Most residents of Texas are familiar with some basic information regarding Texas homesteads such as property tax exemptions and a vague sense that homestead property has some protection from creditors. Article 16, Sections 50–52 of the Texas Constitution provides all Texans with homestead rights, and this article discuss homestead law and the rights associated with homesteads.
The homestead right is the constitutional protection from having homestead property sold to satisfy a debt. This right is not absolute. A creditor may force a sale of homestead property for various reasons, most notably for failure to pay a mortgage on the property and failure to pay property taxes. See Tex. Const. art. XVI, § 50; see Tex. Prop. Code § 41.001. However, a forced sale of a homestead cannot occur to satisfy credit card debt or many other types of personal debt.
Homesteads can be either urban or rural. Urban homesteads may be up to ten acres of land. Id. at § 41.002(a). A property is in an urban area if it is in city limits, “or its extraterritorial jurisdiction or a platted subdivision”, and it has police and fire protection, and has three of the following services provided by the city: “(a) electric; (b) natural gas; (c) sewer; (d) storm sewer; and (e) water.” Id. at § 41.002(c). Rural homesteads may consist of up to 200 acres for a family, and up to 100 acres for a single person. Id. at § 41.002(b).
A person or family may only have one homestead property, and it must be used as a “home, or as both an urban home and a place to exercise a calling or business[.]” Tex. Const. art. XVI, § 51; see also Tex. Prop. Code § 41.002. If a judgment creditor finds non-homestead property, the creditor may force the sale of that non-homestead property.
However, should a judgment creditor file an abstract in the county where an individual’s homestead is located, the homestead owner can have the lien released from the property because Texas law expressly prohibits judgment liens from attaching to homestead property. Fin. Grp., Inc. v. Synnott, 300 S.W.3d 316, 320 (Tex. App.—Austin 2009, no pet.). Most judgment creditors will sign a partial release for the homestead; for those who do not, a homestead owner may release the lien by following statutory provisions listed in the Texas Property Code. Additionally, there is a process in the family code for releasing child support liens against the homestead.
Lastly, our homestead rights allow spouses of a decedent to remain in the homestead property after the death of a decedent. Tex. Const. art. XVI, § 52. Essentially the surviving spouse, even if title is not vested in the spouse, cannot be made to vacate the homestead property by the heirs of the decedent. Id. This survivor homestead right is for the life of the spouse or until the spouse decides to voluntarily relinquish the homestead protections in the property. Id.
Homestead law in Texas can be quite complex, and it is highly recommended that you contact a competent real estate attorney should you have questions or concerns concerning homestead rights in Texas.
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