Colorado § 38-35-118 - Homestead, how conveyed - claimant insane.

§ 38-35-118. Homestead, how conveyed - claimant insane.

(1) Except as provided in section 38-41-202 (3), to convey or encumber homesteaded property, the husband and wife, if the owner thereof is married, shall execute the conveyance or encumbrance. Such conveyance or encumbrance may be by one instrument or separate instruments which may be acknowledged in the manner provided by articles 30 to 44 of this title. A recital in any recorded conveyance or encumbrance of real property of the marital status of the party executing the same or that the property is or is not occupied as a home by the owner thereof or his family shall be prima facie evidence of the facts therein stated. If the owner of the homesteaded property and a person of the opposite sex, both bearing the same surname, join in the conveyance or encumbrance thereof, the identity of surnames shall be prima facie evidence that such parties are husband and wife for the purposes of this article.

(2) A homestead exemption may be released by an instrument in writing, signed by the party who could convey said property. A statement contained in a mortgage, deed of trust, or other instrument creating a lien waiving or releasing the homestead shall be construed only as a subordination of the homestead to such mortgage, deed of trust, or other lien.

(3) If the homestead is claimed by a person who at the time of conveyance or encumbrance thereof is insane or mentally incompetent and for whose estate there is a conservator duly appointed by a court of competent jurisdiction as provided by the laws of Colorado, the court having jurisdiction of the estate of such insane or mentally incompetent person, wherever it appears to be in the best interests of the ward, may by order empower such conservator to convey or encumber the homestead of such insane or mentally incompetent person.

(4) If such insane or mentally incompetent person is married, the conservator of the estate of the insane or mentally incompetent spouse, when so authorized by court to convey or encumber the homestead of his ward, may do so by a single instrument in writing jointly executed by such conservator and the other spouse, not insane, or such conservator may convey or encumber such homestead of his ward by a separate instrument.

(5) In all cases wherein the court orders a conveyance or encumbrance of a homestead claimed by an insane or mentally incompetent person, the actual consideration for the conveyance or encumbrance of such homestead, whether in money or equivalent property, but not to exceed the sum of five thousand dollars in amount or value, shall be delivered to and accounted for by the conservator of the estate of such insane or mentally incompetent person and such funds or property coming into the possession of the conservator from such sources shall not be liable for the debts of the insane or mentally incompetent person.

Source: L. 27: p. 592, § 13. CSA: C. 40, § 119. L. 47: p. 359, § 1. L. 53: p. 414, § 7. CRS 53: § 118-6-18. C.R.S. 1963: § 118-6-18. L. 77: (1) amended, p. 1719, § 1, effective May 27.

Cross references: For homestead exemptions, see part 2 of article 41 of this title; for appointment of a conservator for a person under disability or a minor, see part 4 of article 14 of title 15.

ANNOTATION

Law reviews. For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 281 (1949). For note, "When is Homestead Title Marketable?", see 28 Dicta 415 (1951). For comment on the 1953 amendment, see 30 Dicta 192 (1953). For note, "The Homestead Rights of Minor Children in Solvent Estates", see 25 Rocky Mt. L. Rev. 370 (1953).

Signatures of both joint tenants were not needed to encumber property that was homesteaded solely by operation of automatic provisions of § 38-41-202, and either of two joint tenants could encumber or convey the interest that he owned upon his signature unless a written declaration of homestead rights was recorded. Comm. Factors of Denver v. Clarke & Waggener, 684 P.2d 261 (Colo. App. 1984).