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Should You File a Homestead Declaration in California?

Written By: Melissa C. Marsh, Esq., California Attorney, April 2012 Add to Favorites
In California, there are two types of homesteads: (1) automatic and (2) declared. Although the filing of a declared homestead does add a little to the homestead protection that California law automatically provides to all homeowners, similar protections are enjoyed by homeowners who have not properly recorded a homestead declaration.

As implied, an automatic homestead attaches to the home you live in and will protect some of your equity until you sell your home. A declared homestead, on the other hand, is a legal document that must be prepared and recorded with your County Registrar-Recorderís office. A declared homestead will protect some of your equity in your home for six (6) months after you sell your home if: (1) you sell your home and buy another home within six months; AND (2) The protected amount is used to buy another home; AND (3) You record a declared homestead on the new home.

Both automatic and declared homesteads protect the same amounts:

  1. $75,000 for an individual and $150,000 for a married couple;
  2. $100,000 if the homeowner lives with at least one family member who has no interest in the house;
  3. $175,000 if the homeowner is 65 years of age or older, or is physically or mentally disabled;
  4. $175,000 if the homeowner is 55 years of age or older and single with an annual income of $15,000 or less; and
  5. $175,000 for a married couple with a combined annual income of $20,000 or less.
Why Some People File A Declared Homestead.

Homeowners who are in financial trouble, or who expect to be in financial trouble, may desire to contact an attorney for advice on the need for filing a homestead declaration. The following are some of the reasons a financially troubled homeowner may want to file and record a declared homestead, and not rely exclusively on the automatic homestead:

  1. If the individual owns more than one property, the owner can choose which of several different dwellings s/he desires to protect with the declared homestead.
  2. The protection provided by a declared homestead continues to apply to that property even if the owner moves.
  3. The protection provided by a declared homestead applies to the proceeds of a voluntary sale. If no declared homestead has been recorded, the protection of the owner's equity in a home may be lost in the event of a voluntary sale of the home. (This means that the proceeds of the voluntary sale of the home may go to a judgment creditor, rather than the owner.)
  4. If a declared homestead has been properly recorded, the law is clear that the proceeds from a voluntary sale (up to the dollar limits of the homestead law which is $75,000 for a single individual and $150,000 for a married couple) will go to the owner and can thereafter be used to purchase another home. Only if a declared homestead has been properly recorded will the proceeds of a voluntary sale assuredly be protected after they are used to purchase another home; only then will the protection given to the first home be carried over to the second home.
However, neither the Automatic nor the Declared homestead Will Protect You Against The Following:
  1. Foreclosure Action Brought By a Secured Creditor, such as the lender who has financed the original purchase, or a lender who extended a second mortgage.
  2. The Enforcement of a Properly Recorded Mechanics Lien. If a contractor, subcontractor or laborer has filed a valid claim of mechanicís lien, neither the automatic or declared homestead will offer any protection.
  3. A judgment for child, or spousal support.
To file a declared homestead on a property located in Los Angeles County, you must complete the homestead declaration, sign it, have it notarized and then file it with the appropriate fees with the County Registrar Recorder's Office. For ease, we have provided a link to the Los Angeles County Recorder's Home Declaration Form Here. You can contact the Los Angeles County Registrar-Recorderís office for fees and filing addresses by calling: 562-462-2125

Please note that in California no one is permitted to charge more than $25 to assist you with the preparation, or filing, of a homestead.


Tags: california homestead, Ca homestead declaration, homestead in california
Posted In: Real Estate Reporter 

 
 
 
 

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Disclaimer: The information presented on this web site was prepared by Melissa C. Marsh for general informational purposes only and does not constitute legal advice. The information provided in my articles and alerts should not be relied upon, or used as a substitute for professional legal advice from an attorney you retain to advise or represent you. Your use of this Internet site does not create an attorney- client relationship. Transmission of this article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. All uses of the contents of this site, other than personal uses, are prohibited. You may print or email a copy of any information posted on this web site for your own personal, non-commercial, use, but you may not publish any of the articles or posts on this web site without the Express Written Permission of Melissa C. Marsh.


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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.