What Comes First: The Lien or the Homestead?

Foreclosing on Judgement Lien Texas

Texas is famous for having some of the strongest protections for homestead property in the country. The state is often described as a debtor’s haven where individuals with numerous judgements can live without fear of foreclosure in homes worth millions of dollars. With very limited exceptions such as purchase money liens and mechanic’s liens, the homestead is almost untouchable.

Despite the well-known protections in place for the Texas homestead, questions about subjecting the homestead to liens sometimes arise. Lawyers at our firm recently pondered whether a judgement lien that existed prior to the acquisition of a homestead property could possibly attach. For example, a person might have a credit card judgement abstracted and recorded in the real property records of a county where that person later acquires a homestead property. Would that lien attach because the lien was first in time and therefore prior to the homestead springing into existence at the moment of purchase?

It turns out that the answer is clearly and unequivocally no, the lien does not attach to the homestead. Freiberg v. Walzem, 85 Tex. 264, 266, 20 S.W. 60, 61 (1892). In Freiberg v. Walzem, the plaintiff sought to foreclose a lien that predated the acquisition of the defendant’s homestead. The court held that “as soon as appellee obtained the title to the property in question, it became immediately impressed with the homestead character, and therefore the judgement lien could not and did not attach to it.” Id.

In 1892, the Supreme Court of Texas effectively held that the homestead comes first, even when the lien comes first. However, we are still waiting on the court to weigh in on the age-old question of the chicken or the egg.

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