Colorado § 38-41-203 - Exemption only while occupied.

§ 38-41-203. Exemption only while occupied.

Said property, when so homesteaded, shall only be exempt as provided in this part 2 while occupied as a home by the owner thereof or his family.

Source: R.S. p. 385, § 59. G.L. § 1345. G.S. § 1633. R.S. 08: § 2952. C.L. § 5926. CSA: C. 93, § 25. L. 53: p. 411, § 2. CRS 53: § 77-3-3. C.R.S. 1963: § 77-3-3.

ANNOTATION

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 note, "The Homestead Rights of Minor Children in Solvent Estates", see 25 Rocky Mt. L. Rev. 370 (1953).

Occupancy of premises required. Occupancy of the premises by one claiming a homestead exemption is a necessary requirement to enforce such a claim. Helkey v. Ashley, 113 Colo. 175, 155 P.2d 143 (1945).

Actual personal occupation at all times not required. This section cannot be construed as requiring an actual personal occupation at all times and under all circumstances, and it is intended that the place shall be the only home of the family, and shall not be abandoned and another occupied with the intention of making such change permanent. Pierson v. Truax, 15 Colo. 223, 25 P. 183 (1890).

Presumption of abandonment. The cessation of occupancy of a homestead may raise a presumption of abandonment. Monte Vista Bank & Trust Co. v. Savage, 75 Colo. 180, 225 P. 219 (1924).

Claimant has burden of overcoming a presumption of abandonment. Monte Vista Bank & Trust Co. v. Savage, 75 Colo. 180, 225 P. 219 (1924).

Vague intention to return insufficient to overcome presumption. A vague intention to return perhaps at some future time and reside there again will not preserve the claimant's home, because the intention which is sufficient to rebut the presumption of abandonment must be positive and certain, not conditional or indefinite. Monte Vista Bank & Trust Co. v. Savage, 75 Colo. 180, 225 P. 219 (1924).

Removal of family from homestead makes prima facie case of abandonment. To rebut this presumption, it must appear that the removal was temporary in its nature, made for a specific purpose, with the intention of reoccupying the premises. Monte Vista Bank & Trust Co. v. Savage, 75 Colo. 180, 225 P. 219 (1924); Reed v. State Sav. Bank, 93 Colo. 325, 25 P.2d 739 (1933).

Fact that debtors were not residing in the home on the bankruptcy petition date created a presumption of abandonment; however, debtors rebutted the presumption through testimony that their absence was temporary and made for the specific purposes of renovating the home and avoiding the proximity of debtor husband's former spouse. In re Patterson, 275 B.R. 578 (Bankr. D. Colo. 2002).

Lease of portion of estate not abandonment. The lease of a portion of the estate, or even of the whole of it, does not of itself work an abandonment of the homestead, because the question of abandonment is very largely one of intention. Dallemand v. Mannon, 4 Colo. App. 262, 35 P. 679 (1894).

When homestead terminates. The right to homestead terminates when the debtor ceases to be the head of a family, by death or permanent removal from the premises of all the dependent members, or by their reaching the age of majority. Monte Vista Bank & Trust Co. v. Savage, 75 Colo. 180, 225 P. 219 (1924).

This section ceases to apply when the owner dies and leaves no surviving spouse or minor child. Owner's family member who is neither the owner's surviving spouse nor minor child cannot claim the exemption. Welcome to Realty, LLC 401K PSP v. Wilson, 2024 COA 122, 564 P.3d 658.