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Liabilities Enforceable against Homestead

Author johnbsims3
Admin Male

#1 | Posted: 18 Dec 2006 17:19 
40 C.J.S. Homesteads § 54
Corpus Juris Secundum

Homesteads
III. Liabilities Enforceable against Homestead

§ 54. Liabilities existing before establishment of homestead

Subject to limitations, generally, obligations or liens existing prior to the establishment of the homestead right will not be defeated where the debtor subsequently claims that the premises are his homestead. In order to preserve the homestead right against debts it is necessary, prior to the creation of the debts, to record the deed conveying the homestead.
Although there is authority to the contrary,[FN49] general obligations existing prior to the establishment of the homestead right will not be defeated where the debtor subsequently claims that the premises are his homestead.[FN50]

However, a homestead is exempt from the owner's debts incurred after its acquisition.[FN51]


Prior liens.
While in some jurisdictions the rule is otherwise, or at least subject to limitations or modifications,[FN52] generally, the exemption cannot be claimed as against valid liens which have attached to the premises before they are impressed with the homestead character, whether such liens are obtained by contract or operation of law.[FN53] The material time for determining the priority of a lien over a claim of homestead exemption is the time the lien would have attached if the homestead exemption were not applicable.[FN54] Where the homestead right and the lien attach simultaneously, the homestead right has priority.[FN55]

The rule has been applied in cases of liens created by judgment,[FN56] liens created by levy of execution,[FN57] liens created by attachment,[FN58] mechanics' liens,[FN59] and materialmen's liens.[FN60]

Where the homestead is abandoned and later resumed, intervening liens are unaffected.[FN61] However, on the discharge of the liens the exemptions may become effective.[FN62]


Before debtor has acquired personal homestead status.
In accordance with, and subject to, the limitations of the general rule, it is frequently held that no homestead can be claimed as against a lien which attached to the land when the debtor was not entitled to an exemption because he had not acquired the personal status giving him the exemption privilege.[FN63]

However, a contrary view has been taken,[FN64] but even where the contrary view prevails, a nonresident moving into the state cannot, by occupying property on which a lien has become fixed, acquire a homestead exemption as against the lien.[FN65]


Before registration of deed conveying homestead.
Under the statutes which provide that a homestead shall be subject to execution on all causes of action existing at the time of acquiring the homestead and that such time shall date from the filing of the deed of the homestead for record, it is necessary, in all cases to preserve the homestead right against debts, that the deed should have been filed before the creation of such debts,[FN66] even though the owner had lived on the land as his home until he filed his deed for record.[FN67]


Summary

Where occupancy is required before the homestead privilege attaches, the homestead exemption cannot ordinarily be claimed as against valid liens which have attached to the premises, or claims which have arisen, prior to occupancy for homestead purposes.

Where occupancy is required before the homestead privilege attaches, as discussed supra § 15, if the premises are not actually occupied at the time of levy they cannot be claimed as exempt.[FN68]

The general rule, stated supra subdivision a of this section, will apply where it is sought to claim the exemption as against judgments,[FN69] other liens,[FN70] or even general claims,[FN71] existing prior to occupancy of the premises for homestead purposes.


Summary

Generally, where a declaration of homestead is essential to the acquisition of the exemption, the homestead is exempt only as against debts contracted after the recording of such declaration.

Where a declaration of homestead is essential to the acquisition of the exemption, as discussed supra § 21, the homestead is exempt only as against debts contracted after such declaration of homestead has been recorded;[FN72] and a fortiori, the recording of a declaration of homestead has no effect on prior liens.[FN73]

Under other authority, where such a declaration of a homestead is required, the exemption may be claimed, provided the declaration is registered prior to the attachment of a lien;[FN74] but if the attachment of the lien antedated the filing of the declaration of exemption the premises may be sold to discharge the lien.[FN75] However, the prior attachment lien is defeated by the subsequent declaration of a homestead recorded before judgment.[FN76]

A homestead is immune from a judgment lien, execution or forced sale if the formal declaration of the existing exemption is made prior to the time set for sale or execution.[FN77]


Summary

A debtor, by executing a mortgage on real estate in which he has previously established no homestead rights, or a conveyance in trust to secure a debt, prevents the assertion of such homestead rights as against the mortgagee or grantee.

In accordance with, and subject to, the limitations of the general rule stated supra subdivision a of this section a debtor, by executing a mortgage on real estate in which he has previously established no homestead rights, prevents the assertion of such rights as against the mortgagee.[FN78]

Even though a mortgage is executed after the premises become a homestead, if it does not create a new, but only changes the form of, a prior lien, no exemption exists.[FN79]

A statute providing that the homestead is subject to execution or sale in satisfaction of a judgment obtained on debts secured by a mortgage on the premises executed before the declaration of homestead was filed for record contemplates a live mortgage at the time of the execution or sale, and not one the lien of which has been barred by limitations prior to the declaration of homestead before final judgment on the debt,[FN80] and the filing of a declaration of homestead in such case prior to entry of a money judgment on the indebtedness originally secured by the mortgage exempts the property from execution.[FN81]

A conveyance in trust to secure a debt is governed by the same rules as is a mortgage.[FN82]


[FN49] Ky.—Hensey v. Hensey, 17 S.W. 333, 92 Ky. 164, 13 Ky.L. 426.

Recording of lis pendens

Creditor's action in filing a notice of lis pendens in connection with state court action against bankrupt did not create lien of any sort on bankrupt's homestead property, and fact that creditor's lis pendens was recorded prior to bankrupt's homestead did not give creditor any superior rights as against bankrupt.
U.S.—In re Ehmke, Bkrtcy.Cal., 4 B.R. 331.
[FN50] Fla.—Kirkland v. Kirkland, 253 So.2d 728, certiorari denied259 So.2d 716.

Iowa—Kramer v. Hofmann, 257 N.W. 361, 218 Iowa 1269.

Mo.—Dent v. Dent, 166 S.W.2d 582, 350 Mo. 560.
[FN51] Iowa—In re Williams' Estate, 216 N.W.2d 568.
[FN52] Ariz.—Grand Real Estate, Inc. v. Sirignano, App., 676 P.2d 642, 139 Ariz. 8.
[FN53] U.S.—In re Russell, Bkrtcy.M.D.Fla., 60 B.R. 190.

Ala.—W.T. Rawleigh Co. v. Patterson, 195 So. 729, 239 Ala. 309.

Fla.—Bessemer v. Gersten, 381 So.2d 1344.

Kan.—Bohl v. Bohl, 670 P.2d 1344, 234 Kan. 227.

La.—Williams v. Continental Bank & Trust Co., 137 So. 59, 173 La. 353.

N.D.—First State Bank of Gackle v. Fischer, 272 N.W. 752, 67 N.D. 400.

Tex.—Inwood North Homeowners' ****, Inc. v. Harris, 736 S.W.2d 632.

Utah—McMurdie v. Chugg, 107 P.2d 163, 99 Utah 403.

Wis.—In re Hogan's Estate, 282 N.W. 5, 229 Wis. 600.

Prior relinquishment of homestead claim

Condominium apartment owner relinquished his homestead claim where he signed the papers relating to the purchase thereof before moving in, and deed and deed of trust represented that he took apartment subject to condominium which declaration designated that homeowner's council had assessment lien for any unpaid assessments and thus, assessment lien constituted valid preexisting debt which prevailed over homestead claim.
Tex.—Johnson v. First Southern Properties, Inc., App. 14 Dist., 687 S.W.2d 399, error refused no reversible error.
Spouse's homestead claim

Where husband's separate property is subjected to valid homestead claim by wife who is granted divorce, her interest will not defeat husband's creditor whose claim has already attached as lien upon property.
Cal.—Robbins v. Bueno, 68 Cal.Rptr. 347, 262 C.A.2d 79.
[FN54] U.S.—In re Yamin, Bkrtcy.S.D.Tex., 65 B.R. 938—In re Russell, Bkrtcy.M.D.Fla., 60 B.R. 190.

Fla.—Nationwide Financial Corp. of Colorado v. Thompson, App., 400 So.2d 559.
[FN55] Fla.—Bowers v. Mozingo, App., 399 So.2d 492.
[FN56] U.S.—Lyon v. Arnold, C.C.A.Fla., 46 F.2d 451.

In re Dawkins, Bkrtcy.Tex., 11 B.R. 213.

Ala.—W.T. Rawleigh Co. v. Patterson, 195 So. 729, 239 Ala. 309.

Fla.—Moorhead v. Yongue, 183 So. 804, 134 Fla. 135.

Minn.—Rusch v. Lagerman, 261 N.W. 186, 194 Minn. 469.

Neb.—Welch v. Falk, 291 N.W. 488, 137 Neb. 764.

Wis.—Qualley v. Zimmerman, 285 N.W. 735, 231 Wis. 341.

Lien attaching while debtor unmarried

Creditor's judgment lien was superior to judgment debtor's homestead claim for, although judgment lien came into existence while debtor was married, judgment lien attached during interval between debtor's divorce and remarriage, while debtor was a single person and not entitled to a homestead right, and was not divested by later acquired homestead right upon remarriage.
N.D.—Young v. White, 267 N.W.2d 799.


Recorded judgments

Fla.—Aetna Ins. Co. v. LaGasse, 223 So.2d 727.
[FN57] Tex.—Watson v. Texarkana City Nat. Bank, 119 S.W. 915, 56 Tex.Civ.App. 138, error refused.
[FN58] S.C.—Ex parte Morrow, 190 S.E. 506, 183 S.C. 170.
[FN59] Okl.—Ketcham v. Cunliff, 187 P. 1095, 77 Okl. 287.
[FN60] Tex.—Clem Lumber Co. v. Elliott Lumber Co., Com.App., 254 S.W. 935.
[FN61] Cal.—White v. Rosenthal, 35 P.2d 154, 140 C.A. 184.
[FN62] Fla.—Pasco v. Harley, 75 So. 30, 73 Fla. 819.
[FN63] U.S.—In re Porter, D.C.Fla., 3 F.Supp. 582.

Fla.—Moorhead v. Yongue, 183 So. 804, 134 Fla. 135.

La.—Prudential Ins. Co. of America v. Guillory, 145 So. 6, 175 La. 1058.
[FN64] Ga.—Kirkpatrick Hardware Co. v. Rogers, 134 S.E. 806, 35 Ga.App. 790.

Wash.—Brown v. Manos, 250 P. 36, 140 Wash. 525.
[FN65] Miss.—Meyer Bros. Drug Co. v. Fly, 63 So. 227, 105 Miss. 752.
[FN66] Mo.—Tennent v. Pruitt, 7 S.W. 23, 94 Mo. 145.
[FN67] Mo.—Tennent v. Pruitt, 7 S.W. 23, 94 Mo. 145.
[FN68] Ark.—De Loney v. Dillard, 40 S.W.2d 772, 183 Ark. 1053.

Acquiring joint tenant's interest subject to lien

Wife, who had been conveyed husband's interest in land held in joint tenancy by them after money judgment had been entered against him and who acquired husband's interest subject to lien, could not claim her interest in land as a homestead exempt from lien where husband and wife could not and did not occupy the land until months after creditor's lien had attached to husband's interest.
Ark.—Automotive Supply, Inc. v. Powell, 599 S.W.2d 735, 269 Ark. 255.
Encumbrances by record title holders

Encumbrances placed on property by corporation as record title holder, prior to occupancy of such property by individuals as their homestead under tenancy at will, could not be affected by subsequent impressment of any homestead interest.
Tex.—Shepler v. Kubena, Civ.App., 563 S.W.2d 382.
[FN69] Ark.—De Loney v. Dillard, 40 S.W.2d 772, 183 Ark. 1053.

Ill.—Rawlins v. Launer, 17 N.E.2d 330, 369 Ill. 494.

Minn.—Rusch v. Lagerman, 261 N.W. 186, 194 Minn. 469.
[FN70] Mich.—McMonegal v. Wilson, 61 N.W. 495, 103 Mich. 264.
[FN71] Iowa—Kramer v. Hofmann, 257 N.W. 361, 218 Iowa 1269.

Mo.—Poplar Bluff Trust Co. v. Bates, 31 S.W.2d 93, 224 Mo.App. 636.
[FN72] W.Va.—Cabell v. Given, 5 S.E. 442, 30 W.Va. 760.
[FN73] W.Va.—Cabell v. Given, 5 S.E. 442, 30 W.Va. 760.

Judgment

Cal.—San Diego County Carpenters Group Ins. v. Lorea, 169 Cal.Rptr. 157, 112 C.A.3d 221.
[FN74] Cal.—Beaton v. Reid, 44 P. 167, 111 C. 484.
[FN75] Cal.—White v. Rosenthal, 35 P.2d 154, 140 C.A. 184.
[FN76] Cal.—Becker v. Lindsay, 127 Cal.Rptr. 348, 545 P.2d 260, 16 C.3d 188.
[FN77] Necessity of prior existence of homestead

Interest in real property held by judgment debtor, who was entitled to homestead exemption before judgment lien was recorded, was immune from such lien, though debtor did not formally claim the homestead exemption until after the judgment was docketed.
Utah—Sanders v. Cassity, 586 P.2d 423.
[FN78] Ark.—Raines v. O'Neal, 72 S.W.2d 235, 189 Ark. 365.

La.—Twin City Finance Corp. v. Ballard, App., 373 So.2d 736, writ denied376 So.2d 962.

Tex.—Inwood North Homeowners' ****, Inc. v. Harris, 736 S.W.2d 632.

Wash.—Davies v. Metropolitan Life Ins. Co., 71 P.2d 552, 191 Wash. 459, appeal dismissed59 S.Ct. 465, 306 U.S. 665, 83 L.Ed. 1061.
[FN79] Cal.—Swift v. Kraemer, 13 C. 526, 73 Am.D. 603.
[FN80] Mont.—Siuru v. Sell, 91 P.2d 411, 108 Mont. 438.
[FN81] Mont.—Siuru v. Sell, 91 P.2d 411, 108 Mont. 438.
[FN82] U.S.—Green v. Ætna Life Ins. Co., C.C.A.Tex., 30 F.2d 100, certiorari denied49 S.Ct. 481, 279 U.S. 861, 73 L.Ed. 1001, rehearing denied50 S.Ct. 79.

Cal.—Bracey v. Gray, 121 P.2d 770, 49 C.A.2d 274, affirmed162 P.2d 314, 71 C.A.2d 206 and 189 P.2d 3, 31 C.2d 426, certiorari denied66 S.Ct. 961, 327 U.S. 809, 90 L.Ed. 1033 and 68 S.Ct. 1502, 334 U.S. 850, 92 L.Ed. 1773.

Colo.—Farley v. Harvey, 25 P.2d 185, 93 Colo. 105.

Tex.—Andrews v. Security Nat. Bank of Wichita Falls, 50 S.W.2d 253, 121 Tex. 409.
http://www.floridahomesteadservices.com

Author wblakesx
Participant Male

#2 | Posted: 5 Jun 2007 04:46 
As I understand homestead there are two types of filing, one for tax purposes but there is another type also. Can you distinguish these with respect to the above. The specific matter at hand is a homestead filed for tax purposes which is under attack by code enforcement. The Admin Hearing went against us when we plainly should have won, the matter is going to appeal ( filing deadline for second extension of time is june 7, 2007). What does it take to avoid the threatened attempt to attach a lien? Should I care about the fines as a practical matter? I am mainly appealing because of the unjust nature of the code enforcers attempt at revenue enhancement.
thanks much for a wonderful service.

Author johnbsims3
Admin Male

#3 | Posted: 11 Jun 2007 19:11 
You are welcome! and thanks for registering...There is plenty on this site regarding homestead and code enforcement. I would not worry. A code enforcement lien is not able to be foreclosed on real property that is homestead. I would make sure that you declare the property as a homestead so that it is set apart and not able to be levied against by any creditor. Code enforcement is not to be used as a revenue agency, but unfortunately our local or county governments do it all the time...

Here are some other threads to read...

http://www.homesteadpropertyexemption.info/index.p hp?action=vthread&forum=10&topic=123&page=0#msg553

http://www.homesteadpropertyexemption.info/index.p hp?phrase=code+enforcement+lien&searchType=0&where =0&forum=&sDay=17&sMonth=10&sYear=2006&eDay=11&eMo nth=6&eYear=2007&posterName=&action=search&searchG o=1
http://www.floridahomesteadservices.com

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