Homestead exemption
Source:
Section 18.395 — Homestead exemption, https://www.oregonlegislature.gov/bills_laws/ors/ors018.html.
Notes of Decisions
In general
Statutory homestead exemption did not apply where execution sale was on a judgment rendered in partition proceedings concerning land for which exemption was sought. Dressler v. Dressler, 261 Or 265, 493 P2d 1053 (1972)
Judgment lien attaches to excess value of property over homestead exemption granted in bankruptcy discharge. Mendenhall v. NW Credit Adjusters, Inc., 263 Or 104, 500 P2d 702 (1972)
Order of referee in bankruptcy of homestead exemption is not res judicata with reference to existence of lienable value above the exempt homestead; overruling Boyd v. Oregon, 249 Or 513, 439 P2d 862 (1968). Mendenhall v. NW Credit Adjusters, Inc., 263 Or 104, 500 P2d 702 (1972)
In a suit brought by a trustee in bankruptcy to set aside a conveyance for being in fraud of creditors, the grantors may claim the property was exempt as a homestead even though the exemption was not claimed in the bankruptcy petition. Garrison v. Seiber, 266 Or 368, 513 P2d 1180 (1973)
Bankruptcy discharges personal debts of bankrupt person and therefore does not remove lien on real property owned by bankrupt person. Everett v. Pape Bros., Inc., 269 Or 575, 525 P2d 996 (1974)
The value of the homestead exemption should be measured as of the time of sale or execution. Wilkinson v. Carpenter, 277 Or 557, 561 P2d 607 (1977)
This section applies to a levy of execution by a creditor so as to limit the creditor’s leviable interest following the transfer of the property and to a discharge of the debtor in bankruptcy, but not to discharge proceedings commenced under [former] ORS 23.280. Credit Service Co. v. Cameron, 41 Or App 57, 597 P2d 363 (1979)
Bankruptcy estate may not deduct homestead exemption paid to debtor when reporting taxable gain realized from sale of property. In re Sturgill, 217 B.R. 291 (Bkrtcy. D. Or. 1998)
Debtor’s homestead exemption may be applied to property located outside state. In re Stratton, 269 B.R. 716 (Bkrtcy. D. Or. 2001)
Lien created by property division judgment issued under ORS 107.105 is exception to homestead exemption from sale on execution. Maresh and Maresh, 190 Or App 228, 78 P3d 157 (2003), Sup Ct review denied
Homestead exemption claimed by person owning possessory interest in leased property where person resides applies to prepaid rents and security deposits held by landlord. In re Casserino, 290 B.R. 735 (9th Cir. BAP 2003)
Where debtor owns homestead on date bankruptcy petition is filed, proceeds from subsequent sale retain exemption from application toward prepetition debts regardless of whether debtor intends to reinvest proceeds in new homestead. In re Lane, 364 B.R. 760 (Bkrtcy. D. Or. 2007)
Monthly rent is exempt reinvestment in homestead. In re Wynn, 369 B.R. 605 (Bkrtcy. D. Or. 2007)
Persons entitled to claim
The grantee of the homestead owner is entitled to raise the homestead exemption as a defense. Smith v. Popham, 266 Or 625, 513 P2d 1172 (1973)
Judgment lien against family residence awarded husband in divorce decree was not sufficient ownership to constitute homestead under this section. In re White, 727 F2d 884 (1984)
Where real property was not homestead at time of plaintiffs’ petition for sale at execution or at time of defendants’ notice of intent to discharge property from plaintiffs’ judgment lien, defendants were not entitled to protections provided for homestead. Bourgeois v. Grenfell, 72 Or App 415, 695 P2d 974 (1985), Sup Ct review denied
Person owning possessory interest in leased property where person resides may claim homestead exemption to extent of interest. In re Casserino, 290 B.R. 735 (9th Cir. BAP 2003)
Amount of exemption
Value of the land claimed is determined at the time it is sold on execution. Smith v. Popham, 266 Or 625, 513 P2d 1172 (1973)
In determining whether or not a purchaser from the judgment debtor has sufficient equity in the homestead property to allow the judgment creditor to levy against the homestead, court should not count increase in the purchaser’s equity due solely to purchaser’s discharge of a senior lien. W. J. Seufert Land Co. v. Greenfield, 273 Or 408, 541 P2d 814 (1975)
Where $12,000 exemption, plus costs of sale, exceeded defendants’ equity in property, all of sale proceeds were exempt from judgment lien. State ex rel Nilsen v. Jones, 33 Or App 581, 577 P2d 541 (1978)
Where divorcing couple files joint petition for bankruptcy and claims single joint exemption, couple may choose amount of joint exemption allocated to each party under dissolution judgment. In re Wynn, 369 B.R. 605 (Bkrtcy. D. Or. 2007)
Law Review Citations
8 WLJ 327-340 (1972); 55 OLR 233-235 (1976); 65 OLR 481 (1986)
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