Introduction
This is an outline of the unique protections available to an individual's residence and personal property by what are commonly referred to as the "Texas homestead laws" contained in Art. XVI, Sec. 50 of the Texas Constitution and in Texas Property Code Chapters 41 and 42.
The homestead has always been sacred in Texas. The Texas Constitution provides the homestead of a family or single adult is protected from forced sale for purposes of paying debts and judgments except in cases of purchase money, ad valorem taxes, owelty of partition (divorce), home improvement loans, home equity loans, and reverse mortgages. Further, even a permitted lien must be in writing and signed by both spouses. This protection, combined with the prohibition against garnishment of wages contained in Sec. 28, has long made Texas a haven for debtors.
It is quite possible to make a good salary (which cannot be garnished), own a million dollar Texas home, have numerous judgments against you, and be reasonably secure from creditors. This differs from other states, where judgment creditors can literally put a homeowner on the street with only the clothes on his back. Add a living trust to the mix, and asset protection and estate planning can be combined into an effective unified structure.
Texas homestead laws are liberally construed by the courts. "Indeed, a court must uphold and enforce the Texas homestead laws even though in so doing the court might unwittingly assist a dishonest debtor in wrongfully defeating his creditor." Painewebber, Inc. V. Murray, 260 B.R. 815, 822 (E.D.Tex.2001). Unless a judgment debtor owns investment real estate, sums of cash, or a business with attachable inventory, a judgment against him is essentially uncollectable.
Texas homestead protections are available only to individuals - not corporations or LLC's - and they do not encompass investment or business assets, which should be held in a traditional Texas LLC or the new Texas Series LLC.
What is a "Homestead?"
The answer is not as obvious as one might think. Texas law states that a person's homestead is primarily a question of intent. Even a vacant lot can be homestead if the owner has reasonable expectations of building a home on it.
Property Code Sec. 41.002 supplies the following size limitations:
(a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single adult person not otherwise entitled to a homestead shall consist of not more than 10 acres of land which may be in one or more continuous lots, together with any improvements thereon.
(b) If used for the purposes of a rural home the homestead shall consist of:
(1) for a family, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or
(2) for a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon.
Note that this definition applies to realty and fixtures, not movable personal property, although such personal property may be exempt under Property Code Chapter 42 (see below).
A person may claim an urban homestead or a rural homestead but not both. What constitutes "urban" versus "rural" has been the subject of much litigation. It is a fact issue that may differ from case to case. Once established, however, the initial characterization of the property as urban or rural continues even if the nature of the surrounding area changes. U.S. v. Blakeman, 997 F. 2d 1084.
A family may have only one homestead. Individual family members may not also claim separate homesteads.
Out-of-Staters are Welcome
Can persons from other states declare their intent to reside in Texas and designate a protected homestead there? Yes. If the issue is raised in court, it will be a fact issue to determine whether or not such a declaration was made in good faith (or with the obvious intention of defrauding creditors) and whether there is some actual occupancy as well as additional evidence such as a Texas driver's license, voter registration card, etc. This is not a difficult test to meet, since there is no minimum number of days a person must physically reside in Texas in order to claim a homestead there. If someone has multiple lawsuits and judgments, then moving to Texas to establish a homestead may be an excellent asset protection strategy.
Moving From One Homestead to the Next
The Property Code provides in Sec. 41.001(5)(c) that "The homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale." This expressly permits homestead protections to be rolled over from one homestead to the next, notwithstanding the preference on the part of title companies to collect judgments upon sale of the homestead. Taylor v. Mosty Bros. Nursery, Inc., 777 S.W.2d 568, 570 (Tex.App. - San Antonio 1989, no writ).
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This is an outline of the unique protections available to an individual's residence and personal property by what are commonly referred to as the "Texas homestead laws" contained in Art. XVI, Sec. 50 of the Texas Constitution and in Texas Property Code Chapters 41 and 42.
The homestead has always been sacred in Texas. The Texas Constitution provides the homestead of a family or single adult is protected from forced sale for purposes of paying debts and judgments except in cases of purchase money, ad valorem taxes, owelty of partition (divorce), home improvement loans, home equity loans, and reverse mortgages. Further, even a permitted lien must be in writing and signed by both spouses. This protection, combined with the prohibition against garnishment of wages contained in Sec. 28, has long made Texas a haven for debtors.
It is quite possible to make a good salary (which cannot be garnished), own a million dollar Texas home, have numerous judgments against you, and be reasonably secure from creditors. This differs from other states, where judgment creditors can literally put a homeowner on the street with only the clothes on his back. Add a living trust to the mix, and asset protection and estate planning can be combined into an effective unified structure.
Texas homestead laws are liberally construed by the courts. "Indeed, a court must uphold and enforce the Texas homestead laws even though in so doing the court might unwittingly assist a dishonest debtor in wrongfully defeating his creditor." Painewebber, Inc. V. Murray, 260 B.R. 815, 822 (E.D.Tex.2001). Unless a judgment debtor owns investment real estate, sums of cash, or a business with attachable inventory, a judgment against him is essentially uncollectable.
Texas homestead protections are available only to individuals - not corporations or LLC's - and they do not encompass investment or business assets, which should be held in a traditional Texas LLC or the new Texas Series LLC.
What is a "Homestead?"
The answer is not as obvious as one might think. Texas law states that a person's homestead is primarily a question of intent. Even a vacant lot can be homestead if the owner has reasonable expectations of building a home on it.
Property Code Sec. 41.002 supplies the following size limitations:
(a) If used for the purposes of an urban home or as both an urban home and a place to exercise a calling or business, the homestead of a family or a single adult person not otherwise entitled to a homestead shall consist of not more than 10 acres of land which may be in one or more continuous lots, together with any improvements thereon.
(b) If used for the purposes of a rural home the homestead shall consist of:
(1) for a family, not more than 200 acres, which may be in one or more parcels, with the improvements thereon; or
(2) for a single, adult person, not otherwise entitled to a homestead, not more than 100 acres, which may be in one or more parcels, with the improvements thereon.
Note that this definition applies to realty and fixtures, not movable personal property, although such personal property may be exempt under Property Code Chapter 42 (see below).
A person may claim an urban homestead or a rural homestead but not both. What constitutes "urban" versus "rural" has been the subject of much litigation. It is a fact issue that may differ from case to case. Once established, however, the initial characterization of the property as urban or rural continues even if the nature of the surrounding area changes. U.S. v. Blakeman, 997 F. 2d 1084.
A family may have only one homestead. Individual family members may not also claim separate homesteads.
Out-of-Staters are Welcome
Can persons from other states declare their intent to reside in Texas and designate a protected homestead there? Yes. If the issue is raised in court, it will be a fact issue to determine whether or not such a declaration was made in good faith (or with the obvious intention of defrauding creditors) and whether there is some actual occupancy as well as additional evidence such as a Texas driver's license, voter registration card, etc. This is not a difficult test to meet, since there is no minimum number of days a person must physically reside in Texas in order to claim a homestead there. If someone has multiple lawsuits and judgments, then moving to Texas to establish a homestead may be an excellent asset protection strategy.
Moving From One Homestead to the Next
The Property Code provides in Sec. 41.001(5)(c) that "The homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale." This expressly permits homestead protections to be rolled over from one homestead to the next, notwithstanding the preference on the part of title companies to collect judgments upon sale of the homestead. Taylor v. Mosty Bros. Nursery, Inc., 777 S.W.2d 568, 570 (Tex.App. - San Antonio 1989, no writ).
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