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Homestead law protects Texas homeowners from certain types of foreclosures and liens against their family home. The law is designed to ensure that families can maintain a place to live despite financial struggles and debts. However, homestead law does not protect against all types of debts, liens, and foreclosures. In addition, there are a number of ways a creditor can defeat a homestead law claim to collect or satisfy an outstanding debt.
This article will examine five common strategies to defend against a homestead claim. If you have questions about homestead law and the means of defeating a homestead claim in Austin, Pflugerville, or Round Rock, contact the real estate attorneys
at the office of Sheehan Law, PLLC
for a consultation.
Homesteads are not permanent and can be lost through abandonment. Naturally, if a homeowner abandons their homestead, they may not seek the protections that it affords. However, while it is possible to abandon a homestead, homestead protection is not easily lost once acquired. The burden of proving abandonment is high, and the inquiry is fact-intensive.
Abandonment of a homestead requires two elements:
- The debtor must discontinue use of the homestead by overt acts, and
- Intend to permanently abandon the property as a homestead.
A showing of intent to abandon a homestead is essential to proving abandonment. Physical absence alone does not constitute abandonment. Instead, a homeowner must have intent to never return or use the property as a homestead. This intention to not return must be present, definite, and permanent. Intention may be explicitly expressed or implied by conduct.
However, intention alone will never be sufficient to abandon a homestead. The intention must be accompanied by an overt act consistent with the intent. For example, a homeowner may express clear intent to sell her home and abandon it as a homestead, but never actually sell the home and continue to reside in it. While the homeowner has the requisite intent to abandon, she has not taken any overt act consistent with this intent. In fact, she has taken action that is inconsistent
with abandonment by remaining in her home.
These two elements, taken together, create a situation in which a homestead claimant need not reside in their homestead at all times to maintain it. A homestead claimant may, for example, relocate temporarily for work, rent out the homestead temporarily, or live in a vacation home for part of the year while still maintaining their homestead, so long as they have intention to return. This also includes temporary absence, such as serving a prison sentence. However, as abandonment is a fact-intensive question, the length of time spent away from home can be considered, but it will not on its own be dispositive.
A homestead claim can also be defeated through estoppel. Estoppel claims generally arise when a claimant is attempting to perpetuate fraud on creditors, most commonly through false representations or concealments. In situations like this, a claimant may be stopped from seeking homestead protections.
In order to successfully defeat a homestead claim by estoppel, the following elements must be shown:
- The homestead claimant made a false representation or concealed a material fact that they have knowledge of, actual or constructive.
- They did so with the intent that it should be acted on.
- The lender did not have knowledge of these facts.
- The lender detrimentally relied on the concealment or representation.
The burden of proving these elements is on the creditor seeking to defeat homestead protection. The misrepresentations and concealments are usually related to the fact that the property in question is a homestead in the first place.
Alienation is a relatively intuitive means of defeating a homestead claim. Alienation (i.e. the sale or transfer) of a homestead generally ends the protection. This is often conflated with abandonment, but is a distinct means of terminating a homestead. The key distinction between an alienation claim and an abandonment claim is that, with alienation, a homestead may be terminated even if the claimant continues to possess the property but has transferred title to someone else. A sale or transfer must be completed before homestead protection is terminated. In addition, note that plans or attempts to sell the property that ultimately fall through do not terminate homestead protection.
Death of a homestead claimant can, but does not always, terminate homestead protection. Homestead protection will not terminate upon the death of the claimant if:
- The estate is insolvent, and
- The claimant is survived by a spouse, minor child, or unmarried adult child still living with the family.
If these conditions are met, the homestead will pass according to the deceased claimants will (or by statute, if intestate). If the claimant dies without a surviving spouse or qualifying child, homestead protection will be terminated.
Judicial estoppel is a unique doctrine that prevents a party from asserting a position which is inconsistent with a previously held position in the same judicial proceeding. For a successful judicial estoppel claim the following elements must be met:
- A sworn prior inconsistent statement is made in a judicial proceeding.
- The party who made the statement gained an advantage by making it.
- The statement was not made by mistake, fraud, or duress.
- The statement was deliberate, clear, and unequivocal.
Questions? Contact Sheehan Law, PLLC
For answers to further questions relating to homestead claims in Texas and the means by which they can be terminated, please do not hesitate to contact the experienced real estate attorneys at Sheehan Law, PLLC. To schedule a consultation, call us today at (512) 640-0588 or fill out our online contact form