In Financial Trouble?
Worried about Losing Your House?
Homestead Declaration Changed in California 2021 to all larger dollar amount of protection from bankruptcy, judgement, or forced sale
As
of January 1, 2021, California new law gives strapped homeowners with equity a
method not to lose the equity or be forced to sell. Gavin Newsom approved
Assembly Bill 1885, which amends Section 704.730 of California’s Civil Code as
follows:
(a) The
amount of the homestead exemption is the greater of the following:
(1) The countywide median
sale price for a single-family home in the calendar year prior to the calendar
year in which the judgment debtor claims the exemption, not to exceed six
hundred thousand dollars ($600,000).
(2) Three hundred
thousand dollars ($300,000).
(b) The
amounts specified in this section shall adjust annually for inflation,
beginning on January 1, 2022, based on the change in the annual California
Consumer Price Index for All Urban Consumers for the prior fiscal year,
published by the Department of Industrial Relations.
The
exemption amounts raised quite a lot and adjust up for inflation in the future.
Prior
law was confusing and had much lower dollar amounts. If you are in financial
trouble, out of work, out of money, facing bankruptcy this allows a homeowner
in California to save more of the equity than ever before in the past.
The
homestead exemption provides a certain amount of protection from judgment
creditors – those creditors who sued in court and obtained a legal judgment to
collect money owed. A judgment creditor has the right to take several
actions to collect the debt, including selling assets like vehicles and real
estate.
Under
the new law, $300,000 – $600,000 of a home’s equity can’t be touched by
judgment creditors. The amount depends on the median sales of homes in the
county where the property is. So, if you are a homeowner in California who faces
a future judgement lien or is thinking about being forced into bankruptcy you
need to file a Homestead with your County Clerk or Recorder Office. There are
services that will do this for you, as it needs to be notarized and is vital
that you get the address and legal description correct. I believe the maximum
fee they can charge is $25 by law but also the Recorder/Clerk will have a recording
fee.
THIS DOES NOT SAVE YOU FROM FORECLOSURE. Lenders
may require that you lift the Homestead to complete a first mortgage or any
type of refinance. If you are not paying your home loan, this is not a tool to trick the lender. This does not stop a bank from accelerating collection of your mortgage.
The
Orange County median home value for 2020 is $785,000.
There
are ins and outs:
1. Those who use their homes
as collateral for loans will not be protected by AB 1885. The lender will have
the right to foreclose, and the borrower will not qualify for the exemption.
2. Homeowners who sell their
homes are not protected from judgment creditors – the homestead exemption only
applies in the case of a forced sale.
3. State law does not
protect from federal actions. IRS can come and swoop in if you have equity the
Homestead does not help homeowners.
4. The current homestead
exemption in California may be automatic without going through the effort of
filing and recording the form, depending on some terms and conditions.
5. If you file a Homestead
declaration, the homestead’s equity isn’t lost after the home sells, if recorded
proceeds from selling the home are protected for six months after the sale.
My suggestion if you are struggling in this Covid
pandemic with piles of credit card debt that you cannot pay, or a possible
lawsuit from some bad problem, or are thinking of ways out such as bankruptcy
filing the Homestead Declaration will give you a good night’s sleep that a
bankruptcy court can’t force the sale of your home and take the money.
Forms are available as fillable online through your
library, recorder, title company.
|
Recording requested by (name): ____________________________________________ When recorded mail to and mail tax statements to: ____________________________________________ ____________________________________________ ____________________________________________ ____________________________________________ |
Recorder’s Use Only |
|
|
|
Assessor’s Parcel No. (APN): ________________________________ |
Declaration of Exemption From Gov’t
Code § 27388.1 Fee Transfer is exempt from fee per GC § 27388.1(a)(2): recorded concurrently “in connection
with” transfer subject to Documentary Transfer Tax recorded concurrently “in connection with” a transfer of
residential dwelling to an owner-occupier Transfer is exempt from fee per GC 27388.1(a)(1): Fee cap of $225.00 reached Not related to real property |
||
We,
________________________________________ and ________________________________________, do hereby certify and declare as follows:
1.
We are married spouses or registered domestic partners.
2.
We declare that we are joint owners of the following property located in the
City of ____________________________________, State of California, commonly
known as (street address): ________________________________________, and more
particularly described as follows (legal description):
________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
3.
We claim the property and the dwelling thereon as a homestead on behalf of both
of us.
4.
This property is our principal dwelling and we actually reside on this property
on the date that this Homestead Declaration is recorded.
5.
We own the following interest in the above declared homestead:
_______________________.
The facts as stated in this Homestead
Declaration are known to be true as of our own personal knowledge.
Date: __________________ _____________________________________________
(Signature
of declarant)
_____________________________________________
Print
Name
Date: __________________ _____________________________________________
(Signature
of declarant)
_____________________________________________
Print
Name
|
Recording
requested by (name): ____________________________________________ When
recorded mail to and
mail tax statements to: ____________________________________________ ____________________________________________ ____________________________________________ ____________________________________________ |
Recorder’s Use Only |
|
|
|
Assessor’s Parcel No. (APN):
________________________________ |
Declaration of Exemption From Gov’t
Code § 27388.1 Fee Transfer is exempt from fee per GC § 27388.1(a)(2): recorded concurrently “in connection
with” transfer subject to Documentary Transfer Tax recorded concurrently “in connection with” a transfer of
residential dwelling to an owner-occupier Transfer is
exempt from fee per GC 27388.1(a)(1):
Fee cap of
$225.00 reached Not related to
real property |
||
I, __________________________________________________,
do hereby certify and declare as follows:
1. I hereby claim as a declared homestead
the premises located in the City of ____________________________________, State
of California, commonly known as (street address):
________________________________________, and more particularly described as
follows (legal description):
________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
2. I am the declared homestead owner of the
above-declared homestead.
3. I own the following interest in the
above-declared homestead: __________________________
4. The above-declared homestead is my principal
dwelling. I am currently residing on that declared homestead.
The facts as stated in this Homestead
Declaration are known to be true as of my own personal knowledge.
Date: __________________ _____________________________________________
(Signature of declarant)
_____________________________________________
Print
Name
