Kansas Homestead Law

JurisdictionKansas,United States
CitationVol. 65 No. 04 Pg. 20
Pages20
Publication year1996
Kansas Bar Journals
Volume 65.

65 J. Kan. Bar Assn. April, 20 (1996). KANSAS HOMESTEAD LAW

Journal of the Kansas Bar Association
April, 1996

KANSAS HOMESTEAD LAW

Roger L. Theis

Karl R. Swartz

Copyright (c) 1996 by the Kansas Bar Association; Roger L. Theis and Karl R. Swartz

INTRODUCTION

The homestead exemption is an American institution with no parallel in other lands. [FN1] Similarly, it is not rooted in the common law, [FN2] and is purely constitutional or legislative in origin. The Kansas homestead provision dates to the time of the establishment of Kansas as a state. When the Kansas Territorial Assembly framed the homestead provision at the Wyandotte Convention in 1859, there was little guidance or consensus regarding homesteads. The earliest enactment of a homestead exemption is traced to the Republic of Texas in 1839. [FN3] While other states had enacted homestead laws by the time the Wyandotte Convention assembled, "it was a scarcely recognized political doctrine." [FN4] It is no doubt for this reason that the abundance of case law in this area occurs early in our history and seemingly explores every conceivable facet.

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The leading proponent for the homestead provision in the form finally adopted at the Wyandotte Convention was Samuel A. Kingman. He forcefully argued that a true homestead must be distinguished from a mere exemption law:

But in this action here, I wish to insist on the clear distinction between the homestead and an exemption law. And I can see in the substitute proposed by the gentleman from Douglas nothing but an exemption law. It looks to me that every essential feature -- every requisite of a homestead law, as I have advocated it, is abandoned in this substitute, and if adopted here, I shall abandon all hope of a homestead in our legislation. To limit the value of the homestead to two thousand dollars, is to say to the owner: so long as your land remains unimproved -- so long as it shall remain poor and sterile, it is yours. But the moment you put your labor upon it -- the moment you improve and adorn it, and make it inhabitable and beautiful, it shall be taken away from you for the payment of your debts. This amendment tells him that his labor shall be in vain -- tells him to keep away the hand of improvement, for if you advance its value beyond our limit, your homestead, your reliance for the support of your family is gone. Sir, any limitation on the value of the homestead is wrong. One hundred thousand dollars is as disgusting to me as one thousand . . . .I am not willing to give up this homestead entirely, and take in the place of it this bastard child of an exemption law. [FN5] As Associate Justice, and later Chief Justice of the Kansas Supreme Court, [FN6] Kingman laid the foundation for interpretations of the homestead clause that have carried through to the most modern decisions.

Notwithstanding Kingman's view that the homestead is wholly different from an exemption law, in effect it operates similarly to exempt the residence from the claims of creditors. [FN7] "The homestead is something toward which the eye of the creditor need never be turned." [FN8] Unlike other exemption laws, ownership of an interest in the homestead by itself is not sufficient to invoke its protections. The homestead must be occupied [FN9] as a residence, [FN10] and, under the constitutional provision, it must be occupied by the family [FN11] of the owner. [FN12]

Exemption from the claims of creditors is, however, only one aspect of the homestead. Its other principal aspect is protection from alienation by the actions of one's spouse acting alone. The earliest decisions reflected the policy intended by the Kansas Constitution's framers to give women a voice in the alienation of the property constituting the homestead. [FN13] The "joint consent" requirement for alienation of the homestead has taken on sacred meaning. [FN14]

Although the homestead was early referred to as an estate, [FN15] it is not actually an estate in property. The homestead is perhaps more properly thought of as a cloak or quality that surrounds the estate (whatever that estate may be) and shields it from all but those who come within the constitutional exceptions from alienation. It does not confer property rights, [FN16] and its protections generally depend upon an existing ownership interest in the underlying property. [FN17] The homestead provision does not affect the passage of title by descent or devise, [FN18] but may affect the right to occupancy during the life of those who are afforded the homestead protection. [FN19]

The Kansas Judicial Council has published two comprehensive articles on Kansas homestead law -- James W. Taylor's "The Kansas Law of Homestead," published in 1935, and William Porter's "Homestead Law in Kansas," published in 1951. Since the publication of the latter, the Kansas Legislature has amended the homestead statutes on several occasions, and the Kansas and federal courts have published numerous decisions addressing Kansas homestead issues. This article was prepared at the request of the Board of Editors of The Journal of The Kansas Bar Association, which suggested that an updated overview of Kansas homestead law would be beneficial to the bar.

This article is concerned primarily with the substantive

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law of homestead under the Kansas Constitution and statutes and, except for the discussion of various procedural matters in the probate [FN20] and bankruptcy contexts, [FN21] generally does not deal with procedural matters. In view of the increase in bankruptcies since 1951 [FN22] and the proliferation of homestead decisions rendered by the bankruptcy courts, a separate section of this article is devoted to "The Homestead in Bankruptcy." [FN23]

I. CONSTITUTIONAL AND STATUTORY FRAMEWORK

A. The Constitutional Provision

Section 9 of article 15 of the Kansas Constitution reads as follows:

A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, That provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife: And provided further, That the legislature by an appropriate act or acts, clearly framed to avoid abuses, may provide that when it is shown the husband or wife while occupying a homestead is adjudged to be insane, the duly appointed guardian of the insane spouse may be authorized to join with the sane spouse in executing a mortgage upon the homestead, renewing or refinancing an encumbrance thereon which is likely to cause its loss, or in executing a lease thereon authorizing the lessee to explore and produce therefrom oil, gas, coal, lead, zinc, or other minerals. This provision affords property impressed with homestead rights two basic protections: 1) protection from forced sale by creditors; and 2) protection from alienation without spousal consent.

Two guiding principles are evident in the case law interpreting article 15, section 9. First, while the legislature is free to enlarge the protection given by the constitution, [FN24] it cannot diminish it. [FN25] Thus, in State ex rel. Apt v. Mitchell, [FN26] the Kansas Supreme Court held that in an action to abate a liquor nuisance, the state could not padlock the homestead pursuant to the provisions of K.S.A. 41-806. [FN27] The court noted that "no conditions may be imposed by statute upon the enjoyment of the homestead right." [FN28]

Second, courts should liberally construe the homestead provision in favor of the party claiming the homestead. As stated by the Mitchell court, "Kansas has zealously protected the family rights in homestead property by liberally construing the homestead provision in order to safeguard its humanitarian and soundly social and economic purposes . . . ." [FN29]

B. K.S.A. 60-2301

Section 60-2301 of the Kansas Statutes Annotated currently reads as follows:

A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, or a mobile home, occupied as a residence by the owner or by the family of the owner, or by both the owner and family thereof, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists. [FN30] Until 1979, the statutory provision was substantively identical

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to the constitutional provision. [FN31] In 1979, the Kansas Legislature enlarged homestead rights to include a mobile home. [FN32] More significantly, in 1980 the Legislature revised section 60-2301 to allow an owner without a family to claim homestead rights. [FN33] Under the constitutional provision, and the statutory provision prior to 1980, property could be impressed with homestead rights only if occupied by the family of the owner. [FN34]

C. Other Statutory Provisions.

The Kansas Legislature has enacted various other statutes that afford certain protections...

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