Colorado § 38-41-202 - Homestead to be created automatically in certain cases - filing of statement required in other cases.

§ 38-41-202. Homestead to be created automatically in certain cases - filing of statement required in other cases.

(1) The homestead exemptions described in section 38-41-201 shall be deemed created and may be claimed if the occupancy requirement of section 38-41-203 and the requirement of section 38-41-205 relating to the type of property which may be homesteaded are met.

(2) (a) A homestead exemption granted under the provisions of this part 2 shall not be deemed created and may not be claimed if the debt, contract, or civil obligation which is the basis for the execution and attachment was entered into or incurred prior to July 1, 1975, unless the owner of the property (householder) records in the office of the county clerk and recorder of the county where the property is situate an instrument in writing describing such property, setting forth the nature and source of the owner's interest therein, and stating that the owner is homesteading such property, which instrument may be acknowledged as provided by law.

(b) The spouse of the owner of the property may homestead the property in the manner provided in paragraph (a) of this subsection (2) with the same effect as if the owner had done so.

(3) Subject to the provisions of subsection (4) of this section, property homesteaded solely by operation of the automatic provisions of subsection (1) of this section may be conveyed or encumbered by the owner of the property free and clear of all homestead rights, and no signature other than that of the owner shall be required. The owner of the property shall be determined without regard to the ownership of any homestead rights.

(4) If the owner of the property (householder) or the spouse of the owner records in the office of the county clerk and recorder of the county where the property is situated an instrument in writing describing the property, setting forth the name of the owner of the property and the nature and source of the owner's interest in the property, and stating that the owner or the owner's spouse is homesteading the property (which instrument may be acknowledged as provided by law), then the signature of both spouses to convey or encumber the property is required.

Source: R.S. p. 385, § 58. G.L. § 1344. G.S. § 1632. L. 03: p. 246, § 1. R.S. 08: § 2951. L. 11: p. 452, § 1. C.L. § 5925. CSA: C. 93, § 24. L. 53: p. 411, § 1. CRS 53: § 77-3-2. C.R.S. 1963: § 77-3-2. L. 73: p. 1157, § 3. L. 75: Entire section R&RE, p. 1444, § 2, effective July 14. L. 77: (3) and (4) added, p. 1719, § 2, effective May 27. L. 2015: (2)(b) and (4) amended, (HB 15-1069), ch. 27, p. 67, § 1, effective August 5.

ANNOTATION

I. General Consideration.

II. Title or Interest in Property.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Executions and Levies on Tangible Property", see 27 Dicta 143 (1950). For note, "Colorado Homestead Now Assertable Against Heirs", see 25 Rocky Mt. L. Rev. 84 (1952). For article, "Additional Real Estate Standards", see 30 Dicta 431 (1953). 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 note, "Rural Poverty and the Law in Southern Colorado", see 47 Den. L.J. 82 (1970). For article, "Signatures on Documents Affecting Title to Colorado Real Property — Part I", see 12 Colo. Law. 61 (1983). For article, "Homestead and Bankruptcy in Colorado and Elsewhere", see 56 U. Colo. L. Rev. 175 (1985). For article, "Colorado Homestead Statutes: Exemption or Allowance?", see 17 Colo. Law. 827 (1988). For article, "You've Got an Amicus Curiae in Me (Or Two)", see 51 Colo. Law. 30 (Mar. 2022).

Valid exemption can be created only by the method provided by this section. Johnson v. Mtn. Sav. & Loan Ass'n, 162 Colo. 474, 426 P.2d 962 (1967).

Effect of noncompliance with section. A complaint is fatally defective if it does not show a compliance with this section. Goodwin v. Colo. Mtg. Inv. Co., 110 U.S. 1 (1884); Crawford v. Felkey, 73 Colo. 444, 216 P. 520 (1923).

Right to occupy the homestead for homestead purposes is an inseparable part of the exemption, because its purpose is to protect such occupancy and because when the occupancy is voluntarily discontinued the exemption ceases. In re Nye, 133 F. 33 (8th Cir. 1904).

Property remains exempt until, by a judicial sale had at the instance of a creditor, more than the prescribed amount with costs is realized therefrom; then the excess is to be applied to the demand of the creditor and the prescribed amount is to be paid to the debtor, free of charge or expense, to enable him to acquire another homestead. In re Nye, 133 F. 33 (8th Cir. 1904).

Creditor is charged with knowledge of homestead claims through recording statute, and his lack of knowledge through inadvertence would be immaterial. Am. Heritage Bank & Trust Co. v. Trees, 35 Colo. App. 147, 532 P.2d 380 (1974).

Homestead entry on deed technically void is valid. The uniform holding that a homestead entry made upon a deed confessedly void (because executed in fraud of creditors) is sufficient to secure the exemption, would seem to justify the conclusion that an entry upon some other instrument, in form evidence of title, legal or equitable, is also sufficient, although for reasons not appearing upon the face of the instrument, the court might, when properly raised upon trial, hold that said instrument was, in law, something different than it appeared to be, or, for some reasons, was defective or void. Brooks v. Black, 22 Colo. App. 49, 123 P. 131 (1912).

Homestead entry adjudged void cannot be collaterally assailed. Where a homestead entry has been canceled and adjudged null and void by a decree of the district court, that decree cannot be collaterally assailed. Smith v. Smith, 76 Colo. 119, 230 P. 597 (1924).

Effect of void deed executed by one joint tenant. Because a deed affecting homesteaded property executed by one of two joint tenants is void, that deed may not be utilized to defeat the homestead act's policy of protecting both owners of homesteaded property from disenfranchisement by the unilateral conduct of one joint tenant. Knoche v. Morgan, 664 P.2d 258 (Colo. App. 1983).

Formerly, this section allowed creation of exemption by marginal entry on the recorded deed of the word "homestead". Johnson v. Mtn. Sav. & Loan Ass'n, 162 Colo. 474, 426 P.2d 962 (1967).

For cases dealing with marginal entry method of creating homestead exemption. See Drake v. Root, 2 Colo. 685 (1875); Wells v. Caywood, 3 Colo. 487 (1877); Goodwin v. Colo. Mtg. Inv. Co., 110 U.S. 1 (1884); Barnett v. Knight, 7 Colo. 365, 3 P. 747 (1884); Jones v. Olson, 17 Colo. App. 144, 67 P. 349 (1891); Leppel v. Kus, 38 Colo. 292, 88 P. 448 (1907); Runyan v. Snyder, 45 Colo. 156, 100 P. 420 (1909); White v. Hartman, 26 Colo. App. 475, 145 P. 716 (1914); Jasper v. Bicknell, 68 Colo. 308, 191 P. 115 (1920); Bean v. Eves, 92 Colo. 339, 20 P.2d 544 (1933); Farley v. Harvey, 93 Colo. 105, 25 P.2d 185 (1933); Howell v. Burch Whse. & Transf. Co., 100 Colo. 247, 67 P.2d 73 (1937).

Liens used to calculate exemption. In determining which liens will be used to calculate a homestead exemption, the court uses only those liens or encumbrances which existed prior to the placement of the homestead right on the property, which exemption is established automatically from the date of the property owner's occupancy (except with respect to liens which arose prior to July 1, 1975), and liens with respect to which the debtor has expressly waived the homestead exemption. Lincoln v. Cherry Creek Homeowners Ass'n, 30 B.R. 905 (Bankr. D. Colo. 1983).

Signatures of both joint tenants were not needed to encumber property that was homesteaded solely by operation of automatic provisions of statute, 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).

Filing a homestead claim was not a responsive pleading under C.R.C.P. 8(c). In the matter of Lombard, 739 F.2d 499 (10th Cir. 1984).

Applied in Barnett v. Knight, 7 Colo. 365, 3 P. 747 (1884); Copeland v. Colo. State Bank, 13 Colo. App. 489, 59 P. 70 (1899); Lock v. Berkins, 95 Colo. 135, 33 P.2d 393 (1934); Craig Lumber Co. v. Ramey, 108 Colo. 516, 119 P.2d 608 (1941); Wise v. Thomas, 117 Colo. 376, 188 P.2d 444 (1947); Baker v. Allen, 34 Colo. App. 363, 528 P.2d 922 (1974).

II. TITLE OR INTEREST IN PROPERTY.

Limitation is on value, not quantity of land. The homestead statutes do not fix the quantity of land which may be held as a homestead; it is the value and not the amount which is limited. Dallemand v. Mannon, 4 Colo. App. 262, 35 P. 679 (1894).

Ownership in fee is not essential. An equitable title, a lease for a term of years, or any title which may be the subject of levy and sale, may also be the subject of a homestead claim. Dallemand v. Mannon, 4 Colo. App. 262, 35 P. 679 (1894).

Any interest with possession is sufficient to support the homestead right. Brooks v. Black, 22 Colo. App. 49, 123 P. 131 (1912).

Possession under executory contract of purchase. One who holds possession of land under an executory contract of purchase may declare a valid homestead therein. Dallemand v. Mannon, 4 Colo. App. 262, 35 P. 679 (1894); Brooks v. Black, 22 Colo. App. 49, 123 P. 131 (1912).