Colorado § 38-41-212 - Waiver.

§ 38-41-212. Waiver.

(1) Any purchase by an encumbrancer, lienholder, or any other person or any redemption by a junior lienholder pursuant to a foreclosure sale conducted by any court, sheriff, public trustee, or other public official pursuant to a mortgage, deed of trust, or other lien which contains a waiver of homestead rights in the encumbered property shall be subject to such waiver of homestead rights, and the purchaser of or person redeeming the property shall be entitled to acquire said property free of any homestead rights and without compliance with the requirements of section 38-41-206.

(2) Any purchase by an encumbrancer, lienholder, or any other person or any redemption by a junior lienholder pursuant to a foreclosure sale conducted by any court, sheriff, public trustee, or other public official pursuant to a mortgage, deed of trust, or other lien, except a tax sale pursuant to article 11 of title 39, C.R.S., which does not contain a waiver of homestead rights in the encumbered property shall be subject to such homestead rights.

Source: L. 83: Entire section added, p. 1479, § 1, effective June 15.

ANNOTATION

Law reviews. For article, "The Statutory Right of Redemption from Foreclosures", see 13 Colo. Law. 793 (1984). For article, "Homestead and Bankruptcy in Colorado and Elsewhere", see 56 U. Colo. L. Rev. 175 (1985). For article, "Partial Redemption In Colorado Foreclosures", see 67 Den. U.L. Rev. 61 (1990). For article, "Strategic Options for Overly Encumbered Real Property (Friendly Foreclosures)", see 46 Colo. Law. 31 (July 2017).

Purpose of section. By enacting this section, the general assembly extended a senior lienholder's waiver of homestead rights to junior lienholders. Janicek v. Obsideo, LLC, 271 P.3d 1133 (Colo. App. 2011).

A contractual waiver of homestead rights in a deed of trust constitutes a waiver as to all junior lienholders, and any junior lienholder redeeming the property takes it free and clear of any homestead rights. Janicek v. Obsideo, LLC, 271 P.3d 1133 (Colo. App. 2011).

Because homeowners waived their homestead rights in the first deed of trust, any junior lienholder redeeming pursuant to foreclosure of the first deed of trust is entitled to take the property free of any homestead rights. Janicek v. Obsideo, LLC, 271 P.3d 1133 (Colo. App. 2011).

Mineral Interests

ARTICLE 42

Oil, Gas, and Mining Leases

38-42-101. Lease with option to purchase, title requirements.

38-42-102. Option void, when.

38-42-103. Title form.

38-42-104. Lease surrendered, when.

38-42-105. Actions for surrender of lease - damages.

38-42-106. Record of lease no longer notice unless affidavit recorded.