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15.2.4.1 Occupancy

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  6. 15.2.4.1 Occupancy

15.2.4.1 Occupancy

The establishment of a homestead generally requires actual occupancy, with intent to make the property one’s home.74 Nonetheless, the homestead exemption may apply to a home if the debtor is temporarily absent but intends to return.75 Occupying the land in something other than a permanent traditional home—for example, a travel trailer—may be sufficient.76 In some states, occupancy by a family member of the debtor may be sufficient.77 Immigrants who have the right to reside in the United States only temporarily may be unable to meet an occupancy requirement that requires an intent to reside in the home permanently.78 Homestead exemptions may be allowed even if occupancy is in violation of local zoning law,79 or if the titled debtor has failed to comply with recording requirements.80

Occupancy of the entire property may not be necessary to exempt it.81 For example, a debtor who owns a two-family house, occupies one unit, and rents out the other unit may be allowed to exempt the entire house.82 Likewise, a property may be the debtor’s homestead even if part of it is used for business purposes.83 Texas specifically exempts an urban homestead that is used for both residential and business purposes.84 One bankruptcy court allowed a rural debtor to claim that exemption as well.85

In many states, a debtor who lives elsewhere for a substantial part of the year may still claim a homestead in a less than full-time home.86 Courts will consider the duration and the reason for the occupancy, the existence of another residence, and other indicia of residency, such as the location of bank accounts, business, and voting or motor vehicle registration.87 The analysis is similar but not identical to the determination of residency for other legal purposes.88 The federal bankruptcy exemptions allow a debtor who owns and lives in more than one residence to choose which one to exempt.89

Footnotes

  • 74 In re Sacharko, 356 B.R. 786 (B.A.P. 1st Cir. 2007) (table; text available at 2007 WL 128775) (Rhode Island homestead exemption requires occupancy; no homestead exemption for ex-husband’s interest in former marital home that would not vest until child turned 19); In re Kelley, 300 B.R. 11 (B.A.P. 9th Cir. 2003) (Cal. law) (automatic homestead requires intent to reside permanently; not shown when owner moved into apartment, visited home “occasionally” to repair damage, and rented it to cousin; declared homestead continued because no new homestead established, but would not protect against forced sale); In re Antonie, 447 B.R. 610 (D. Idaho 2011) (debtor who jointly owned home occupied by her mother, but did not live there, could not exempt the home); In re Kology, 499 B.R. 20 (Bankr. D. Mass. 2013) (actual occupancy is key; absence of several years, living in trailer and “work camping” at campgrounds did not eliminate exemption when debtors were residing on property on petition date); In re Fling, 449 B.R. 580 (Bankr. N.D. Fla. 2011) (debtor re-established homestead in property that had been rented out to tenants, when he moved back in and stayed for eighteen months); In re Harris, 2010 WL 2595294 (Bankr. D. Idaho June 23, 2010) (denying Washington exemption for home located in Washington that was rented out to others when wife worked and attended school in Idaho and husband’s job prospects in Washington were dubious); In re Harwood, 404 B.R. 366 (Bankr. E.D. Tex. 2009) (newly divorced debtor, who had moved onto his separate property after marital home awarded to wife, could claim homestead in the property where he resided), aff’d on other grounds, 427 B.R. 392 (E.D. Tex. 2010); Meadow Groves Mgmt. v. McKnight, 689 So. 2d 315 (Fla. Dist. Ct. App. 1997) (where statute extended homestead exemption to manufactured home if it was on leased land that homeowner was entitled to possess, exemption terminated when homeowner was evicted from the lot); In re Tetreault, 11 A.3d 635 (R.I. 2011) (son whose interest in home derived from deceased mother’s will no longer met homestead exemption’s occupancy requirement once executrix gave him notice of termination of his tenancy and began eviction action against him); Gibson v. Fauber, 2004 WL 2002560 (Tex. App. Sept. 8, 2004) (debtor occupied home with mother, later with wife, lived elsewhere only when incarcerated or working at out of town jobs); Houghton v. Miller, 118 P.3d 293 (Utah Ct. App. 2005) (property not “primary personal residence” at time when judgment lien attached; debtor had filed homestead declaration and caused repairs to be begun but was living elsewhere). See also In re Jones, 397 B.R. 765 (Bankr. D.S.C. 2008) (debtors moved into smaller house they owned after former home became unaffordable; small house was homestead when it was equipped with “the appointments for comfortable living” and debtors actually lived there). See generally § 15.2.3.2, supra.

  • 75 See, e.g., In re Corbett, 2016 WL 4703481 (Bankr. N.D. Iowa Sept. 8, 2016) (intent to return shown when debtor occupied rental apartment close to his out-of-state job but spent vacation in family home and planned to return there in two years when his pension and Social Security payments began); In re Schott, 449 B.R. 697 (Bankr. W.D. Tex. 2011) (intent to stay away permanently not shown when debtor moved to city for business reasons, here to construct a “spec house”). But cf. Feucht v. Pierce, 2006 WL 3354507 (D.S.D. Nov. 15, 2006) (no homestead exemption for wife who had moved out of home jointly owned with estranged husband; intent to return that is “merely possible” or contingent on other event—here, husband’s departure or couple’s reconciliation—is insufficient); In re Schuster, 2006 WL 2711800 (D. Mont. Sept. 21, 2006) (residence required with some exceptions for temporary absence with intent to return; not shown here as debtor had not resided in condominium for ten years but intended to return when his dog died); In re Cochran, 2009 WL 605298 (Bankr. S.D. Ala. Mar. 9, 2009) (Alabama residency requirement is strict; intent to return requires showing of definite acts of preparation or “a firm plan,” not “an undefined floating intention”; debtor who temporarily moved in with parents and rented out homestead, because this was the only way he could afford mortgage, lost homestead exemption). But see In re Taliercio, 2012 WL 441421 (Bankr. D. Conn. Feb. 19, 2012) (denying exemption where, on petition date, property was rented to tenants on one-year lease; intent to return not sufficient). See generally § 15.2.4.2, infra (abandonment of homestead).

  • 76 In re Fisher, 486 B.R. 200 (Bankr. D. Kan. 2013) (allowing exemption of rural land on which debtor lived in trailer; crediting debtor’s testimony that he was separated from wife even though he used marital home as mailing address); In re Greene, 346 B.R. 835 (Bankr. D. Nev. 2006) (if debtor actually owns and occupies land, “mode of occupation” is irrelevant; here, debtor lived in travel trailer and had signed contracts to improve land and build house), rev’d on other grounds, 583 F.3d 614 (9th Cir. 2009) (reversing application of federal bankruptcy law’s 1215-day look-back period to this homestead); Olson v. Buttrum, 2014 WL 1316240 (Cal. Ct. App. Apr. 2, 2014) (exemption not lost when debtor occupied motor home on subject property while house was being renovated). See generally § 15.2.2, supra (non-traditional homesteads).

  • 77 In re Hall, 441 B.R. 680 (B.A.P. 10th Cir. 2009) (Kan. law) (debtor may claim homestead exemption either in own residence or in residence occupied by family; when wife resided in house and husband in manufactured home, each spouse must choose which interest to exempt); Flynn v. Farmer Masonry, Inc., 2008 WL 346032 (N.D. Iowa Feb. 6, 2008) (continued occupancy by non-debtor wife prevented judgment lien from attaching even though judgment debtor husband had moved out); In re Oyola, 571 B.R. 874 (Bankr. M.D. Fla. 2017) (household was a “family in fact”; allowing temporary U.S. resident to exempt house she occupied with permanent resident adult daughter and citizen grandchild); In re Jean, 2017 WL 3638180 (Bankr. D. Mass. Aug. 23, 2017) (automatic homestead exemption continued to exempt home where debtor’s children lived even though he terminated his own exemption for the property by mistakenly filing a homestead declaration for an investment property); In re Versace, 2017 WL 1501386 (Bankr. D. S.C. Apr. 26, 2017) (home is exempt if occupied by family members—here, adult daughter and daughter’s child—even if debtor does not reside there); In re Goulakos, 456 B.R. 729 (Bankr. D. Mass. 2011) (even though married couple had been separated for ten years and did not intend to reconcile, wife remained a family member, covered by husband’ homestead declaration); In re Nelson, 2010 WL 3911387 (Bankr. E.D.N.C. Oct. 1, 2010) (continued occupancy by dependent wife sufficient to preserve exemption of debtor husband who leaves marital home); In re Thompson, 2008 WL 1766592 (Bankr. D. Mass. Apr. 14, 2008) (occupancy by adult daughter of ex-husband who had filed homestead declaration was sufficient to maintain Massachusetts exemption); In re Holt, 357 B.R. 917 (Bankr. M.D. Ga. 2006) (debtors could claim homestead exemption in manufactured home occupied by twenty-two-year-old daughter and minor grandson, as daughter was dependent); Garcia v. Andonie, 101 So. 3d 339 (Fla. 2012) (Florida’s constitutional homestead protects property maintained as a permanent residence for owner’s dependents; state tax statute allowing exemption only if owner personally resided on the premises is unconstitutional); Beltram v. Kalb, 63 So. 3d 783 (Fla. Dist. Ct. App. 2011) (Florida homestead exemption continues in former marital home now occupied by debtor’s ex-wife and couple’s daughter); Grisolia v. Pfeffer, 77 So. 3d 732 (Fla. Dist. Ct. App. 2011) (homestead protected widow and son who resided in home). See also In re Maresca, 2018 WL 3203380 (Bankr. D. Conn. June 28, 2018) (occupancy by dependent child is sufficient under federal bankruptcy exemption, even if debtor lives elsewhere; need not be child’s primary residence); In re Andris, 471 B.R. 761 (Bankr. D. Mass. 2012) (allowing estranged husband to claim homestead in home occupied by his wife and daughter; construing former Massachusetts statute as to effect of wife’s filing of homestead declaration subsequent to husband’s filing); Marincasiu v. Drilling, 441 S.W.3d 551 (Tex. App. 2014) (homestead continues so long as one spouse resides on property); Fairfield Fin. Grp., Inc. v. Synnott, 300 S.W.3d 316 (Tex. App. 2009) (homestead protection not lost even if husband moved out, when property continued to be wife’s homestead). But see In re Antonie, 447 B.R. 610 (D. Idaho 2011) (debtor who lived elsewhere could not assert her mother’s homestead exemption to protect jointly-owned home where mother lived); In re Clark, 2012 WL 3597410 (Bankr. D. Md. Aug. 20, 2012) (debtor cannot claim California homestead for property owned in joint tenancy with former wife and occupied by former wife and children), aff’d sub nom. Clark v. Guttman, 2013 WL 812017 (D. Md. Mar. 4, 2013); In re Ramey, 2011 WL 1044584 (Bankr. D.N.M. Mar. 17, 2011) (contiguous parcel with house rented to relatives not homestead; occupancy not shown); Phillips v. Phillips, 2004 WL 503905 (Conn. Super. Ct. Feb. 25, 2004) (must be actually occupied by debtor as principal residence; not shown when debtor owned and paid bills for house occupied by relatives but ate and slept in another house he shared with wife and used that address on driver’s license); In re Nilsson, 315 P.3d 966 (Nev. 2013) (denying exemption for home occupied by ex-wife and minor children; Nevada homestead requires occupancy by debtor). But cf. In re Fowler, 2016 WL 1444195 (Bankr. M.D. Fla. Apr. 12, 2016) (non-disabled adult daughter, who occupied second house on debtor’s property, was not family because debtor was not legally required to support her; denying exemption to house occupied by daughter); In re Crawford, 511 B.R. 395 (Bankr. W.D.N.C. 2014) (must show dependency; great uncle who deeded home to debtor but continued to occupy it was not dependent; debtor assisted him with rides, chores, and occasional financial assistance but did not support him financially).

  • 78 See, e.g., In re Fodor, 339 B.R. 519 (Bankr. M.D. Fla. 2006) (alien who did not obtain permanent resident status until after filing bankruptcy petition not entitled to exemption); In re Walter, 230 B.R. 200 (Bankr. S.D. Fla. 1999) (Canadian citizens who did not have permanent visas could not claim Florida homestead, because they could not intend to permanently reside there). But cf. In re Mendoza, 597 B.R. 686 (Bankr. S.D. Fla. 2019) (allowing federal personal property exemptions to immigrants with a pending application for political asylum; distinguishing cases in which debtors were present illegally or in some temporary status); De la Mora v. Andonie, 101 So. 3d 339 (Fla. 2012) (resident aliens, not qualified to become citizens, could not intend to permanently reside, but occupation of home by their American-born children sufficient to qualify it for homestead tax exemption); Grisolia v. Pfeffer, 77 So. 3d 732 (Fla. Dist. Ct. App. 2011) (intent to reside permanently shown; debtor’s American citizen son resided on property; also deceased debtor and surviving wife had both applied for permanent residency).

  • 79 In re Gamboa, 578 B.R. 661 (Bankr. S.D. Fla. 2017) (living in trailer on land zoned agricultural), aff’d, 2018 WL 934006 (S.D. Fla. Sept. 27, 2018), aff’d, 778 Fed. Appx. 829 (11th Cir. 2019); In re Voliva, 2011 WL 6301232 (Bankr. E.D.N.C. Dec. 16, 2011) (allowing exemption even though manufactured home in which debtors were now living was placed on the property in violation of building code); In re Turner, 2005 WL 1397150 (Bankr. W.D. Mo. June 1, 2005) (zoning violation not a bar to homestead claim in commercial storage facility, which debtor owned and occupied as his principal residence). See also In re Pich, 253 B.R. 562 (Bankr. D. Idaho 2000) (debtor living in office at site of failed business could have claimed homestead, even though his occupancy violated zoning ordinance, but was estopped by having applied for light industrial zoning).

  • 80 Mendez-Garcia v. Rushmore Loan Mgmt. Servs., 2018 WL 4677669 (D. P.R. Sept. 28, 2018) (title not properly recorded).

  • 81 In re Prosser, 2013 WL 594312 (Bankr. D. V.I. Feb. 14, 2013) (debtors’ occupation of guest house was sufficient to exempt entire parcel, including unfinished mansion).

  • 82 In re Shove, 585 B.R. 250 (Bankr. D. Mass. 2018) (allowing homestead exemption for duplex); In re Nazario, 533 B.R. 1 (Bankr. D. P.R. 2015) (Puerto Rico exemption for property used “exclusively as a family residence” protects two-unit building, one unit occupied by debtor, the other rented month-to-month; holding that “exclusively” means only that a person can have only one homestead); In re Rupp, 415 B.R. 72 (Bankr. W.D.N.Y. 2008) (debtor who lived in one half of duplex and rented other half to tenants may exempt the entire property; noting that for many Buffalo residents, buying a duplex and renting one half is “the only way to attain homeownership”); In re Majewski, 362 B.R. 67 (Bankr. D. Conn. 2007) (Connecticut defines homestead as “owner-occupied real property . . . used as a primary residence,” but entire property need not be so used; debtor may exempt three-unit building when he lives in one unit and rents out the other two); In re McBratney, 2007 WL 2684072 (Bankr. D. Kan. Sept. 7, 2007) (use of part of tract to provide income for family does not eliminate homestead; debtor who depended on tenants’ rent to pay mortgage could exempt whole owner-occupied four-unit building); In re McCambry, 327 B.R. 469 (Bankr. D. Kan. 2005) (homeowners entitled to exempt entire duplex even though they rented out one unit); In re Shell, 295 B.R. 129 (Bankr. D. Alaska 2003) (allowing debtor to exempt entire owner-occupied six-unit building; rental income also exempt under Alaska Stat. § 9.38.030(b)); In re Carey, 282 B.R. 118 (Bankr. D. Mass. 2002) (allowing debtors to exempt entire owner-occupied triple-decker; noting that rent used to pay mortgage is “as necessary as the furnace”); In re Trigonis, 224 B.R. 152 (Bankr. D. Nev. 1998) (allowing Nevada homestead exemption on entire four-unit building, when owner resided in one unit and rented out the other three); In re Ruggles, 210 B.R. 57 (Bankr. D. Vt. 1997) (debtor could exempt duplex as homestead when she resided in one half and rented the other); Sifuentes v. Arriola, 2009 WL 1099253 (Tex. App. Apr. 22, 2009) (allowing homestead exemption of four-unit building; debtors lived in one unit and rented the others). See also In re Johns, 504 B.R. 657 (Bankr. D. Idaho 2014) (presence of rental house did not eliminate exemption for parcels used for horses and livestock, and garden), aff’d, 2014 WL 6892744 (9th Cir. Dec. 8, 2014); In re Oulette, 2009 WL 1936896 (Bankr. M.D. Fla. Mar. 26, 2009) (limitation of homestead to residence of owner does not apply to rural homestead; debtors who resided in one manufactured home and rented other to unrelated third parties could claim homestead in land and both homes); In re Springman, 328 B.R. 251 (Bankr. D.D.C. 2005) (renting out two bedrooms of single-family home and “incidental” business use does not destroy homestead). Cf. In re Myers, 323 B.R. 11 (Bankr. D.N.H. 2005) (debtor entitled to homestead protection in both units of duplex when second unit occupied by dependent elderly mother and not used for production of income). But see In re Navarro, 504 B.R. 316 (Bankr. D. P.R. 2014) (disallowing exemption for part of house—here, one room rented to tenant); In re MacLeod, 295 B.R. 1 (Bankr. D. Me. 2003) (manufactured-home park owned by debtor not homestead when nineteen lots were rented out and twentieth occupied by owner); In re Tsoupas, 250 B.R. 466 (Bankr. D.N.H. 2000) (debtors who resided in four-unit apartment building, in which husband owned a half interest, could claim homestead only in the part they occupied, as measured by percentage of floor space); In re Pietrunti, 207 B.R. 18 (Bankr. M.D. Fla. 1997) (where debtors’ property consisted of two parcels with four homes—three of which they rented out—Florida homestead exemption protected only the home they occupied); Menard v. Univ. Radiation Oncology Assocs., L.L.P., 976 So. 2d 69 (Fla. Dist. Ct. App. 2008) (if part of property—here, a triplex, is leased to others—exemption protects only the part occupied by debtor; if partition impossible, property must be sold, and debtor paid a pro rata share of proceeds).

  • 83 See, e.g., Menotte v. Baez, 2018 WL 2276068 (S.D. Fla. May 18, 2018) (rural homestead extends to property used for non-homestead purposes; here, a free-standing apartment rented to non-family tenants); In re Catton, 542 B.R. 33 (D. Mass. 2015) (debtor resided on second floor, used first floor as insurance office; property exempt if commercial use does not predominate over residential); In re Callejo, 2015 WL 779002 (S.D. Fla. Feb. 23, 2015) (allowing exemption of single family home in which debtors tutored students; when students not present, space was used as living areas); In re Shove, 585 B.R. 250 (Bankr. D. Mass. 2018) (if property used for both residence and business meets the definition of principal dwelling, debtor need not show that homestead use predominates); In re Carpenter, 559 B.R. 551 (Bankr. D.R.I. 2016) (allowing homestead in property where debtor resided and did auto repair work); In re Rommer, 549 B.R. 72 (Bankr. D. Vt. 2016) (Vermont homestead covers outbuildings and lands; garage and greenhouse, owned by debtor’s company and used to grow crops on which debtor depended for a living were “necessary and convenient” to use of land as homestead); In re Nielsen, 526 B.R. 351 (Bankr. D. Haw. 2015) (allowing federal exemption for lot with debtor’s residence and separate building used as a bed and breakfast; residential use need not be exclusive); In re Graff, 457 B.R. 429 (Bankr. W.D. Pa. 2011) (need not show that every acre of large rural lot used for homestead purposes; allowing exemption of manufactured home, nineteen-acre lot, and oil and gas rights); In re Giles, 443 B.R. 524 (Bankr. W.D. Ark. 2011) (entire property is homestead even though it includes small family-run business as well as debtors’ home); In re McCarthy, 2011 WL 5833869 (Bankr. N.D.N.Y. Nov. 18, 2011) (allowing “indivisible homestead” in property that could not be lawfully subdivided; property included building in which debtors lived and carried on business, and two-family home rented out to unrelated tenants); In re Carey, 282 B.R. 118 (Bankr. D. Mass. 2002) (Massachusetts homestead exemption covers entire property, including home business, storage space and rental property, subject only to dollar limitation); In re Lowery, 262 B.R. 875 (Bankr. M.D. Fla. 2001) (use of part of qualified homestead for commercial purposes does not destroy homestead status; debtors could exempt home and citrus farm). See also In re Nork, 2012 WL 6027765 (Bankr. D. Or. Dec. 4, 2012) (exempting proceeds of lease of corner of rural homestead for cell phone tower; debtor was using proceeds to pay her mortgage). But see In re Radtke, 344 B.R. 690 (Bankr. S.D. Fla. 2006) (when debtor’s home and rental recreational vehicle sites were both located on same parcel, and parcel could not be divided, it had to be sold and proceeds allocated between homestead and bankruptcy estate); In re Carpenter, 278 B.R. 102 (Bankr. N.D. Miss. 2001) (non-contiguous parcel used mainly for commercial purposes not homestead, even though debtor sometimes kept a few cows there); In re Bell, 252 B.R. 562 (Bankr. M.D. Fla. 2000) (homestead exemption did not protect commercial building on same parcel of land as residence; if land could not be subdivided, it must be sold and the proceeds apportioned); In re Sears, 246 B.R. 881 (Bankr. S.D. Iowa 2000) (debtors may claim as homestead their house and one garage of small value, but not buildings used for salvage and repair business), aff’d, 246 B.R. 341 (B.A.P. 8th Cir. 2000).

  • 84 Tex. Const. art. XVI, § 51; Tex. Prop. Code Ann. § 41.002 (West). See In re Jay, 432 F.3d 323 (5th Cir. 2005) (Tex. law) (property where debtors worked but did not reside was not homestead). Cf. In re Perry, 481 B.R. 862 (Bankr. N.D. Tex. 2012) (adjacent lots with residence and workshop; business homestead in workshop lost when debtor abandoned residence).

    Prior to a statutory amendment in 2000, the Texas “business homestead” was applicable to property used for an occupation to support the household without regard to residential use. See, e.g., In re John Taylor Co., 935 F.2d 75 (5th Cir. 1991) (property used for manufacturing and selling of bedding supplies exempt).

  • 85 In re Pool, 598 B.R. 584 (Bankr. W.D. Tex. 2019) (allowing homestead exemption to extend to nearby non-contiguous parcel containing rural debtor’s auto shop—which he also used to repair household items—under statute that explicitly allows rural homestead to encompass non-contiguous parcels but is silent about business purposes), aff’d, 2020 WL 903006 (W.D. Tex. Feb. 25, 2020).

  • 86 In re Furlong, 2017 WL 3981108 (Bankr. D.N.H. Sept. 8, 2017) (homestead, once established, is not lost by temporary absence; debtor spent winters in Florida and travelled between Maine and New Hampshire in summer, but had not established new homestead); In re Belding, 2010 WL 5376295 (Bankr. D. Vt. Dec. 23, 2010) (debtors who resided more than half the year in Florida apartment allowed to claim homestead in family home in Vermont; debtors paid resident income taxes in Vermont, owned no real property in Florida, and had not registered to vote there). But cf. In re Kaplan, 468 B.R. 246 (Bankr. W.D. Ky. 2012) (staying overnight occasionally on property that lacked refrigerator or cooking facilities insufficient for federal bankruptcy exemption that refers to state definition of residence); In re Brown, 299 B.R. 425 (Bankr. N.D. Tex. 2003) (vacation timeshare that debtors who resided on military base used for two weeks per year is not homestead under Florida law so is not exempt under federal bankruptcy exemptions); In re Marsico, 278 B.R. 1 (Bankr. D.N.H. 2002) (couple who lived and operated seasonal businesses in New Hampshire, but lived in New Jersey during off-season, not entitled to New Hampshire homestead exemption; “vacation or seasonal” occupancy not sufficient).

  • 87 In re Aubiel, 534 B.R. 300 (B.A.P. 6th Cir. 2015) (occupancy not shown because debtor’s divorce paperwork alleged six months’ residency in county distant from property in which he sought to claim homestead); Smith v. Winnsboro Equip., Inc., 2011 WL 1655577 (S.D. Tex. May 1, 2011) (debtor’s testimony that he lived in Louisiana “only for business purposes” was outweighed by evidence that he bought a house, lived there with his family, voted, maintained bank accounts and was active in community affairs in Louisiana); In re Harwell, 2008 WL 410590 (D. Colo. Feb. 13, 2008) (ranch was “hobby and tax shelter,” not homestead, when debtor changed motor vehicle and voting registrations to ranch address but continued to pay bills for family home—occupied by wife and children, where he had resided up to time of bankruptcy—and to claim tax deduction for family home’s mortgage); In re Edwards, 2015 WL 179073 (Bankr. N.D. Tex. Jan. 13, 2015) (use of girlfriend’s address for mailing and driver’s license not fatal to claim of homestead in property owned by debtor; debtor was guest in girlfriend’s home, kept much personal property at property for which he claimed homestead, had made improvements there, and slept there when he was not at girlfriend’s); In re Ashton, 2013 WL 211243 (Bankr. D. Idaho Jan. 18, 2013) (denying homestead exemption for oil field worker’s fifth-wheel trailer, which he would site in an RV park near each jobsite and in which he spent about two-thirds of his time; concluding that rented apartment in which his wife and children resided and which he used for mail, voting, licenses, among other things, was principal residence); In re Middleton, 462 B.R. 832 (Bankr. N.D. Fla. 2011) (denying homestead exemption when, shortly before defaulting on large debt, debtor bought Florida property and changed driver’s license and voting registration, as “financial and social affairs” linked debtor to Georgia; debtor registered his company car, maintained bank accounts, received healthcare, and attended church in Georgia), aff’d sub nom. Middleton v. Phillips, 2012 WL 764196 (N.D. Fla. Feb. 29, 2012); In re Capps, 438 B.R. 668 (Bankr. D. Idaho 2010) (debtor who lived, worked, registered to vote, registered her car, and paid taxes in Idaho could not exempt Colorado property, occupied by her mother, to which debtor hoped to retire); In re Tinsley, 2010 WL 4823208 (Bankr. N.D. Tex. Nov. 16, 2010) (when there is ambiguity as to debtor’s residence, debtor may choose which parcel to exempt; allowing exemption when family home was occupied by debtor’s son and grandchildren, debtor’s business was located there, and debtor listed address on his tax filings, even though debtor slept and received mail on property owned by wife); In re Lloyd, 394 B.R. 605 (Bankr. S.D. Fla. 2008) (voter and motor vehicle registrations probative but not determinative; allowing exemption for Florida property of debtor who changed registrations while living in month-to-month rentals in California, but returned to Florida to care for property, and was prevented from living there by hurricane damage); In re Hageman, 388 B.R. 896 (Bankr. C.D. Ill. 2008) (even though debtor spent 10% of time at future wife’s home, crude accommodation added to his business premises was homestead when debtor lived there and used address for voting, driver’s license, and Social Security); In re Dilbeck, 2008 WL 867897 (Bankr. E.D. Tenn. Mar. 28, 2008) (changing voter registrations three days before bankruptcy not sufficient to confer homestead status; debtors lived and worked elsewhere and listed other address on driver’s licenses); In re Meltzer, 2007 WL 543922 (Bankr. S.D. Tex. Feb. 16, 2007) (property was homestead; debtor used address on bankruptcy forms, received homestead tax exemption, and family friend testified that debtor lived there); In re Siehler, 2006 WL 2034385 (Bankr. M.D. Fla. Apr. 27, 2006) (debtor could not claim homestead exemption in parent’s house in which she owned one-third interest; intent to reside there permanently not shown when she had not changed driver’s license and voter registration and admitted that she would return to marital home if she reconciled with husband); In re Wilson, 338 B.R. 315 (Bankr. W.D. Ky. 2006) (no homestead exemption in property not listed by debtors as their address for bankruptcy petition; offices of debtors’ company located on property, and no evidence of permanent or continuous residence); In re Prestwood, 322 B.R. 463 (Bankr. S.D. Fla. 2005) (allowing Florida homestead exemption when debtor maintained extensive ties to California but sufficiently demonstrated intent to live in Florida); In re Whitehead, 278 B.R. 597 (Bankr. M.D. Fla. 2002) (debtor who bought home in Florida and eventually found work there but maintained various ties with former home in Indiana, including a temporary job, bank accounts, and physician, was entitled to Florida homestead exemption because evidence was equally balanced and party who challenged exemption bore burden of proof); Konover Constr. Co. v. Silberstein, 2003 WL 21805576 (Conn. Super. Ct. July 22, 2003) (house was homestead, even though debtor spent about half of her nights at assisted living facility she owned; she had bought house with husband, used address for driver’s license and voter registration, and been served with process there); Stuart v. Ryan, 232 So. 3d 418 (Fla. Dist. Ct. App. 2017) (denying exemption to debtor who had obtained Florida driver’s license and voter registration, but spent only two months of the year in Florida and had reverse mortgage on her D.C. condo); Antonello v. Reilly, 2012 WL 5381908 (Minn. Ct. App. Nov. 5, 2012) (debtors’ testimony that they were living in second home not sufficient to outweigh their use of address of former home on drivers’ license, tax returns and mailing, and their affirmation, when refinancing, that it was principal residence). But see In re Curry, 2009 WL 5198294 (Bankr. D. Kan. Dec. 22, 2009) (homestead exemption in old family home survived, even though debtors voted, worked, and received mail in another city where they lived for two and a half years in rented housing).

  • 88 In re Carter, 550 B.R. 433 (Bankr. W.D. Wis. 2016) (although place where debtor lived during work week was her legal residence, she could occupy—and claim homestead for—recently inherited property where she lived on weekends and planned to live full-time as soon as she found a job in the area); In re Denker-Youngs, 2016 WL 3244692 (Bankr. E.D.N.Y. June 2, 2016) (debtor’s use of apartment address for driver’s license, voting, and bankruptcy papers did not bar claim of homestead in former marital home from which he was excluded by family court order); In re Marsico, 278 B.R. 1 (Bankr. D.N.H. 2002) (debtors established residency for purpose of bankruptcy filing but not for homestead exemption); Union Square Fed. Credit Union v. Clay, 2009 WL 1099434 (Tex. App. Apr. 23, 2009) (loss of homestead tax exemption, because debtors did not reside in house, did not result in loss of homestead exemption; debtors had not established homestead in new house when they neither sold nor rented old house, maintained it. and kept personal property there).

  • 89 In re Demeter, 478 B.R. 281 (Bankr. E.D. Mich. 2012) (federal exemption allows debtor who owns and lives in two residences to choose which to exempt; here, debtors allowed to exempt second home in which they resided for almost half the year; principal residence was “underwater” and debtors were seeking work in area of second home); In re Lawrence, 469 B.R. 140 (Bankr. D. Mass. 2012) (federal law, unlike Massachusetts law, does not require showing that property is principal residence; if debtors own and use two residences, they may choose which to exempt; debtors allowed to claim homestead for Maine condominium when their Massachusetts home was being foreclosed on and they had arranged to move their household goods to Maine).

    Typically courts evaluate whether an occupancy requirement has been met as of the date of the bankruptcy filing or the levy on the home.90 In some states, courts insist on actual physical occupancy and deny the exemption to a home that the debtor is preparing to occupy.91 However, many courts allow a debtor to exempt a recently-acquired home if the debtor has taken concrete steps to move or to prepare it for occupancy.92 A homestead claim may also be possible in land where one plans to make a home, if substantial steps have been taken to prepare the land for occupancy.93 A debtor who has sold a previous home to purchase a new home or land should also explore whether the homestead exemption applies to the proceeds of the sale.94