While many California homeowners have heard of the homestead exemption, few understand how this powerful tool can be used to ensure that homeowners stay in their homes, despite creditors, judgments, and even bankruptcies. Below, the experienced California bankruptcy attorneys at Talkov Law provide the tips and tricks to maximize your California homestead exemption.
What is a Homestead Exemption?
A homestead exemption is a regulation that shields a homeowner’s principal residence from creditors in the case of bankruptcy, judgment creditor, or death of a spouse. The California Constitution provides that “[t]he Legislature shall protect, by law, from forced sale a certain portion of the homestead and other property of all heads of families.” Cal. Const. Art. XX, § 1.5.
What Does a Homestead Exemption Do?
As courts have explained: “’The object of all homestead legislation is to provide a place for the family and its surviving members, where they may reside and enjoy the comforts of a home, freed from any anxiety that it may be taken from them against their will, either by reason of their own necessity or improvidence, or from the importunity of their creditors.” Thorsby v. Babcock (1950) 36 Cal. 2d 202, 204. “[T]he homestead law is not designed to protect creditors, but protects the home against creditors . . . thereby preserving the home for the family.” Amin v. Khazindar (2003) 112 Cal.App.4th 582, 588.
It is important to remember that the homestead exemption protects homes from involuntary creditors like judgment creditors. However, the homestead exemption does not protect homes from voluntary creditors like mortgage, deeds of trust, or taxes.
What California’s New Homestead Exemption in AB 1885 Means for Homeowners
On September 18, 2020, California Governor Gavin Newsom signed AB 1885 which has updated CCP § 704.730. The bill, which became effective January 1, 2021, protects debtors who own homes by increasing the California homestead amount to an amount that would keep most homeowners safe from creditors. AB 1885 provides that:
(a) The amount of the homestead exemption is the greater of the following:(1) The countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption, not to exceed six hundred thousand dollars ($600,000).(2) Three hundred thousand dollars ($300,000).(b) The amounts specified in this section shall adjust annually for inflation, beginning on January 1, 2022, based on the change in the annual California Consumer Price Index for All Urban Consumers for the prior fiscal year, published by the Department of Industrial Relations.
The updated homestead exemption encourages acquisition of equity in California homeowners’ houses. While the homestead exemption encourages homeowners to build equity in their homes, the laws have provided no such generous protections for other assets like expensive cars, boats, or bank accounts, which are generally available for creditors in state court and bankruptcy proceedings.
California Code of Civil Procedure Section 704.730
Effective January 1, 2021, California Code of Civil Procedure Section 704.730 now reads:
(a) The amount of the homestead exemption is the greater of the following:
(1) The countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption, not to exceed six hundred thousand dollars ($600,000).
(2) Three hundred thousand dollars ($300,000).
(b) The amounts specified in this section shall adjust annually for inflation, beginning on January 1, 2022, based on the change in the annual California Consumer Price Index for All Urban Consumers for the prior fiscal year, published by the Department of Industrial Relations.
How Will the New Homestead Exemption in California Protect Homeowners?
Before AB 1885 went into effect on January 1, 2021, the homestead exemptions in California were $75,000 for a single homeowner, $100,000 for a married couple, and $175,000 for families who met specific requirements. However, AB 1885 has changed CCP § 704.730 to “instead make the homestead exemption the greater of $300,000 or the countywide median sale price of a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption, not to exceed $600,000. ”
To better understand what this means, the following are projections for a few of California’s major metropolitan areas, though these numbers are always changing:
- Los Angeles County: $600,000 (Estimated $664,500 Median)
- Riverside County: $400,500
- San Bernardino County: $370,215
- Orange County: $600,000 (Estimated $765,497 Median)
- San Diego County: $600,000 (Estimated $628,500 Median)
- San Francisco County: $600,000 (Estimated $1,444,000 Median
How Do I Calculate the Equity Protected by the Homestead Exemption?
To calculate how much equity a debtor can have in their home while obtaining a Chapter 7 discharge and without having to pay a Chapter 7 trustee, it is important to know the value of the house, then subtract the liens, then subtract the homestead exemption that would apply.
For example, suppose a debtor owns a $400,000 home in a California county where the median sales price was $400,000 in the prior year. Since a creditor or bankruptcy trustee would be unable to produce more than the $400,000 homestead exemption in a forced sale of the house, the courts will refuse to allow the creditor or bankruptcy trustee to proceed, meaning the homeowner will stay in their house.
We highly recommend consulting with bankruptcy attorney who can assist you in obtaining the most favorable outcome in your case.
How to Maximize the Homestead Exemption Using Exemption Planning Methods
Under certain circumstances, debtors may be able to use exemption planning tools to maximize the amount of the homestead. For example, imagine a debtor who sells off their assets before bankruptcy and uses this money to pay down their mortgage. Essentially, this takes otherwise non-exempt assets and turns them into exempt assets. As long as the equity does not exceed the exemption amount, these assets may be exempt in the bankruptcy on all remaining debts. This strategy, known as exemption planning, will likely become more widespread because creditors cannot touch home equity.
Some courts have found that “the conversion of non-exempt assets into exempt assets on the ‘eve of bankruptcy’ is not fraudulent per se. Gill v. Stern (In re Stern), 345 F.3d 1036, 1044–45 (9th Cir.2003). Indeed, where the only evidence presented is that non-exempt assets were ‘deliberately converted to exempt assets just prior to filing the bankruptcy petition,’ such evidence is ‘insufficient as a matter of law to establish fraud.’ Id. (quoting Wudrick v. Clements, 451 F.2d 988, 990 (9th Cir.1971)). In other words, debtors may maximize their exemptions, even when they do so shortly before the filing of a bankruptcy petition. See also House Report of Bankruptcy Reform Act of 1978, H.R. REP. NO. 95–595, at 361 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6317 (‘As under current law, the debtor will be permitted to convert nonexempt property into exempt property before filing a bankruptcy petition. The practice is not fraudulent as to creditors, and permits the debtor to make full use of the exemptions to which he is entitled under the law.’).” In re Thomas, 477 B.R. 778, 782–83 (Bankr. D. Idaho 2012) (also discussing exceptions to this rule).
Note that 11 U.S.C. Section 522(o) provides some limitations on certain bankruptcy planning in which a mortgage is paid down shortly before a bankruptcy. See In re Craig, No. 12-60488-7, 2012 WL 6645692 (Bankr. D. Mont. Dec. 20, 2012) (discussing the Section 522(o) limitations). It is best to discuss these matters with a bankruptcy attorney and consider making a good faith payment to other creditors in addition to secured creditors. Moreover, Debtors should wait at least the 90-day preference period after payment before filing the bankruptcy to avoid the argument that the mortgage paydown is a preferential payment.
Homestead Exemption on Property Acquired in the 1,215 Days Before a Bankruptcy
Note that some bankruptcy trustees might argue that this is improper under some circumstances. For example, 11 U.S.C. Section 522(p)(1), absent certain exceptions, electing “to exempt property under State or local law, a debtor may not exempt any amount of interest that was acquired by the debtor during the 1215-day period preceding the date of the filing of the petition that exceeds in the aggregate $125,000 in value in— (A) real or personal property that the debtor or a dependent of the debtor uses as a residence; or…(D)real or personal property that the debtor or dependent of the debtor claims as a homestead.” Note that under 11 U.S.C. Section 522(p)(2)(B): “For purposes of paragraph (1), any amount of such interest does not include any interest transferred from a debtor’s previous principal residence (which was acquired prior to the beginning of such 1215-day period) into the debtor’s current principal residence, if the debtor’s previous and current residences are located in the same State.” For example, the Ninth Circuit held “that…[a debtors] homestead is not subject to the $125,000 cap contained in Section 522(p), because he purchased the underlying property interest more than 1215 days before the bankruptcy filing.” In re Greene, 583 F.3d 614, 625 (9th Cir. 2009).
Do I Need to Record a Homestead?
“Under California law, two species of homestead protection are available to judgment debtors, the ‘automatic’ (or Article 4) homestead exemption and the ‘declared’ (or Article 5) homestead protection, respectively. These protections are available under different circumstances, they serve different purposes and they confer different rights on debtors.” In re Pass, 553 B.R. 749, 757 (B.A.P. 9th Cir. 2016).
Automatic Homestead Exemption in California
“The Article 4 automatic homestead exemption is applicable under California law when a person’s homestead is damaged, destroyed, taken by eminent domain or sold involuntarily in satisfaction of a debt.” CCP § 704.720(b). For purposes of bankruptcy law, the creation of the bankruptcy estate upon the filing of the petition is treated as equivalent to an involuntary sale. In re Diaz, 547 B.R. at 334. Thus, the automatic homestead exemption is applicable in bankruptcy cases. This is an ‘exemption’ in the familiar bankruptcy law sense: it prevents the judgment creditor (or the bankruptcy trustee) from forcing a sale of the homestead unless there is sufficient equity to pay the debtor the amount of the exemption. The debtor is entitled to be paid ahead of the judgment creditor or trustee. CCP § 704.850(a)(1)-(4).
The exemption protects a ‘homestead,’ defined as a dwelling in which the debtor or the debtor’s spouse resided on the date the judgment creditor’s lien attached (in bankruptcy, the petition date) and has resided continuously until the court’s determination that the dwelling is a homestead. CCP § 704.710(c). Thus, this protection is available in bankruptcy if the debtor was living in the home on the petition date. The exemption is ‘automatic’ in the sense that it requires no affirmative act by the debtor to make it effective; rather, it applies automatically to any dwelling that meets the definition.” In re Pass, 553 B.R. 749, 757 (B.A.P. 9th Cir. 2016).
Even further, a declared homestead can protect a homeowner’s equity in their home. As the Ninth Circuit Bankruptcy Appellate Panel explained:
If, however, the debtor chooses to record a declaration of homestead with the county recorder’s office, the debtor is entitled to additional protections, including, without limitation, the following:
i. Lien Attachment: If a debtor is entitled to an automatic homestead exemption, the filing of a declaration of homestead prevents judgment liens from attaching to the portion of the debtor’s equity in the homestead covered by the exemption. CCP § 704.950(c). Note that this provision does not independently create an impediment to a forced sale. See CCP § 704.920. It shields the exempt equity against the future attachment of judgment liens. See Katz v. Pike (In re Pike), 243 B.R. 66, 70 (9th Cir. BAP 1999).ii. Voluntary Sale: If a homesteader voluntarily sells the declared homestead, the proceeds of that sale are themselves exempt for six months. CCP § 704.960(a). This protects debtors from the danger that eager creditors will pounce as soon as the homestead is reduced to cash. Under this provision, the debtor has six months to reinvest that cash before creditors can reach it.This protection differs from the lien attachment protection in two important ways. First, it creates an actual exemption (in proceeds of a voluntary sale), rather than merely enhancing the automatic exemption. Second, it can exist even if a debtor is not entitled to an automatic exemption, for instance, if the debtor does not satisfy the continuous residency requirement. In re Anderson, 824 F.2d at 757 (after homestead declaration is recorded, “moving away from the homestead does not destroy the [voluntary sale] exemption status”).As noted above, the protections pertaining to a declared homestead are separate and distinct from the automatic homestead exemption, though a debtor may enjoy both sets of protections if he or she satisfies the requirements for both. A declaration of homestead by itself generally does not confer protections or rights in relation to a forced sale. Kelley v. Locke (In re Kelley), 300 B.R. 11, 21 (9th Cir. BAP 2003); In re Anderson, 824 F.2d at 758.
In re Pass, 553 B.R. 749, 757–58 (B.A.P. 9th Cir. 2016)
Outdated Limits on Homestead Exemption Do Not Apply in Bankruptcy
Creditors have argued that California Code of Civil Procedure § 704.965 does not allow debtors to claim the new, increased homestead exemption if the judgment was recorded before 2021. However, this argument has been rejected by multiple cases. Courts have instead ruled that debtors are not limited to to a lower, pre-2021 amount even if the declared homestead was recorded before 2021. See In re Zall, No. BAP.EC-05-1476-MOSB, 2006 WL 6811022, at *4 (B.A.P. 9th Cir., Sept. 5, 2006). Rather, the declared homestead is deemed irrelevant because the automatic homestead exemption effective on the petition date of the bankruptcy defeats any outdated limits on the declared homestead exemption. This allows debtors to claim the increased homestead exemption despite a previously declared, pre-2021 homestead exemption.
Can I Claim a Homestead Exemption in California if I’m Not On Title?
Courts have provided guidance on the types of property interests that are available for a homestead exemption. As a judge in the Central District of California explained in 2020, some legal interests may be entitled to a homestead exemption. In re Nolan, 618 B.R. 860, 866–67 (Bankr. C.D. Cal. 2020). For most homeowners, being a legal owner on record title along with living at the house as their residence on the date that the judgment attaches or that the bankruptcy is filed will generally suffice.
Can I Claim a Homestead Exemption if I Don’t Live at the Property?
Sometimes, a homeowner may be able to claim a homestead exemption even if they are absent from the property. “Pursuant to California law, the factors a court should consider in determining residency for homestead purposes are (1) physical occupancy of the property and (2) the intention with which the property is occupied. A debtor temporarily absent from the property on the date of the petition can claim a homestead exemption. CCP § 704.710(c) was amended in 1983 to delete the requirement of actual residency on the date the automatic homestead exemption claim is made.” In re Pham, 177 B.R. 914, 918–19 (Bankr. C.D. Cal. 1994).
As a California court explained in 2008: “Continuous residence does not mean that the homeowner cannot leave the dwelling, i.e., to go to the grocery store, to work, etc. It does not even mean that the homeowner cannot go on vacation, travel, or live away from his home for a temporary period of time.” California Coastal Com. v. Allen (2008) 167 Cal. App. 4th 322, 330–31.
While these cases suggest that it may be possible to claim a homestead exemption in a property despite a lack of residency on the date of a bankruptcy petition or judgment attaching to the property, the safest course of action is to reside at the home before a bankruptcy and document that you done so to prevent this homestead exemption issue from arising.
Can I Claim a Homestead if Only My Former Spouse Lives at the Property?
Sometimes, the debtor is separated from or divorced from their spouse or former spouse, but seeks to claim a homestead in the property they moved from. The law was explained by one court as follows:
It is Section 704.720(d) [of the Cal. Civil Code] that creates the residual, potential benefit of a homestead exemption for individuals in positions similar to that of the debtor: those who no longer reside in the ‘homestead’ and who may be either separated or divorced from a spouse, or former spouse, who still resides in the homestead. The Section states in pertinent part: “[i]f a judgment debtor is not currently residing in the homestead, but his or her separated or former spouse continues to reside in or exercise control over possession of the homestead, that judgment debtor continues to be entitled to an exemption under this article until entry of judgment or other legally enforceable agreement dividing the community property between the judgment debtor and the separated or former spouse, or until a later time as specified by court order.” Cal. Civ. Pro.Code § 704.720(d) (West 2012).
In re Clark, No. 10-23496-RAG, 2012 WL 3597410, at *3 (Bankr. D. Md. Aug. 20, 2012), aff’d sub nom. Clark v. Guttman, No. CCB-12-2673, 2013 WL 812017 (D. Md. Mar. 4, 2013).
“The statutory scheme defines only one homestead exemption and makes no allowances for spouses who live apart…. A person is considered a spouse until such time as a court enters ‘a judgment decreeing legal separation of the parties….’ Cal. Civ. Proc. Code § 704.710(d). ‘Where the judgment debtor is not currently residing in the residence, but his or her separated or former spouse continues to reside in or exercise control over possession of the homestead, the judgment debtor is entitled to an exemption until (i) entry of judgment or other legally enforceable agreement dividing the parties’ community property or (ii) a later time as specified by court order.’ 2 Alan M. Ahart, Cal. Prac. Guide: Enforcing Judgments and Debts § 6:1029 (The Rutter Group 2017).” Forreststream Holdings Ltd. v. Shenkman, No. 16-CV-01609-LB, 2017 WL 4176352, at *4 (N.D. Cal. Sept. 21, 2017).
In fact, Ninth Circuit law allows a current or former spouse to file their own bankruptcy to claim a homestead, even after their current of former spouse already filed claiming a lower homestead exemption. See In re Steward, 227 B.R. 895 (9th Cir. BAP 1998).
Can a Chapter 7 Bankruptcy Trustee Take Away a Homestead Exemption for Bad Faith Conduct in Bankruptcy?
Luckily for California homeowners and Chapter 7 bankruptcy filers, the homestead exemption cannot be taken away by the Bankruptcy Court for bad faith conduct. This issue went to the United States Supreme Court in 2014, where the court found that: “The Bankruptcy Court thus violated § 522’s express terms when it ordered that the $75,000 protected by [the debtor]’s homestead exemption be made available to pay [the Chapter 7 Trustee]’s attorney’s fees, an administrative expense. In doing so, the court exceeded the limits of its authority under § 105(a) and its inherent powers.” Law v. Siegel, 571 U.S. 415, 422–23 (2014).
Tricks and Tips to Maximize the Homestead Exemption in California
Many California homeowners know they are eligible to use a homestead exemption, but don’t know what that means. Here are a few examples of home a homestead exemption can help you.
How to Claim a Homestead Exemption in Chapter 7 Bankruptcy
In a Chapter 7 bankruptcy, a trustee is appointed on behalf of the bankruptcy creditors to liquidate the debtors assets. This liquidation is subject to one major exemption: the trustee will only liquidate assets that produce value for the bankruptcy estate and its creditors. As it relates to the homestead, if the trustee cannot produce any value for creditors after paying the debtor / homeowner their homestead exemption in a Chapter 7 bankruptcy, the trustee is effectively prohibited from selling the home because it would produce no value. Related to this concept is that the trustee must also pay the ordinary costs of sale, including a broker’s fee, along with escrow and title fees. Even further, the trustee may have a rosy view of the home’s value. Many times, debtors threatened with a sale of their house are best advised to contact an experienced bankruptcy attorney to negotiate on their behalf to prevent the sale of the property. This settlement in Chapter 7 bankruptcy means that the creditors will receive the certainty of some payment while forgoing the chance to receive a greater amount.
Under California’s new homestead law, more debtors will be able to walk out of a Chapter 7 bankruptcy paying the trustee nothing in what is known as a “no asset” case because the equity simply won’t cover the homestead exemption.
How to Avoid (Remove) a Judgment That Impairs Your Homestead Exemption in Bankruptcy Under 11 U.S.C. Section 522(f)(1)
Going even further, a bankruptcy discharges only a debtor’s liability for a debt. However, it does not discharge the liability of the debtor’s property. For example, a debtor who files a bankruptcy with a car that is worth less than the loan will be absolved of liability for any further payments on the loan, but the car can still be repossessed by the secured lender if the debtor doesn’t pay after the bankruptcy.
Related to this concept, many debtors in bankruptcy have judgment liens recorded in the county where their house is located. Under bankruptcy parlance, this usually means that the judgments “impair” their homestead by remaining as liens on the property.
The remedy for this is that a debtor in bankruptcy can file a motion under 11 U.S.C. Section 522(f)(1) to avoid the lien impairing their homestead. Under Section 522(f)(1)(A) of the Bankruptcy Code, the following conditions must be met:
- The lien must be a judicial lien (i.e., a judgment, not a mortgage)
- The debtor must have an interest in the secured property (e.g., they are usually the owner of record)
- The debtor must claim a valid exemption in the property (e.g., a homestead exemption)
- The lien must impair an exemption in the property (the debtor must show that the equity in the property after mortgages will be less than the homestead exemption)
Since California has increased the amount of the homestead exemption, this bankruptcy tool is now available to a wider array of debtors.
How to Benefit from a Homestead Exemption in Chapter 13 and Chapter 11 Bankruptcy Reorganizations
The homestead exemption also plays an important role in bankruptcy reorganizations, such as Chapter 13, Chapter 11, and even the rarely-used Chapter 12. Specifically, debtors are bound in reorganizations to pay their debts over time, such as a 60 month plan in Chapter 13, from their disposable income as calculated by the court under specific formulas.
However, there is a special rule in Chapter 13 and Chapter 11 that a debtor must pass the “best interest of creditors test.” 11 U.S.C. Section 1325(a)(4) & 1129(a)(7) . This test requires that the debtor pay as much to the creditors as they would receive in a Chapter 7 liquidation. In other words, if the debtor has considerable assets, but minimal disposable income, they can’t choose the chapter of bankruptcy, notably a reorganization, that allows them to pay less than creditors would receive if their assets were simply sold off in a liquidation.
Luckily for debtors, this comparison under the best interest of creditors test includes that the creditors would not receive the benefit of the California homestead exemption in Chapter 7. Since home equity is often one of the largest assets that debtors would have in bankruptcy, the increased California homestead exemption will mean that the best interest of creditors test will rarely show that creditors will receive more in Chapter 7.
The bottom line is that Chapter 13 and Chapter 11 debtors can now pay even less they otherwise would in a monthly payment plan by claiming the homestead exemption that reduces the assets available to creditors under the best interests of creditors test.
Am I Required to Reinvest Homestead Proceeds in a New House?
“The debtor’s share of the proceeds are not fully exempt either. If the debtor does not reinvest his proceeds in a new homestead within six months of receipt, they lose their exempt status. Cal.Civ.Proc.Code § 704.720(b).” In re Jacobson, 676 F.3d 1193, 1198 (9th Cir. 2012). Specifically, the rule is that: “The proceeds are exempt for a period of six months after the time the proceeds are actually received by the judgment debtor, except that, if a homestead exemption is applied to other property of the judgment debtor or the judgment debtor’s spouse during that period, the proceeds thereafter are not exempt.” Cal. Code. Civ. Proc. § 704.720(b).
Homestead Exemption Protections Against Judgment Creditors
California law also protects homeowners via the homestead exemption when judgment creditors seek to collect by selling the debtor’s home. These laws would thus apply in state court proceedings. This is because “the interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale obtained under this article and the dwelling exemption shall be determined under this article.” Cal. Code Civ. Proc. Code § 704.740(a). When this occurs, the court will hold a hearing to determine if the homestead exemption applies, the amount of the homestead exemption, and the value of the property such that a sale will produce a payment to the creditor. Cal. Code Civ. Proc. § 704.780.
Can I Create a Lien on My Own Home?
In a word, no. A homeowner cannot “slap a lien” on his or her own home just before filing for bankruptcy in the hope that this will reduce equity to below the homestead amount. This may be considered a fraudulent transfer or preference unless a preference defense applies. This is due to the fact that a homeowner cannot have a trust deed on his or her own home based on the doctrine of merger. 30 Cal. Jur. 3d Estates § 8.
What this Means for Debtors
For debtors, the new homestead exemption is extremely beneficial as sympathy is high for borrowers right now. People with expensive homes who are in a high “asset bracket” are now potential bankruptcy candidates. For example, those with fixed business costs that they cannot pay due to the coronavirus pandemic may now be able to file for bankruptcy even if they have a lot of equity in their home.
Additionally, borrowers struggling between making their mortgage payments and credit card payments may no longer have to choose. Chapter 7 bankruptcy will discharge credit card debts while borrowers can continue to make mortgage payments.
What this Means for Creditors
Creditors find themselves in a precarious situation. Homeowners with hundred of thousands of dollars in equity can now file for bankruptcy and still keep their homes. For example, a single homeowner who, before the enactment of AB 1885, would only have a $75,000 homestead exemption can now have up to a $600,000 homestead exemption (depending on location) that is shielded from creditors. Creditors may find that loaning in California is now higher risk and may therefore choose to stay out of state. They may also charge higher interest rates since there is a higher risk of default. Overall, the increase in homestead exemption is meant to benefit debtors and will be disadvantageous to creditors.
Contact a Real Estate & Bankruptcy Attorney With Experience in Homestead Exemptions in Los Angeles, San Jose, San Diego, Orange County, San Francisco, Sacramento, Riverside, and Surrounding Areas of California
This article is only a short summary of the complicated rules that homeowners can use for protection under the California homestead exemption. The attorneys at Talkov Law are always keeping up to date on the latest changes to the law. With vast experience in both real estate law and bankruptcy law, Talkov Law can help answer questions you have regarding the homestead exemption and how it applies to your unique situation. Our attorneys have litigated the homestead exemption before the Ninth Circuit Bankruptcy Appellate Panel, and they can assist you, as well. Call (844) 4-TALKOV (825568) or contact us online for a free, 15 minute consultation.
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