FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                         No. 1D17-280
                 _____________________________

EDWARD A. CRAPO, as Alachua
County Property Appraiser,

    Appellant,

    v.

PROVIDENT GROUP - CONTINUUM
PROPERTIES, L.L.C., a Florida
not-for-profit limited liability
company, and VON FRASER, in
his capacity as Alachua County
Tax Collector,

    Appellees.
                  ___________________________

On appeal from the Circuit Court for Alachua County.
Monica J. Brasington, Judge.

                        February 8, 2018


LEWIS, J.

     Appellant, Edward A. Crapo, as Alachua County Property
Appraiser, appeals a Final Declaratory Judgment in which the
trial court determined that property used for student housing that
is legally owned by Appellee, Provident Group – Continuum
Properties, L.L.C., is equitably owned by the University of Florida
(“UF”) and is, thus, immune from ad valorem taxation. For the
reasons that follow, we affirm.
     Appellee owns legal title to the property at issue known as
“The Continuum.” The property is located near UF’s campus in
Gainesville and consists of 350,000 square feet, most of which is
dedicated for graduate and professional student housing.
Appellee’s sole member is Provident Resources Group, Inc., a non-
profit corporation that, as one of its charitable functions, assists
public universities to acquire, develop, and operate student
housing.     Appellee’s Amended and Restated Articles of
Organization describes its purpose as follows:

    The Company is organized exclusively to further the
    stated charitable purposes of its Sole Member, a Georgia
    nonprofit and an organization exempt from Federal
    Income tax. Specifically, the Company is organized for
    the purpose of planning, developing, financing,
    equipping, operating, and maintaining a student housing
    facility and certain ancillary facilities located in
    Gainesville, Florida, exclusively for the benefit of [UF]
    and its students, consistent with the terms of a Student
    Housing Agreement by and between the University and
    the Company. The Company may engage in any lawful
    business activity permitted by the Act in furtherance of
    the foregoing purposes.

Article V, entitled “Public Benefit,” sets forth:

    The Company shall operate exclusively in furtherance of
    the above stated charitable purposes and shall not engage
    in any activities that would jeopardize the tax exempt
    status of the Sole Member. No substantial part of the
    Company’s activities will be carrying on propaganda or
    otherwise attempting to influence legislation. No part of
    the real earnings of the Company or any of its operations
    shall result in private inurement or impermissible
    benefits to private interests or individuals. The Company
    shall not be operated for pecuniary profit.

    Pursuant to its Operating Agreement, Appellee is to
“undertake the acquisition, financing, equipping, ownership,
operation and maintenance of the Student Housing Facility for the
benefit of the University and its students, consistent with the

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terms and provisions of the Student Housing Agreement, which
purpose is in furtherance of the stated charitable purposes of the
Sole Member. . . .” The Board of Managers is to “utilize any
available surplus cash flow of the Company solely and exclusively
in furthering the Charitable Activities of the Company, consistent
with the stated charitable purposes of the Sole Member.” Upon
the “winding up of the Company,” the “Company Property (or the
proceeds thereof)” must be distributed in the “following order and
priority: (a) to creditors . . . (b) to the University . . . (c) to the Sole
Member of the Company for distribution in accordance with its
charitable purposes . . . .”

       The Student Housing Agreement, which Appellee and UF’s
Board of Trustees executed on August 9, 2010, explains “that there
is a need for additional housing for graduate and professional
school students,” that Appellee desired to assist UF in meeting the
need for additional housing, and that Appellee would, with the
support and direction of UF’s Department of Housing and
Residence Education, implement housing educational programs
and policies to serve the needs of UF’s graduate and professional
school students. UF “shall market and promote the Facility as a
University-affiliated housing option for University Students.”
Appellee agreed “that all net revenues from operations of the
Facility shall be used solely for the purpose of furthering the
Charitable Activities.” UF acknowledged that it “shall directly and
substantially benefit from the development, operation and
management of the Facility by Provident and that the Facility will
provide a much needed addition to the housing supply . . . .” Upon
the repayment in full of the project’s financing, “all right, title, and
interest in and to the Property shall be conveyed from Provident
to the University or to another similarly situated charitable
organization . . . .” If all or a portion of the property were to be
taken by condemnation or other eminent domain proceedings, “any
award or compensation payable in connection with such Taking
shall be paid to the following priority: (i) first, to satisfy any
remaining repayment obligations under the Continuum Financing
. . . (ii) second, to the University . . . .”

    The Declaration of Covenants and Restrictions for the
property provides that “Declarant hereby covenants that the
Property herein . . . shall be used exclusively as a housing

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community with related retail and ancillary uses . . . .” UF “shall
have the right to enforce . . . all restrictions, covenants and
conditions imposed by the provisions of this Declaration.”

     In April 2013, Appellee sought declaratory relief for tax
immunity from May 28, 2010, to the date of judgment and also
sought a refund of taxes for a portion of 2010 and for 2011. After
the trial court granted Appellant’s motion to dismiss the action for
lack of subject matter jurisdiction, Appellee filed an amended
complaint as the “Trustee for the use and benefit of the University
of Florida.” Appellee sought tax immunity for 2010 through 2014
and again sought a refund of taxes for a portion of 2010 and for
2011. The trial court granted Appellant’s motion to dismiss the
amended complaint, a ruling which Appellee appealed.              In
Provident Group-Continuum Properties, L.L.C. v. Crapo, 

409, 410 (Fla. 1st DCA 2015), we reversed the dismissal order,
setting forth in part:

    [T]he documents don’t state that appellant was “trustee”
    of the property being held “in trust” for the University,
    but the documents are otherwise replete with statements
    regarding the powers and duties of appellant for the
    benefit of the University, including provisions requiring
    ultimate disposition of the trust property to the
    University, all of which establish the creation of a trust.

    We conclude that the documents established a trust for
    the benefit of the University of Florida, and thus
    appellant, as trustee, has standing to contest the tax
    assessment and is not barred by the time limit of section
    194.171(2).

Thereafter, Appellee filed a second and third amended complaint,
seeking a declaration of tax immunity for the property “for partial
year 2010 and for the years 2011 through 2016; and alternatively,
to exemption for 2014 through 2016.” It again sought a refund of
taxes for a portion of 2010 and for 2011.

     During the non-jury trial, Norbert W. Dunkel, UF’s Associate
Vice-President for Student Affairs and Auxiliary Operations,
testified that UF included the housing project at issue “as a part of

                                 4
the Department of Housing and Residence Education website.” He
explained that UF began looking into expanding its graduate and
professional housing in 2008. Because doing so “would cost [UF]
about a quarter billion dollars,” which was not feasible, Dunkel
looked into “a public-private partnership to provide graduate and
professional school housing . . . .” Working with Appellee enabled
UF to meet its housing needs for graduate and professional
students. UF participates in committees or boards that oversee
the project and considers the project a substantial benefit. UF
markets the project and hires and trains a master’s level
professional staff member who lives onsite and is responsible for
the “overall residence education of the site,” which includes
responding to such things as roommate issues, programming
issues, and student discipline issues. UF does not provide those
types of services to private for-profit housing projects. Any surplus
funds for the project are used for payment of the debt.

     Donovan Hicks, Appellee’s Executive Vice-President, Chief
Legal Officer, and Corporate Secretary, testified that Appellee is a
“501(c)(3) organization” that “pursues activities in multiple areas,
including lessening burdens of government.” He explained that
the project at issue involved a private non-profit party
collaborating with a university to achieve a stated objective of that
university and to eliminate certain risks that “universities try to
avoid by designing, constructing these projects, financing them,
without the university having to incur that indebtedness and able
to still get the benefit . . . and then ultimately ownership of the
project.” Appellee had no financial investment of its own in the
property. When asked about any surplus funds that would result
from tax immunity, Hicks testified, “Any type of resulting excess
cash flow or surplus has to be, under the terms of our agreement
with [UF], either reinvested in the project, for example, any –
taking care of any capital improvement needs that the project
might have, assisting the University.” When asked who benefits
from a surplus cash flow, he replied, “Well, I would say the project,
the students who live there, the University whose mission is being
served, and then ultimately the University when the project is
transferred to them.” He explained that Appellee charges market
rate rents to students who live at the property because “it costs a
lot of money to construct and operate and maintain a project like
that” and because the “mission we are pursuing there is to assist

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the University in achieving its goals and objectives to have a top-
quality project that’s operated and maintained at the standards
that in this case [UF] would want us to maintain . . . .” UF
exercises control over rental rates “[t]hrough their participation on
the project operations committee and the board of managers . . . .”

     In the Order Granting Plaintiff’s Declaratory Judgment, the
trial court set forth in part:

    These four documents dedicate the property to the use
    and benefit of the University as graduate and
    professional student housing, and also dedicate any
    surplus revenue from the project to a “charitable” use
    (defined in the documents to mean use for the
    University’s benefit). Upon retirement of the project
    financing, the University is entitled to a deed for legal
    title to the property free and clear, for no payment. Other
    provisions in the SHA secure the University’s rights to
    approve project plans, use, financing, operations, rental
    terms, and other matters, and its rights to be named as
    an insured for the property and to condemnation proceeds
    if the property is taken. Provident has legal title, but has
    no equity invested in the property or equitable
    ownership.

      ....

      The ruling of the First District Court of Appeals, which
    constrains this court’s decision-making authority on
    certain issues in this matter, held that the documents
    establish a trust in which Provident holds legal title as
    trustee for the benefit of the University as equitable
    owner. The evidence at trial . . . confirms that a trust
    relationship is carried out in the operation of the project.
    Provident has operated the project in accordance with the
    SHA. The project’s ownership and use have been the
    same for each of the years in question.

      ....



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    . . . [T]he University clearly intended to have the use and
    benefit of this project and has accepted the same. . . . It
    allows the project to use its name and affiliation to attract
    student tenants, and provides services on-site. It has
    accepted the benefits of this transaction for over five
    years, and has the prospective benefits of continued
    dedicated use and ultimate title. The University, and not
    Provident, will benefit if tax relief is granted. In sum, the
    evidence confirms that the University is the equitable
    owner of the property as beneficiary of the trust.

    The University is a state agency and is the owner of the
    property for purposes of property tax. This establishes
    the property’s status as immune from tax. . . .

The trial court alternatively determined that Appellee was entitled
to a governmental and charitable tax exemption for 2014 through
2016.

    In the Final Declaratory Judgment, the trial court found that
Appellee was entitled to a refund of $44,878.12 for tax year 2011
and set forth in part, “The entire assessed value is immune from
property tax; therefore, no property tax is due for the years in
question.” This appeal followed.

     An order in a declaratory judgment case is generally accorded
a presumption of correctness on appeal. Reform Party of Fla. v.
Black, 

, 310 (Fla. 2004). To the extent a decision
rests on a question of law, however, an order is subject to de novo
review. Id.; see also Vill. of N. Palm Beach, Fla. v. S & H Foster’s,
Inc., 

, 436 (Fla. 4th DCA 2012) (“On review of a
declaratory judgment, we defer to the trial court’s factual findings
if supported by competent, substantial evidence. . . . The court’s
conclusions of law are reviewed de novo.”).

     As the Florida Supreme Court has explained, what comprises
“the State” for purposes of ad valorem tax immunity is limited to
“counties, entities providing the public system of education, and
agencies, departments, or branches of state government that
perform the administration of the state government.” Canaveral
Port Auth. v. Dep’t of Revenue, 

, 1228 (Fla. 1996).

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Appellant argues that the State’s immunity from taxation does not
enure to benefit a private entity by unilateral declaration without
legal basis in law or facts. Appellant acknowledges, however, that
property need not be legally owned by an immune entity to be
immune from taxation, but can instead be equitably owned. For
instance, in Leon County Educational Facilities Authority v.
Hartsfield, 

, 527 (Fla. 1997), the appellant, a public
corporate body that was empowered to own, lease, and finance
higher educational facilities, “determined” to operate a dormitory
and food service project for the purpose of serving the students at
FSU, FAMU, and TCC. SRH, a non-profit Florida corporation, was
established solely for the purpose of facilitating the financing,
acquisition, construction, and equipping of the project. 

entered into a lease with option-to-purchase agreement
with SRH under which SRH as the lessor would acquire, construct,
and equip the project and lease it to the appellant in exchange for
periodic rental payments. 

proceeds in excess of the
amounts owed to the investors would be paid to the appellant. 

specified that the appellant would be responsible for
maintenance and insurance on the project and would pay any taxes
that were assessed against the project. 

the
investors in full, the appellant could purchase the project for $1.

and SRH sued for declaratory relief as to the
denial of a tax exemption, and the trial court entered summary
judgment in favor of the property appraiser. 

that
the concept of equitable ownership in ad valorem taxation has long
been a part of Florida law, the supreme court set forth in part,
“Fairness dictates that the doctrine of equitable ownership should
be applied evenhandedly regardless of whether a tax is being
imposed or an exemption is being claimed. . . .” 

The
court concluded that the appellant was the equitable owner of the
property, while noting that the only reason legal title was held by
SRH was to facilitate financing. Id.; see also Russell v. Se.
Housing, LLC, 

, 269-73 (Fla. 3d DCA 2015) (noting
that five military housing complexes were being improved and
operated pursuant to a public-private partnership between the
United States Navy and a private developer and affirming a
judgment holding that the property was not subject to ad valorem
taxes because the record established that the Navy retained
equitable and beneficial ownership of the property where: (1) the
use of the improvements was limited to military housing – a Navy

                                 8
purpose; (2) the Navy oversaw the construction of improvements;
(3) the Navy directed the rental of the housing units; (4) the Navy
controlled access to the improvements; (5) the Navy supervised the
operation of the improvements during the entire lease term; (6) the
Navy benefitted from the revenues and received the lion’s share of
the profits; (7) the Navy would take back the improvements at the
end of the lease; and (8) the transfer of title occurred in order to
accomplish something other than the transfer of ownership).

      Appellant asserts that Appellee is the equitable owner of the
property because it administers the current operations of the
project and because UF is only provided the benefit of being able
to offer students housing at market rates. However, we reject
Appellant’s attempt to diminish the importance of the benefit UF
is receiving from the project. As was the case in Hartsfield, where
a non-profit corporation’s involvement in a project benefitted a
public body, UF acknowledged in the Student Housing Agreement
its “direct and substantial benefit from the development, operation
and management of the Facility” as a “much needed addition to the
housing supply . . . as well as to further its “educational purposes
and objectives.” (Emphasis added). We also reject any attempt to
lessen UF’s involvement in the housing project. Similar to the
facts in Russell, UF was given the right to approve project plans,
use, financing, operations, and rental terms for the project. UF
allows the project to use its name and affiliation to attract tenants,
and it provides services on-site. When the project’s repayment
obligations are satisfied, UF is entitled to legal title without
payment. UF would also be entitled to compensation in any
condemnation proceedings once any remaining repayment
obligations are paid. Moreover, as we previously determined, the
pertinent documents established the existence of a trust for UF’s
benefit. See Crapo, 

at 410; see also Imagine Ins. Co. v.
State ex rel. Dep’t of Fin. Servs., 

, 700 (Fla. 1st DCA
2008) (noting that a “trust beneficiary possesses an equitable
ownership in the trust property, while the trustee possesses legal
title to the property”). As such, we find no merit in Appellant’s
argument that the trial court erred in determining that UF is the




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equitable owner of the property and that, as a result, the property
is immune from ad valorem taxation. *

    Accordingly, we affirm the Final Declaratory Judgment.

OSTERHAUS and BILBREY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

John C. Dent, Jr., and Jennifer A. McClain of Dent & McClain,
Chartered, Sarasota, for Appellant.

David K. Miller of Broad and Cassel LLP, Tallahassee, for Appellee
Provident Group – Continuum Properties, L.L.C.




    *  Given our disposition as to the trial court’s immunity
determination, we need not address its alternative tax exemption
conclusion. See 

(noting that there are
two reasons why a property would not be subject to tax: (1) the
property is immune or (2) the property is exempt and that while
immunity occurs when a “taxing government simply lacks power
to tax certain property because it is owned by a sovereign
government,” a tax exemption occurs when “the taxing
government, in a manner authorized by the state constitution,
enacts a law excluding otherwise taxable properties from the tax,
typically because the properties are both used for a tax-exempt
purpose and owned by a tax-exempt entity”).

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