latter's possession, except
that . he may not commit waste."
31 C.J.S., Estates S30 p. 54.

Florida has recognized the common law in the cases of
Sauls v. Crosby, 258 So.2d 326 (Fla. 1 DCA 1972); In Re Paines
Estate, 128 Fla. 151, 174 So. 430 (Fla. 1937); Weed v. Knox,
157 Fla. 896, 27 So.2d 419 (Fla. 1949).

"As long as his estate therein continues,
the life tenant of real property is entitled .
to its possession, control, and enjoyment. The
very essence of a life estate is present and
free enjoyment of the premises, and enjoyment
cannot be had without possession. The right
to possession, control, and enjoyment is
exclusive. During its existence a life estate
is as effective to insure exclusive control
and possession as is a title in fee."
31 C.J.S., Estates 38 p. 68-69; Sauls v.
Crosby, supra.

Mr. Overton G. Ganong
Page Five

"As a general rule, the life tenant
in possession is required to pay all ordinary
taxes on the property during the continuance
of his estate. The life tenant may or may
not be obligated to pay assessments for
public improvements, and it is generally held
that if the improvements are permanent, the
assessment should be apportioned between the
tenant for life and the remainderman."
31 C.J.S., Estates S47 p. 93.

Having determined a life estate is an interest in real prop-
erty, it remains only to be determined whether such an interest
is subject to taxation under S196.001, F.S.

Section 196.001, F.S. (1975), provides in pertinent

"Unless expressly exempt from taxation, the
following property shall be subject to
taxation in the manner provided by law."

(1) "All,real . property in this state."

In Bancroft Inc. Corporation v. City of Jacksonville,
27. So.2d 162 (Fla. 1946), the Florida Supreme Court was faced
with the question of whether the City of Jacksonville could
tax lands which had been sold by the federal government to a
private purchaser under an installment contract whereby title
to the lands was retained by the government until the purchase
price was paid and other conditions performed, where before the
time for full performance of the contract and execution of the
deed the purchaser was let into possession and thereafter used
the property for private purposes. The Court approached th
problem on the premise that this is a democracy in which every
parcel of property is expected to bear its due portion of the
burden of government unless exempt by the Legislature in the
manner provided for by the Constitution.

The Court concluded that the purchaser was the owner of
the taxable interest in the property in question, and that the
federal government had abandoned such use of it as gave it an
exemption status and that it was now amenable to taxationn under
the laws of Florida. Notwithstanding the fact that the federal
government retained legal title for security interests.

Likewise, the Florida Supreme Court held in Hillsborough
County Aviation Authority v. Walden, supra, among other things,

Mr. Overton G. Ganong
Page Six

that while real property owned by the County was immune from
taxation and, that the leasehold-interests in such property
held by.a motel corporation was a separate and distinct interest
in such property. and was subject to taxation when used for a
predominantly private purpose.

In Williams v. Jones, supra, the Florida Supreme Court
discussed what may constitute an interest in real property by
stating that classifications for purposes of legislation may be
made with reference to similarity of situation, circumstances,
requirements, and convenience to best serve tbie public interest.
The test as to the validity of classification for proposed
legislation is good faith, not wisdom. Thus, the Court concluded
that the taxation of the leasehold interest in real property
owned by the state or one of its political subdivisions, was
proper in that it "applies similarly to all under like conditions."
326 So.2d at 430.

Similar reasons should be applied in the instant case.
Where an individual conveys real property to the state or one of
its agencies but retains a life estate, said individual should
be treated for ad valorem tax purposes as other taxpayers
similarly situated, in view of the fact that the lilt estate
holder enjoys the rights and privileges that are tantamount to-
full ownership. Thus, it is my opinion that a life estate, as
an interest in real property, is subject to ad valorem taxation
unless expressly exempt from taxation. AGO 054-63; 070-81. The
fact that the remainder interest in the real property held by the
state or one of its agencies is immune from taxation is not
determinative of whether the life estate held by the grantor is
exempt or immune. Thus, where an individual conveys real property
to the state reserving a life estate, the interest must be
separately assessed. The value of the remainder interest in the
estate is immune from taxation, but the value of the life estate,
an interest in real property, is subject to ad valorem.taxation
unless the life tenant otherwise qualifies for an exemption using
his or her real property interest exclusively or predominantly
for educational, literary, scientific, religious, charitable, or
governmental purposes. Chapter 196, F.S. (1975).

This is an informal opinion which has been prepared by
the legal staff of the Department of Legal Affairs and should
not be considered a formal Attorney General's opinion. Likewise,

Mr. Overton G. Ganong
Page Seven

this informal opinion does not in any way attempt to answer
the question of establishing the valuationof the life estate.


Attorney General


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