PART 2 HOMESTEAD EXEMPTIONS
| Jurisdiction | Colorado |
Law reviews: For article, "Homestead Marshalling", see 14 Colo. Law. 1612 (1985).
■ 38-41-201. Homestead exemption - definitions. (1) Every homestead in the state of Colorado shall be exempt from execution and attachment arising from any debt, contract, or civil obligation not exceeding in actual cash value in excess of any liens or encumbrances on the homesteaded property in existence at the time of any levy of execution thereon:
(a) The sum of seventy-five thousand dollars if the homestead is occupied as a home by an owner thereof or an owner's family; or
(b) The sum of one hundred five thousand dollars if the homestead is occupied as a home by an elderly or disabled owner, an elderly or disabled spouse of an owner, or an elderly or disabled dependent of an owner.
(2) As used in this section, unless the context otherwise requires:
(a) "Disabled owner", "disabled spouse", or "disabled dependent" means an owner, spouse, or dependent who has a physical or mental impairment that is disabling and that, because of other factors such as age, training, experience, or social setting, substantially precludes the owner, spouse, or dependent from engaging in a useful occupation, as a homemaker, a wage earner, or a self-employed person in any employment that exists in the community and for which he or she has competence.
(b) "Elderly owner", "elderly spouse", or "elderly dependent" means an owner, spouse, or dependent who is sixty years of age or older.
Source: R.S. p. 385, § 57. G.L. § 1343. G.S. § 1631. R.S. 08: § 2950. C.L. § 5924. CSA: C. 93, § 23. L. 51: p. 522, § 1. CRS 53: § 77-3-1. C.R.S. 1963: § 77-3-1. L. 73: p. 916, § 2. L. 75: Entire section R&RE, p. 1444, § 1, effective July 14. L. 81: Entire section amended, p. 1828, § 1, effective May 21. L. 91: Entire section amended, p. 384, § 6, effective May 1. L. 2000: Entire section amended, p. 717, § 3, effective May 23. L. 2007: Entire section amended, p. 879, § 7, effective May 14. L. 2015: (1) amended, (SB 15-283), ch. 301, p. 1241, § 6, effective July 1.
Cross references: For the legislative declaration in the 2007 act amending this section, see section 1 of chapter 226, Session Laws of Colorado 2007.
I. General Consideration.
II. Effect of Exemption.
Law reviews. For article, "Executions and Levies on Tangible Property", see 27 Dicta 143 (1950). For note, "A Discussion of Garnishment and Its Exemptions", see 27 Dicta 453 (1950). For note, "Colorado Homestead Now Assertable Against Heirs", see 25 Rocky Mt. L. Rev. 84 (1952). For article, "Trusts and Estates", see 30 Dicta 435 (1953). For note, "The Homestead Rights of Minor Children in Solvent Estates", see 25 Rocky Mt. L. Rev. 370 (1953). For article, "Marital Property Interests", see 27 Rocky Mt. L. Rev. 180 (1955). For article, "Homestead v. Mechanic's Lien", see 40 Den. L. Ctr. J. 2 (1963). For comment, "The Effect of Certified Realty on Mortgage Foreclosure in Colorado", see 52 U. Colo. L. Rev. 301 (1981). For comment, "The Effect of Certified Realty Corp. v. Smith on Mortgage Foreclosure in Colorado", see 52 U. Colo. L. Rev. 301 (1981). For article, "Election to Sue on a Mortgage Note in Lieu of Foreclosure", which discusses avoidance of judgment liens in bankruptcy, see 13 Colo. Law. 621 (1984). For article, "The Statutory Right of Redemption from Foreclosures", which discusses how the statutory right of redemption from foreclosures is modified by the homestead exemptions, see 13 Colo. Law. 793 (1984). For article, "Colorado Homestead Statutes: Exemption or Allowance?", see 17 Colo. Law. 827 (1988).
Constitutionality. This section does not violate the uniformity clause of § 8 of art. VIII, U.S. Const. or supremacy clause, art. VI, cl. 2, U.S. Const. In re Parrish, 19 B.R. 331 (Bankr. D. Colo. 1982); In re Robinson, 44 B.R. 292 (Bankr. D. Colo. 1984).
Primary purpose of article is to place the property designated as a homestead out of the reach of creditors while occupied as a home, and this is so even though the designation of the property as a homestead occurred after the debt was contracted and immediately before the creditor had attached or levied upon the property, and though the debtor had no other property liable for his debt. Barnett v. Knight, 7 Colo. 365, 3 P. 747 (1884); Haas v. De Laney, 165 F. Supp. 488 (D. Colo. 1958).
The design of this section is to secure to the householder a home for himself and family, regardless of his financial condition, whether solvent or insolvent. Woodward v. People's Nat'l Bank, 2 Colo. App. 369, 31 P. 184 (1892); In re Nye, 133 F. 33 (8th Cir. 1904).
The policy of the state is to preserve the home to the family, even at the sacrifice of just demands, for the reason that the preservation of the home is deemed of paramount importance. McPhee v. O'Rourke, 10 Colo. 301, 15 P. 420 (1887); Univ. Nat. Bank v. Harsh, 833 P.2d 846 (Colo. App. 1992).
Spirit of homestead laws preserves right of occupancy. The spirit and the letter of our homestead laws preserve a right of occupancy for those who stand in the relation of head of the family. In re Wallace's Estate, 125 Colo. 584, 246 P.2d 894 (1952).
Two governing principles underlie all homestead legislation: First, the beneficient design of protecting the citizen householder and his family from the dangers and miseries of destitution consequent upon business reverses or upon calamities from other causes; and, second, the sound public policy of securing the permanent habitation of the family, and cultivating the local interest, pride, and affection of the individual, so essential to the stability and prosperity of a government. Barnett v. Knight, 7 Colo. 365, 3 P. 747 (1884); Weare v. Johnson, 20 Colo. 363, 38 P. 374 (1894).
Benefits of this section are extended to every householder, without qualification, except as to the value and occupancy. Dallemand v. Mannon, 4 Colo. App. 262, 35 P. 679 (1894).
This section does not create an interest in land. The Colorado homestead has been referred to as an "exemption," and nothing more. United States v. Morgan, 554 F. Supp. 582 (D. Colo. 1982).
Federal tax lien foreclosure not barred. This section does not operate to bar foreclosure of the federal government's tax lien. United States v. Morgan, 554 F. Supp. 582 (D. Colo. 1982).
Scope of protection. This section extends certain protection to the premises set apart by the owner as a homestead for his or her family so long as he or she desires to occupy the same as a home for the family, and it protects the same against proceedings by execution and attachment, but it does not appear that further exemption or protection was intended. Wright v. Whittick, 18 Colo. 54, 31 P. 490 (1892).
The words "arising from any debt, contract, or civil obligation" are sufficiently broad and comprehensive to embrace any and all forms of indebtedness, including judgments. Woodward v. People's Nat'l Bank, 2 Colo. App. 369, 31 P. 184 (1892).
Section does not rest upon equitable principles. In no way does this section rest upon the principles of equity, nor in any way yield thereto. McPhee v. O'Rourke, 10 Colo. 301, 15 P. 420 (1887); Helkey v. Ashley, 113 Colo. 175, 155 P.2d 143 (1945).
Exemption statutes are to be liberally construed, so as to promote the humane policy of such legislation, but the courts cannot by construction annex to such statutes consequences not fairly within their purview or intent. Barnett v. Knight, 7 Colo. 365, 3 P. 747 (1884); McPhee v. O'Rourke, 10 Colo. 301, 15 P. 420 (1887); Martin v. Bond, 14 Colo. 466, 24 P. 326 (1890); Weil v. Nevitt, 18 Colo. 10, 31 P. 487 (1892); Wright v. Whittick, 18 Colo. 54, 31 P. 490 (1892); Brooks v. Black, 22 Colo. App. 49, 123 P. 131 (1912); Haas v. De Laney, 165 F. Supp. 488 (D. Colo. 1958).
The right to homestead exemption is not given by the bankruptcy law, but exists, if at all, by virtue of state laws, and the bankruptcy court will allow whatever exemption the state law allows. Edgington v. Taylor, 270 F. 48 (8th Cir. 1920).
There is only one homestead exemption per a specific piece of real property. In re Lambert, 34 B.R. 41 (Bankr. D. Colo. 1983); In re Pruitt, 829 F.2d 1002 (10th Cir. 1987); In re Bryant, 221 B.R. 262 (Bankr. D. Colo. 1998).
And it attaches to the property. In re Bryant, 221 B.R. 262 (Bankr. D. Colo. 1998).
The homestead exemption may not be claimed by one joint owner to the exclusion of the other joint owners. In re Pruitt, 829 F.2d 1002 (10th Cir. 1987); In re Bryant, 221 B.R. 262 (Bankr. D. Colo. 1998); In re Steinke, 522 B.R. 331 (Bankr. D. Colo. 2014).
Exemption under this section attaches automatically upon occupancy of real property as a home by the owner or the owner's family. Univ. Nat. Bank v. Harsh, 833 P.2d 846 (Colo. App. 1992).
Full homestead exemption is applied before any determination is made with respect to any specific joint owner's equity that may be subject to the claims of creditors in a bankruptcy case. In re Dickinson, 185 B.R. 76 (Bankr. D. Colo. 1995).
Homestead exemption policy applies to leased and owned homes. The public policy of a homestead exemption, to secure to the householder a home for himself and family regardless of financial conditions, whether solvent or insolvent, applies with equal force whether the home is occupied under a lease for a term of years or under a fee ownership. In re Hellman, 474 F. Supp. 348 (D. Colo. 1979).
The homestead exemption is available to homeowners and to nonhomeowners alike. In re Parrish, 19 B.R. 331 (Bankr. D. Colo. 1982).
Who may claim exemption. One who does not have title or any claim to real property does not have a right to claim a homestead exemption on such real property. In re Hambric v. Centennial Glass, Inc., 32 B.R. 49 (Bankr. D. Colo. 1983).
Debtor cannot claim a homestead exemption because he did not own real property. What he received upon the death of his mother was an undivided one-third interest in her probate estate, which...
To continue reading
Request your trial