Texas Practice Series- Part III. Homesteads
A. Protection of the Homestead- The strong Texas homestead protection from the claims of creditors is founded in both the Texas Constitution and statutes and has consistently been the beneficiary of firm judicial support and enforcement.
§ 24.1. Introduction to the family homestead -The homestead is a place of residence for the family, where the independence and security of a home may be enjoyed without risk of its loss to creditors. It is the place where the family lives and does all things necessary to live, including eat, sleep, and work.
§ 13.42. Homestead rights of husbands and wives—Conveyance of marital homestead—Acknowledgments of spouses - Since 1970, only the joinder of spouses is required in a conveyance of the homestead without regard to acknowledgments, and, if it is desired to record the instrument, only a single form of acknowledgment is necessary, there being no longer any privy or separate forms of acknowledgments for married women. Formerly, a married woman's right to contract was hindered by a series of impediments imposed by statute.
Homesteads Summary- This article concerns the general legal principles governing the homestead exemption, including the nature and purpose of homesteads, who may claim the exemption, what property is subject to the exemption, conditions of the exemption, claims against which the exemption is available, limitations on conveyance or encumbrance of property held subject to the exemption, abandonment and renunciation of homestead rights, and remedies and procedures for enforcement of homestead rights.
§ 92. Conveyance of homestead, generally- Under the Texas Constitution, an owner or claimant of the property claimed as homestead may not sell the homestead without the consent of each owner and the spouse of each owner, given in such manner as may be prescribed by law. Additionally, the Family Code provides that whether the homestead is the separate property of either spouse or community property, neither spouse may sell or convey the homestead without the joinder of the other spouse except as provided by statute or by other rules of law.
§ 94. Contract to convey homestead- A properly executed contract to sell homestead property is valid and enforceable. However, a parol agreement to convey the homestead or a portion thereof is void.
Validity and effect of alienation or encumbrance of homestead without joinder or consent of wife - The right or privilege commonly known as a homestead estate does not exist at common law, and is purely a statutory or constitutional creation, its nature and extent depending on the law creating it. See 13 R. C. L. 543. It follows that, in the absence of any statutory or constitutional restriction on the right of a husband holding the title to homestead property to alienate or encumber it, he may do so without any necessity for his wife joining in or consenting to the act.Under constitutional or statutory restrictions on the right of a married man to alienate homestead property except with the joinder or consent of his wife, the general rule is that a conveyance of such property without the joinder or consent of the wife is invalid, and of no effect for any purpose.
45 A.L.R. 395 (Originally published in 1926)
Recovery of damages for breach of contract to convey homestead where only one spouse signed contract- This annotation collects and discusses the cases determining whether damages are recoverable by a vendee on account of the breach of a contract of sale of real estate which was in writing and signed by one spouse but not the other, where the subject property included a homestead and the applicable homestead statute required signatures of both spouses in order to effect a valid transfer.
5 A.L.R.4th 1310 (Originally published in 1981)
Lien of judgment on excess value of homestead-The purpose of this annotation is to collect and discuss the state and federal cases in which the courts have considered whether a judgment lien attaches to the excess value of real property over the amount of a statutory or constitutional exemption for a homestead.
41 A.L.R.4th 292 (Originally published in 1985)
Homestead Claimant's Proof That Property Qualifies for Homestead Exemption From Creditor Claims*
Whether certain real property qualifies as the "homestead" of the owner or possessor thereof for purposes of asserting a homestead exemption from creditor claims. This question of fact typically arises in an action or proceeding in which a creditor seeks to impose or enforce a lien against a debtor's real property, and the debtor or other party with an interest therein defends the suit on grounds that all or a portion of the property qualifies for a homestead exemption from levy and forced sale under applicable constitutional or statutory provisions. In addition, the homestead claimant may bring an affirmative action for a declaratory judgment that the subject property qualifies as exempt homestead property, perhaps in connection with bankruptcy proceedings, and, if necessary under the circumstances, may seek injunctive relief to prevent a levy and forced sale of the homestead. This article explains the relevant law and evaluates the proof of facts necessary to establish that property qualifies for the homestead exemption from creditor claims.
§ 1. Generally; definitions and distinctions- A homestead is the dwelling house constituting the family residence, together with the land on which it is situated and the appurtenances connected therewith.
§ 2. Origin and purpose of homestead right- Homestead rights have their origin in constitutional and statutory provisions and not in the common law, and such rights have been created to shelter the family and to provide it with a refuge from the stresses and strains of financial misfortune.
§ 4. Nature of interest created or protected- While a homestead right may in some jurisdictions constitute an estate in land that is analogous to a life tenancy, in many jurisdictions the interest is not an estate at all but merely an exemption.
§ 5. Constitutional and statutory provisions- The homestead exemption from sale on execution and from process of court can only be extended or limited by the statutes or constitutional provision that created it; where state constitutional provisions creating the exemptions are valid, the courts have no power to restrict, defeat, or in any way impair the homestead rights created thereby.
§ 6. Constitutional and statutory provisions—Construction of homestead laws- Homestead laws are subject to the established rules of construction governing statutes in general, but the homestead laws must be liberally construed in favor of the debtor and his or her family.
§ 8. Existence of more than one homestead; separate homesteads- A family or claimant of homestead rights cannot have two homesteads.
Homestead Protections in Texas with Comments on Asset Protection and Estate Planning. By David J. Willis J.D., LL.M. -This article outlines unique protections available to an individual’s residence and personal property by what are commonly referred to as “Texas homestead laws,” found in Texas Constitution Article XVI, Section 50 and Property Code Chapters 41 and 42.
The Texas Homestead Exemption The Texas homestead exemption allows you to protect the entire value of your home in bankruptcy. By Mher Asatryan, Contributing Author -If you file for bankruptcy in Texas, you can exempt the entire value of your home -- this is called the homestead exemption. However, there are some acreage limits to the Texas homestead exemption.
The Business Homestead in Texas. By John Cooper Blankenship- This article discusses the business homestead in Texas and its origin. It provides the reader with definitions, examples of what a business homestead is, and the requirements of the statute.
Homestead Protection: For Whom and How much? By Judon Fambrough - This article discusses homestead and two main issues. First, can a single person be the “head of a family” under homestead laws? Second, when is an area considered urban and when is it considered rural?
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