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15.2.2.4 Non-Traditional Homesteads, Cooperatives, and Manufactured Homes

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  4. 15.2 Homestead Exemptions
  5. 15.2.2 What Homesteads Are Protected?
  6. 15.2.2.4 Non-Traditional Homesteads, Cooperatives, and Manufactured Homes

15.2.2.4 Non-Traditional Homesteads, Cooperatives, and Manufactured Homes

Homestead exemptions should be construed to extend beyond the traditional single-family home owned in fee simple because these non-traditional dwellings serve the same purpose as traditional homesteads.32 A number of state homestead statutes make specific provision for mobile or manufactured homes, and other courts construe their exemptions liberally to include these dwellings.33 When the debtor owns the land on which a manufactured home sits, the land should be considered part of the homestead even though the home is, at least in theory, more easily removed than a site-built home.34

A resident of a cooperative should similarly be protected, even though the resident actually owns only a share in the cooperative association and then leases the unit.35 New York’s homestead exemption explicitly protects shares in a cooperative.36

Some courts allow homestead exemptions in non-traditional homesteads, such as recreational vehicles,37watercraft,38 and office space or other business premises.39 Even a truck may be a homestead if it has living facilities and is used as a residence.40

One court has articulated these criteria for a non-traditional homestead: (1) the debtor’s intent to make the non-traditional abode their homestead; (2) whether the debtor has no other residence; (3) whether the evidence establishes a continuous habitation; (4) whether the debtor maintains at least a possessory right associated with the land establishing a physical presence; (5) whether the non-traditional abode has been physically maintained to allow long-term habitation versus mobility; and (6) whether the physical configuration of the abode permits habitation (the physical characteristics of the home are otherwise immaterial).41

Footnotes

  • 32 In re Carlson, 303 B.R. 478 (B.A.P. 10th Cir. 2004) (Utah law) (liberally construing homestead exemption to include manufactured home on land not owned by debtor); In re Bernhardt, 2008 WL 2484582 (Bankr. D. Neb. June 17, 2008) (leased motor home placed on debtors’ farm and connected to water and propane was a “dwelling”; citing old case holding that anything down to “a tent of cloth” can be a homestead); In re Yettaw, 316 B.R. 560 (Bankr. M.D. Fla. 2004) (debtor could claim homestead in inoperable, but possibly repairable, recreational vehicle in space rented month-to-month in RV park). See also In re Hamilton, 461 B.R. 878 (Bankr. D.N.M. 2011) (finding that homestead use predominated over commercial; debtor lived in warehouse and used it only incidentally for business—here, seasonal sale of fireworks). See generally W. Vukowich, Debtors Exemption Rights, 62 Geo. L.J. 779, 798 (1974).

  • 33 In re Carlson, 303 B.R. 478 (B.A.P. 10th Cir. 2004) (Utah law) (liberally construing homestead exemption to include manufactured home on land not owned by debtor); In re Thornton, 269 B.R. 682 (W.D. Mo. 2001) (manufactured home placed on foundation and connected to well and septic system was real property entitled to homestead exemption instead of smaller statutory exemption for manufactured home); In re Gray, 378 B.R. 728 (Bankr. D. Mass. 2007) (Massachusetts homestead statute, which covers owners who “rightfully possess the premises . . . by lease or otherwise,” exempts manufactured home owned by debtors and resting on leased land); In re MacLeod, 295 B.R. 1 (Bankr. D. Me. 2003) (manufactured home is exempt personal property under Maine law, which exempts real or personal property used as a residence); Gold v. Schwartz, 774 So. 2d 879 (Fla. Dist. Ct. App. 2001) (constitutional homestead exemption, which protects “land and improvements thereon,” covered manufactured home that was permanently affixed to land); Capitol Aggregates, Inc. v. Walker, 448 S.W.2d 830 (Tex. App. 1969) (debtor whose manufactured home was on land rented month-to-month entitled to homestead exemption). See also In re Bernhardt, 2008 WL 2484582 (Bankr. D. Neb. June 17, 2008) (leased motor home placed on debtors’ farm and connected to water and propane was a “dwelling”). Cf. In re Heckman, 395 B.R. 737 (Bankr. N.D. Fla. 2008) (statutory exemption for manufactured or modular home on land not owned by debtor is separate from, not a clarification of, constitutional homestead; allowing in-lieu-of-homestead wildcard to debtor who exempted modular home on land he did not own); In re Rogers, 225 B.R. 755 (Bankr. D. Idaho 1998) (a manufactured home is not a “household good” for purposes of avoiding a non-possessory, non-purchase money security interest, when Idaho law allows claim of homestead in manufactured home). But see In re Cobbins, 227 F.3d 302 (5th Cir. 2000) (manufactured home on land not owned by debtor was not exempt under Mississippi law as “land and buildings,” nor as personal property, when statute enumerated types of property exempted and manufactured homes were not listed); In re Kelly, 334 B.R. 772 (Bankr. D. Mass. 2005) (debtor who was neither elderly nor disabled could not claim homestead in manufactured home when term “manufactured homes” had been added to elderly and disabled exemption but not to general homestead provision).

  • 34 In re Cox, 2014 WL 1779819 (Bankr. S.D. Tex. 2014) (travel trailer, which was anchored to the ground and connected to utilities, was an improvement sufficient to make land homestead, when debtor actually lived in the trailer); In re Graff, 457 B.R. 429 (Bankr. W.D. Pa. 2011) (where debtors live in a manufactured home that is attached to land they own, both the land and the home are exempt; need not show that every acre of large rural lot is used for homestead purposes). See also In re Greene, 346 B.R. 835 (Bankr. D. Nev. 2006) (if debtor actually owns and occupies land, “mode of occupation” is irrelevant under Nevada homestead exemption; here, debtor lived on the land in a travel trailer and then a tent 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). But cf. In re White, 287 B.R. 232 (Bankr. E.D. Mo. 2002) (debtor who lives in manufactured home on land owned by another may claim only personal property exemption in home).

  • 35 In re Dougan, 484 B.R. 529 (Bankr. D. Mass. 2013) (applying principle of liberal construction to exempt a co-op; new Massachusetts statute does not exempt leases, or mention co-ops in definition of homeowner, but co-ops are included in definition of a home); S. Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. Dist. Ct. App. 2002).

  • 36 N.Y. C.P.L.R. 5206 (McKinney). See Travis v. 29–33 Convent Ave. HDFC, 859 N.Y.S.2d 336 (N.Y. Sup. Ct. 2008) (landlord may not enforce judgment by selling shareholder-tenant’s shares, which would have the effect of evicting shareholder-tenant).

  • 37 In re Cox, 2014 WL 1779819 (Bankr. S.D. Tex. 2014) (travel trailer, anchored to ground and connected to utilities); In re Fisher, 2012 WL 240652 (Bankr. D. Kan. Jan. 22, 2012) (allowing exemption when debtor was residing in camper, despite lack of basic sanitation); In re Bernhardt, 2008 WL 2484582 (Bankr. D. Neb. June 17, 2008) (leased motor home connected to water and propane was a “dwelling”; anything down to “a tent of cloth” can be a homestead); In re Greene, 346 B.R. 835 (Bankr. D. Nev. 2006) (allowing homestead exemption for land where debtor lived in travel trailer when he 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); In re Yettaw, 316 B.R. 560 (Bankr. M.D. Fla. 2004) (debtor, who had sold home and purchased inoperable recreational vehicle, set up in month-to-month rental space in park, could claim homestead); In re Irwin, 293 B.R. 28 (Bankr. D. Ariz. 2003) (“mobile home” in Arizona exemption includes self-propelled motor home, when debtors were Arizona residents and occupied it as their only residence); In re Bubnak, 176 B.R. 601 (Bankr. M.D. Fla. 1994) (motor home in park, with permanent utility hookups, had sufficient permanency to qualify as Florida homestead). Cf. In re Ashton, 2013 WL 211243 (Bankr. D. Idaho Jan. 18, 2013) (fifth-wheel trailer may be homestead, but must show it is principal residence; not shown when debtor oil-driller resided in trailer near job sites but used address of apartment where wife and family resided for mail, voting, and licensing, among other things); In re Scott, 233 B.R. 32 (Bankr. N.D.N.Y. 1998) (New York homestead may be established in land with a motor home on it if debtor can show actual physical presence and intent to reside there permanently, but not shown here). But see In re Galvin, 583 B.R. 262 (Bankr. D. Colo. 2018) (denying exemption to RV; Colorado definition of mobile home specifies “without motive power”); In re Andiorio, 237 B.R. 851 (Bankr. M.D. Fla. 1999) (no homestead exemption for recreational vehicle that stood on land rented month-to-month in park where hookups were easily removable, RV had tires, and it was maintained and insured for highway travel; physical permanency essential for Florida homestead); In re Kirby, 223 B.R. 825 (Bankr. M.D. Fla. 1998) (Florida homestead exemption did not protect motor home used as principal residence when there was no “permanency”; motor coach was not attached to land, and debtors neither owned nor leased land in Florida). But cf. In re Hurd, 441 B.R. 116 (B.A.P. 8th Cir. 2010) (Mo. law) (denying exemption to camping trailer, which was too small for size requirement of manufactured-home definition).

  • 38 In re Housh, 535 B.R. 671 (Bankr. E.D. La. 2015) (allowing Louisiana homestead, which protects “a residence occupied by owner” in sailboat, kept in leased slip and containing kitchen, lavatory, living, and sleeping areas); In re Mead, 255 B.R. 80 (Bankr. S.D. Fla. 2000) (allowing debtors to claim homestead in motorboat, which was their only home, when boat was tied up in leased space and equipped with living space and debtors used marina address for driver’s license and voter registration); In re Ross, 210 B.R. 320 (Bankr. N.D. Ill. 1997) (allowing homestead exemption in charter fishing boat on which owner lived during fishing season); Miami Cty. Day Sch. v. Bakst, 641 So. 2d 467 (Fla. Dist. Ct. App. 1994) (houseboat moored in rented marina slip was exempt; analogous to manufactured home in park). But see In re Hacker, 260 B.R. 542 (Bankr. M.D. Fla. 2000) (motorboat can never be homestead because it is self-propelled and designed for transportation, not residence); In re Brissont, 250 B.R. 413 (Bankr. M.D. Fla. 2000) (cabin cruiser cannot qualify for homestead exemption); In re Walter, 230 B.R. 200 (Bankr. S.D. Fla. 1999) (no homestead exemption for motor boat, although it was debtors’ primary residence, when it was a recreational vehicle capable of travel and not designed as a permanent residence); Norris v. Thomas, 215 S.W.3d 851 (Tex. 2007) (houseboat can never be Texas homestead; law requires land or a structure that can be affixed to land). But cf. In re Aubiel, 534 B.R. 300 (B.A.P. 6th Cir. 2015) (Ohio law) (denying homestead because debtor failed to show that boat was primary residence).

  • 39 In re Villareal, 401 B.R. 823 (Bankr. S.D. Tex. 2009) (actual homestead use, even if secret, is sufficient to make property homestead; here, family ashamed of having lost home to foreclosure was living behind a curtain in their place of business), later decision, 402 Fed. Appx. 28 (5th Cir. 2010) (certifying question to Texas Supreme Court: are debtors equitably estopped from claiming homestead when homestead use was secret and debtors stated, when they obtained loan, that property was not homestead); In re Hamilton, 461 B.R. 878 (Bankr. D.N.M. 2011) (metal warehouse that lacked heat and running water was homestead when debtor had bedroom set, microwave, and adjoining trailer with bathroom and actually lived there; any structure, any part of which is used for living quarters, is a dwelling house; issues here were actual occupancy and balance of residential versus commercial use); In re Wilson, 393 B.R. 778 (Bankr. S.D. Fla. 2008) (nightclub owner’s apartment in club building, where he actually resided, could be homestead, even though it lacked kitchen and bathroom; club kitchen and bathroom, although used by owner, not part of homestead because not used exclusively for living space); In re Hageman, 388 B.R. 896 (Bankr. C.D. Ill. 2008) (living space in debtor’s business premises was homestead when debtor lived there and used address for voting, driver’s license, and Social Security, even though it lacked bathroom or kitchen). 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 residential use forbidden, but was estopped by having applied for light industrial zoning). But see Mitchell v. Stringfellow, 2010 WL 4850736 (E.D. Tex. Nov. 23, 2010) (debtor’s move, part of a pattern of evading creditors, into trailer on site of gravel pit he leased to his corporation did not make this industrialized land a homestead).

  • 40 In re Tullar, 434 B.R. 69 (Bankr. W.D.N.Y. 2010) (long-haul trucker living in his truck, which included bed, lavatory, heat, refrigeration, and minimal cooking facilities; when he used truck two-thirds of the time as residence and one-third to earn a living, homestead exemption allowed as to two-thirds of truck’s value; tools-of-trade exemption applied to remaining third); In re Laube, 152 B.R. 260 (Bankr. W.D. Wis. 1993) (tractor trailer cab—in which trucker slept, received visitors, completed trucking forms, and ate some meals—was a “dwelling” within the meaning of Wisconsin homestead exemption, even though it did not have a bathroom or cooking facilities). But see In re Romero, 533 B.R. 807 (Bankr. D. Colo. 2015) (denying exemption for semi-trailer that was debtor’s only residence; Colorado exemption must be “associated with” land), aff’d, 579 B.R. 551 (D. Colo. 2016).

  • 41 In re Yettaw, 316 B.R. 560, 562–563 (Bankr. M.D. Fla. 2004).