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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
  • 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
  • Homestead Declaration

    What are the benefits of filing a homestead declaration?I was in a car accident. I am sued, can they go after my home? If I file homestead declaration, will this protect me?Thank you.
    • Re: Homestead Declaration

      Filing a homestead declaration effects the burden of proof if a judgment creditor wants to sell you home to enforce a judgment. You are already entitled to the homestead exemption under the law, but there is no harm in filing the declaration.If they sue you and win and you don't have enough insurance, they can legally go after you home. The process is rather expensive and cumbersome, so the more likely outcome is that they will put a lien your home and wait for you to sell or refinance.You might want to consider consulting a bankruptcy attorney if you risk having a big judgment entered against you.

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

      This is a good summation taken from a case:In California, a homestead exemption may be asserted two ways. [3] First, a declaration of homestead may be recorded. (Code Civ. Proc., § 704.920.) A recorded homestead protects the property from execution by certain creditors to the extent of the amount of the homestead exemption. (In re Mulch (Bankr. N.D. Cal. 1995) 182 B.R. 569, 572 [applying California homestead exemption].) [4] Because many California debtors failed to file homestead exemptions, the legislature in 1974 enacted legislation which created an "automatic" homestead exemption. fn. 2 (Code Civ. Proc., § 704.720.) This exemption need not be memorialized in a recorded homestead declaration in order to be effective. "The automatic homestead exemption is available when a party has continuously resided in a dwelling from the time that a creditors' lien attaches until a court's determination in the forced sale process that the exemption does not apply." (In re Mulch, supra, at p. 572; Webb v. Trippet (1991) 235 Cal.App.3d 647, 651.) {Page 112 Cal.App.4th 589} [5] As noted in In re Mulch, the two exemptions are distinct protections and they operate differently. The declared homestead provides greater rights than the automatic homestead. The declared homestead provides protection from a voluntary sale; judgment liens only attach to the equity in excess of consensual liens; and the protections of the declared homestead survive the death of the homestead owner. The proceeds from a voluntary sale may be reinvested within six months, thus allowing the debtor to invest in another residence. (In re Mulch, supra, 182 B.R. at p. 573.) On the other hand, the automatic homestead only entitles the debtor to protection from a forced execution sale. (Ibid.)

      Daniel Harrison
      Berger Harrison, APC
      2700 Pacific Coast Hwy., Suite 200
      Newport Beach, CA 92663
  • 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
  • Declaration of Homestead

    Can I do a Declaration of Homestead if I do not live in the subject property? I still own the property but it is now being rented since I bought and moved to a new home. Also, the subject property was originally under my name and my deceased husband. It was tranferred to just my name when he died. Now that I remarried, can I still do a Declaration of Homestead under just my name since the property is just mine? If the answer is yes, what form should I use, married or single?
    • Re: Declaration of Homestead

      The first question I would ask you if you were in my office, is why do you want to record a declaration of homestead? In California, a homestead is a form of exemption that protects a certain portion of real property from becoming property subject to a levy by a judgment creditor.Most people that need a homestead are either judgment debtors who are claiming an exemption to prevent their home from being sold in an execution sale to pay off a judgment, or they are filing bankruptcy. The amount of a homestead exemption is determined by Code of Civil Procedure section 704.730. To answer your first question, you could record a declaration of homestead on real property that you are renting, but you would only be exempt up to $50,000.00. (Code of Civ. Proc. sec. 704.730 subd. (a)(1).)What this really boils down to can be illustrated by the following hypothetical. You own two parcels of real property, and have recorded a homestead on the property that you are renting to someone else. You are sued and a judgment creditor executes on your real property for a $100,000.00 judgment. Can the judgment creditor execute on the property that you have recorded a homestead exemption for? You bet! Your exemption is only for $50,000 under the express terms of Code of Civil Procedure section 704.730. Depending on the value of the real property, the homestead may or may not be sold. Code of Civil Procedure section 704.800 states that "[i]f no bid is received at a sale of a homestead pursuant to a court order for sale that exceeds the amount of the homestead exemption plus any additional amount necessary to satisfy all liens and encumbrances on the property, including but not limited to any attachment or judgment lien, the homestead shall not be sold...."So in this hypothetical, if the bid was high enough to pay off any encumbrances (liens, mortgages, etc.) and the judgment lien, and your homestead exemption, then the property could be sold, and you are left with a check for the amount of a homestead exemption. But under this hypothetical, this is insane, because the judgment creditor would be better off going against the property where you are, because there is no homestead exemption, and therefore after the liens and encumbrances are paid, he or she is more likely to be able to satisfy the judgment.In that scenario, you would be on the street, with a renter in a property you had recorded a homestead exemption on. You probably could not kick out the renter, because he or she was under a lease.So unless someone is after you right now on a judgment, or you are filing for bankruptcy, recording a homestead exemption is simply insanity. (Not to mention that you would probably not be able to refinance while the homestead exemption was recorded on your real property.)If you have any questions, do not hesitate to e-mail me. I will give you all the information you want for free. Very truly yours,Anthony Roach, Esq.

      Anthony Roach
      Law Office of Anthony A. Roach
      18553 Clark Street #105
      Tarzana, CA 91356-3439
    • Re: Declaration of Homestead

      It is my understanding that a homestead will not be recognized for a home in which neither a close family member or you live at the time the homestead exemption is to be used. That is a creditor attempts to collect a judgement or you file bankruptcy.

      Lyle Johnson
      Lyle W. Johnson Attorney at Law
      152 N. Third Street, Suite 510
      San Jose, CA 95112
    • Re: Declaration of Homestead

      You cannot homestead, nor do you have an "automatic" homestead exemption, in a house that isn't your primary residence, whether or not you own it.Furthermore, a declared homestead is a red flag to your creditors and potential creditors that you may be in financial difficulties. Since the automatic homestead provides similar protection, a declared homestead is a bad idea for most.

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

    I am currently engaged in a lawsuit. If I lose, the defendant wants reimbursement for legal expenses. If I should lose the lawsuit, I do not want to lose my home. If I file a homestead declaration what protection do I have?And, what exactly IS a homestead declaration. I am single; the home is in my name only. I do have a daughter, age 23, away at college. Her name is not on the deed.
    • Re: Homestead declaration

      "Homestead" as used nowadays in California refers to the exemption of a portion of a homeowner's equity from seizure to satisfy debts. There are two kinds of homestead, and neither one provides complete protection. Here are the basics:First, there is the "automatic" homestead or "dwelling house exemption" which is available without the necessity of any pre-filing by the debtor. Then, there is the "declared homestead" which requires the pre-filing with the county recorder of a declaration of homestead naming the homestead owner, a street address or legal description of the premises covered by the declaration, and a statement that the premises is the principal dwelling of the claimant and that the claimant actually resides there on the date of filing.The protection afforded by the two is similar and overlapping, but not identical. In general, the amount of exempted (protected) equity is only $50,000, but in certain cases the amount can be $75,000 or $125,000. If you are represented by counsel in the lawsuit against you, ask your attorney which level you qualify for.Also note that the homestead exemption will not protect equity in excess of the exempted amount, and thus a sale can still be forced to tap any excess equity; also, the exemption affords little if any protection on mortgage loan defaults or other pre-existing liens on the property.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • Declaration of Homestead Coverage one or both married spouses?

    Hello, I live in Massachusetts. I am a female and I own my home currently with my husband as Tennents by entirety and do have a mortgage. I put a homestead on the property with my first husband, we were divorced and I kept the homestead revised in my name (it was always in just my name) and I did remarry and updated my name to reflect my married name. MY QUESTION: My husband has a creditor who is trying to put a lien to attach my house & property. Can the creditor do that even though I soley have a homestead in my name on the property and not my husband? How does that work and does it matter if the holder of the homestead act is male or female or has to be the husband? Can husband put on a homestead in his name as well or do we have to redue as husband and wife a new homestead declaration? Thank you.
    • Re: Declaration of Homestead Coverage one or both married spouses?

      Only one person may record a Declaration of Homestead. If two or more people sign the homestead declaration, it is NOT invalid, but it is valid for the FIRST person to sign it. On the other hand, a homestead is for the benefit of the entire family, so your husband benefits from your homestead, too. A homestead does not prevent a creditor from getting a lien. It would only prevent the creditor from collecting any money when the home is sold or the mortgage refinanced so long as the debt arose after the homestead.

      David Baker
      Law Office of David Baker
      236 Huntington Avenue, Room 306
      Boston, MA 02115
  • homestead declaration

    Im trying to obtain a homestead declaration form for my home in volusia county fla cant seem to find it
    • Re: homestead declaration

      The property appraisers office will have it. Contact them. May be available from their web site, but the forms will be at the property appraiser's office.

      Alan Wagner
      Wagner, Vaughan & McLaughlin, P.A.
      601 Bayshore Boulevard; Suite 910
      Tampa, FL 33606
    • Re: homestead declaration

      NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.There is no need to file a homestead declaration. Whomever might have told you so is incorrect. In order to obtain a homestead exemption for your property, you need to file it with the Volusia County Property Appraiser's Office. There are four locations. Information on the homestead exemption can be found online at the Property Appraiser's office site at: http://webserver.vcgov.org/cust.htmThe application is found there as well as information on how to complete the form.Scott R. Jay, Esq.

      Scott R. Jay
      Law Offices of Scott R. Jay
      1575 Northeast 205th Street
      Miami, FL 33179-2133
  • What is a ''Declaration of Homestead''?

    I'm applying for a mortgage. The closing attorney asked whether I'd like purchase a ''Declaration of Homestead''. What is that and what does it do?Thanks.
    • Re: What is a ''Declaration of Homestead''?

      A properly filed homestead protects up to $300,000 of your equity in the house. It does not apply to the mortgage or to any other lien recorded prior to the homestead. If you fail to pay the mortgage, the bank can and will foreclose. For example, if the house is worth 400,000 and you have 200,000 first mortgage and 100,000 second mortgage then you have 100,000 equity in the home. The homestead would protect this equity from being attached by a judgment creditor. For more info http://www.salemdeeds.com/html/homestead.html.

      Robert Trant
      Law Office of Robert R. Trant
      678 Massachusetts Ave
      Cambridge, MA 02139