The question of abandonment of a homestead is a question of fact. Falconer v. Farmers Union Oil Co., 260 N.W.2d 1, 2 (N.D. 1977). Whether there was abandonment of a homestead must be proved by clear and convincing evidence. Larson v. Cole, 33 N.W.2d 325, 326 (N.D. 1948). Such a determination is made upon consideration of all the facts and circumstances presented. See 40 Am. Jur. 2d Homestead § 173 at 397 (1999).
A finding of fact is clearly erroneous only if induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the court is left with a firm conviction that a mistake has been made.
Abandonment of a homestead is generally a waiver of the homestead exemption. See 40 Am. Jur. 2d Homestead § 173 at 397. Our homestead exemption is set out in the state constitution and is basically defined as follows:
The homestead of any person, whether married or unmarried, residing in this state shall consist of the land upon which the claimant resides, and the dwelling house on that land in which the homestead claimant resides, with all its appurtenances, and all other improvements on the land, over and above liens or encumbrances or both. The homestead shall be exempt from judgment lien and from execution or for sale, except as otherwise provided in this chapter. In no case shall the homestead embrace different lots or tracts of land unless they are contiguous.
Homestead rights are a creature of statute and, it seems, peculiar to America. See 40 Am. Jur. 2d Homestead § 2 at 251. Historically, homestead laws were established on considerations of public policy, their purpose being to protect the family to the end that it may not be without a home or opportunity for self-support. Strong public policy supports the statutory provisions providing for the homestead exemption.
More specifically, the precise intent of the homestead provisions is to place designated homestead property out of the reach of creditors while it is occupied as a home, or as otherwise stated, to secure a debtor and his family essential shelter from creditors. See 40 Am. Jur. 2d Homestead § 4 at 253-54. While recognizing that the purpose of the exemption is to guarantee the family a place to live, it has also been stated that the right to claim the homestead exemption is not without limits.
If the debtor abandons his or her homestead rights, the property becomes subject to execution, levy, and sale to satisfy a judgment.
1. The law does not favor the abandonment of the homestead and the statutes must be liberally construed for the protection thereof.
2. When a homestead status of property has been established, the burden of proving its abandonment, by the clear and convincing preponderance of the evidence, is on the party who alleges such abandonment.
3. To constitute an abandonment of homestead rights removal from the premises must concur with an intention to discontinue their use as a home.
The dominant element of abandonment is intent. To find abandonment, the trial court must determine that the debtor has voluntarily departed from the homestead property and left without the intent to return and occupy it as a home. A debtor's subjective intent is not a reliable indicator; thus, a trial court will often look to the debtor's conduct to determine the objective intent. In cases regarding the abandonment of the homestead where intent is the vital question at issue, the findings of the trial court who saw and heard the witnesses must be given appreciable weight.
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