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Questions and Professional Answers

Questions and Professional Answers

  • California Homestead declaration

    We filed a homestead declaration with the state of California when we first bought our house in 1988. Since then we have refinanced a couple of times. Do we need to file a new Homestead Declaration every time we refinance?
    • Re: California Homestead declaration

      No.

      Carl Starrett
      Law Offices of Carl H. Starrett II
      1941-C Friendship Drive
      El Cajon, CA 92020-1144
  • homestead

    How do I homestead in californiaThere is a home here that has beenempty for at least 20 years and the owner does not respond . How do I help myself ?
    • Re: homestead

      What you're asking about isn't homesteading. The 19th-Century concept of homesteading was that if a settler occupied and improved empty government land for X years, the land office would give him a deed. What you seem to have in mind is "adverse possession," a quite different concept which basically holds that if X occupies the property of Y for five years continuously, without express or implied permission from Y, and pays all the taxes, X may claim legal title in a quiet title action and Y may not oppose (well, actually, Y can oppose, but if X has satisfied all the conditions, X will be granted title).Under the circumstances you describe, it looks like you are a long way from being able to claim title by adverse possession. In the first place, you are not in possession. In the second place, you probably haven't paid the taxes and the owner probably pays them regularly. So, you're out of luck.It's a fairly common thing in California (and elsewhere in the U.S. perhaps even more) for older houses to be semi-abandoned because the cost to fix them up or the cost to heat and cool them is out of line, but the owners still don't want to sell for family sentimental reasons, ennui, or maybe the property is tied up in an estate conflict.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
    • Re: homestead

      Mr. Whipple, as always, is entirely correct. You have appeared to mix up legal terms. Homesteading now means that yo are allowed to keep a certain amount of equity in your home if you file for bankruptcy or are gone after by a creditor.

      George Shers
      Law Offices of Georges H. Shers
      4170 Glenwood Terrace, Suite #1
      Union City, CA 94587
  • homestead

    Is the homestead act enforced in california. regarding real property?
    • Re: homestead

      California has two kinds of homestead; both are described in the Code of Civil Procedure (CCP), and both are indeed enforced!The first kind of homestead is the so-called automatic homestead, or homestead exemption. It's set forth in the CCP as sections 704.710 to 704.850. It exempts portions of your home equity from creditor claims in the event of a judgment against you. It's automatic and available when needed without the necessity of filing anything, but the protection given is less in some respects than that available from a declared homestead.A homeowner can also record a declared homestead by filling out and recording a fairly simple one-page form (available from stores that sell pre-printed legal forms and stationery). CCP sections 704.910 to 704.995 cover declared homesteads. A declared homestead has certain greater protection and other advantages and is worth recording by a homeowner who feels threatened by lawsuit, but is unnecessary for most folks.Please note that these homestead laws are there to prevent homeowners from losing their modest homes in the event of being sued. The modern laws have nothing to do with the 18th and 19th Century concept of homesteading, where settlers could claim government land by settling and cultivating it for a certain number of years. That can no longer be done (as far as I know); I'd guess the last applicability of the pioneer-days homesteading laws was in Alaska in the 1930s.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • CA System 2 - Renter & Homestead Exemption?

    IN BRIEF: If I live in a rental apartment, is the''unused portion of homestead'' exemption'' availableas part of the wild card exemption under CaliforniaSystem 2? (i.e., all of it)AT LENGTH:In the guidebook I'm reading, the description of ''homestead exemption'' is as follows: ''Real or personal property, including co-op, used as residence to $15,000; UNUSED PORTION of homestead may be applied to ANY property.'' [emphasis added]AND: Under ''wild card exmption, there are twocomponents: * $800 of any property * Unsued portion of homestead or burial exemption, of any property.The answer should probably be obvious, butI must admit I'm confused by the language.Thanks . . .
    • Re: CA System 2 - Renter & Homestead Exemption?

      Yes, you can use that wildcard to cover $15,800

      Ken Koury
      Kenneth P. Koury, Esq.
      22425 Ventura Blvd., #286
      Woodland Hills, CA 91364
  • declaration of homestead

    We purchased our home in 3/97 and filed a declaration of homestead in massachusetts. We refinanced in Jan 1998 and were not required to re-file the homestead. We just refinanced again this month with a different lender who required us to release (or waive ) the homestead. Now i have to re-file it........why would a lender require a release on the homestead?Second part of my question is we have a judgement for a credit card which has not been executed yet......since we had to release the homestead to refinance does this leave our home vulnerable....or does refiling the homestead take care of that......the debt was from 1997 and thats when we filed the original homestead. (homestead was filed before the debt began)
    • Re: declaration of homestead

      The new bank asked you to relese the homestead because it doesn't understand that mortgages are not affected by homesteads; homestead protect the equity in your home >above< any mortgages. The credit card part of your question is interesting; I would argue that the original homestead protected the home against the execution. Keep in mind, however, that a really nasty creditor could still force a sale of the home in certain circumstances, so don't think that the homestead is absolute protection! Best wishes.

      David Baker
      Law Office of David Baker
      236 Huntington Avenue, Room 306
      Boston, MA 02115
  • Homestead Act California

    If I'm married but purchased the house as a single person, and have not added my husband's name, do I file the Homestead single or couple form?
    • Re: Homestead Act California

      For years homestead protection in California has been automatic. If you have the forms, read them carefully to see why they need to be filed; if they do not say why, call up the issuing governmental agency and ask why. The answer should be they do not need to be filed.

      George Shers
      Law Offices of Georges H. Shers
      4170 Glenwood Terrace, Suite #1
      Union City, CA 94587
    • Re: Homestead Act California

      The previous answer disregards the fact that there are two kinds of homestead exemption in California, with somewhat but not completely overlapping protection - and neither protects a homeowner completely! They are the so-called "automatic homestead," which is simply a law that says a creditor cannot seize certain parts of a homeowner's equity; and the so-called "declared homestead" which adds some further protection, but requires that the homeowner file a declaration of homestead containing certain information with the county recorder's office.There is NO OFFICIAL FORM for filing a declaration of homestead. The paper to be recorded can be done more or less free-form by the homeowner using a typewriter or word processor, or even in handwriting as far as I know.Some pre-printed forms are also available from various vendors. I understand from receiving questions like yours in the past, that these form sellers have both a single-person and a married couple version. Unfortunately, the form producers don't also produce instructions that clarify when each should be used.Code of Civil Procedure section 704.930 specifies what a homestead declaration must contain. At subsection (a)(1), it says "....a husband and wife both may be named as declared homestead owners in the same homestead declaration if each owns an interest in the dwelling selected as the declared homestead."Based on this, co-ownership rather than marital status seems to be controlling as to the contents of the declaration. Therefore, my best guess without seeing this vendor's actual forms would be that the one for single persons would be more appropriate.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • Homestead right

    Can you explain the Homestead Right Law in California?
    • Re: Homestead right

      Thanks for your question. I think you meant that you need an explanation of California's Homestead Exemption Act. There is also a historical Homestead Act, from the last century, which is interesting in regards to background, but which is superceded by current law. Here's a comprehensive explanation of the homestead act. (Sit down and get comfortable, this is going to take a while):California has a bifurcated homestead law. California's Code of Civil Procedure (C.C.P.) 704.710 to 704.850 concerns the state's "automatic homestead exemption." C.C.P. 704.910 to 704.995 covers the "declared homestead exemption." The protection provided by the automatic homestead exemption is separate and distinct from the protection afforded by a declared homestead. In re Mulch, 182 B.R. 569 (N.D. Cal. 1995). To use this automatic exemption, there must be a forced sale of the debtor's property. It must be emphasized that this type of homestead exemption exists is the absence of any recorded homestead declaration. In re Morse, 11 Cal. 4th 184, 900 P.2d 1170, 44 Cal. Rptr.2d 62D (1995); In re Sanford, 8 B.R. 761 (N.D. Cal. 1981); In re Wilson, supra.The construction of the law applies to declared homesteads as well. See, e.g., In re Jones, 106 F.3d 923 (9th Cir. 1997); In re Shelley, 184 B.R. 356, afl'd, 109 F.3d 639 (B.A.P. 9th Cir. 1995); Haaland v. Corporate Management, Inc., 172 B.R. 74 (S.D. Cal. 1989). A declaration of homestead protects property up to the level of exemption. Tassone v. Toyar, 33 Cal. Rptr.2d 786, 28 Cal. App.4th 765 (1994). The current exemption amounts are:1) $50,000, unless the judgment debtor or his/her spouse who resides in the homestead is described in paragraph 2 or 3;2) $75,000, if the judgment debtor or his/her spouse who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor;3) $125,000, if the judgment debtor or his/her spouse is a person 65 years of age or older; or a person physically or mentally disabled and as a result of that disability is unable to engage in substantial gainful employment; or a person 55 years of age or older with a gross annual income of not more than $15,000 if single or $20,000 if married, and the sale is an involuntary sale.C.C.P. 704.730. California has different levels of exemptions for different people. However, a declaration of homestead must be made and recorded to gain the benefits of the declared homestead laws. See, e.g., In re Amiri supra; In re Wilson, supra.I hope that this clears up your questions, and I invite you to call me at 714-568-1560, if you have any further questions.

      Robert Miller
      Robert L. Miller & Associates, A Law Corporation
      Orange County, Riverside Counties
      , CA
  • Homestead declaration-what does it protect?

    I understand that by filing a homestead declaration ahead of a judgement, the first $125,000 of home equity is protected. Assuming that the prevailing party forces the sale of the home to collect the judgement and the proceeds are insufficient to pay the judgement, are the proceeds from the homestead then subject to further attachment if placed in a bank account in California?
    • Re: Homestead declaration-what does it protect?

      If you have less equity than the homestead amount, then no sale can be forced. If equity exceeds the homestead and the house is sold, the protected amount can be banked for 6 months to give time to buy another house.

      Terry A. Nelson
      Nelson & Lawless
      2134 Main St., #130
      Huntington Beach, CA 92648
  • California Homestead Decalaration

    I am a widow, I don't know if I need to fill out the Single Homestead Declaration or the Couples Declaration.
    • Re: California Homestead Decalaration

      While it pains me to remind you of this, yes, you are now single.

      Michael Stone
      Law Offices of Michael B. Stone 310-776-7500
      3020 Old Ranch Parkway, Suite 300
      Seal Beach, CA 90740
    • Re: California Homestead Decalaration

      "Single" would be the correct form.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • Texas Homestead Law clarification

    A creditor has won a judgment against us and filed a lien on our homestead property.We currently rent the property but intend to return to our homestead in the near future. We have not established a new homestead.Q:Who long can we rent our homestead and still keep the exemption?Can we sell the property with a clear title. Does the lien hurt our ability to sell the homestead property?
    • Re: Texas Homestead Law clarification

      The fact that the property is rented raises a question as to homestead exemption. As it presently stands, you cannot sell with a clear title since the lien attaches to all property that you won in that county.Getting an attorney to clear your title may result in a lawsuit to prove up homestead.

      Peter Bradie
      Bradie, Bradie & Bradie
      6606 FM 1488, Suite 148-363
      Magnolia, TX 77354-2544