The $45,000.00 homestead exemption is that my money even though the house is in foreclosure, if so, how do I apply for it?
Full Question:
Answer:
Effective May 14, 2007, the Colorado legislature revised Colorado Statutes Section 38-41-201 to increase the exemption available for homesteads from execution and attachment arising from any debt, contract, or civil obligation. The new limits for the homestead exemption are (i) $60,000 if the homestead is occupied as a home by an owner or an owner’s family, and (ii) $90,000 if the homestead is occupied as a home by an elderly (60 years or older) or disabled owner, an elderly or disabled spouse of an owner, or an elderly or disabled dependent of an owner. The homestead exemption attaches automatically upon occupancy of real property as a home by
the owner or the owner’s family.
The following are CO statutes:
38-41-201. Homestead exemption - definitions.
(1) Every homestead in the state of Colorado shall be exempt from execution and attachment arising from any debt, contract, or civil obligation not exceeding in actual cash value in excess of any liens or encumbrances on the homesteaded property in existence at the time of any levy of execution thereon:
(a) The sum of sixty thousand dollars if the homestead is occupied as a home by an owner thereof or an owner's family; or
(b) The sum of ninety thousand dollars if the homestead is occupied as a home by an elderly or disabled owner, an elderly or disabled spouse of an owner, or an elderly or disabled dependent of an owner.
(2) As used in this section, unless the context otherwise requires:
(a) "Disabled owner", "disabled spouse", or "disabled dependent" means an owner, spouse, or dependent who has a physical or mental impairment that is disabling and that, because of other factors such as age, training, experience, or social setting, substantially precludes the owner, spouse, or dependent from engaging in a useful occupation, as a homemaker, a wage earner, or a self-employed person in any employment that exists in the community and for which he or she has competence.
(b) "Elderly owner", "elderly spouse", or "elderly dependent" means an owner, spouse, or dependent who is sixty years of age or older.
38-41-202. Homestead to be created automatically in certain cases —
filing of statement required in other cases.
(1) The homestead exemptions described in section 38-41-201 shall be
deemed created and may be claimed if the occupancy requirement of section
38-41-203 and the requirement of section 38-41-205 relating to the type
of property which may be homesteaded are met.
(2)(a) A homestead exemption granted under the provisions of this part 2
shall not be deemed created and may not be claimed if the debt, contract,
or civil obligation which is the basis for the execution and attachment was
entered into or incurred prior to July 1, 1975, unless the owner of the
property (householder) records in the office of the county clerk and
recorder of the county where the property is situate an instrument in
writing describing such property, setting forth the nature and source of
the owner's interest therein, and stating that the owner is homesteading
such property, which instrument may be acknowledged as provided by law.
(b) The spouse of the owner of the property may homestead such property in
the manner provided in paragraph (a) of this subsection (2) with the same
effect as if the owner had done so.
(3) Subject to the provisions of subsection (4) of this section, property
homesteaded solely by operation of the automatic provisions of subsection
(1) of this section may be conveyed or encumbered by the owner of the
property free and clear of all homestead rights, and no signature other
than that of the owner shall be required. The owner of the property shall
be determined without regard to the ownership of any homestead rights.
(4) If the owner of the property (householder) or the spouse of such owner
records in the office of the county clerk and recorder of the county where
the property is situate an instrument in writing describing such property,
setting forth the nature and source of the owner's interest therein, and
stating that the owner or the owner's spouse is homesteading such property
(which instrument may be acknowledged as provided by law), then the
signature of both spouses to convey or encumber such property shall be
required.
See also the statute below which says the homestead exemption doesn't apply to a purchase money mortgage or vendor's lien:
The following is a CO statute:
38-41-207. Proceeds exempt - bona fide purchaser.
The proceeds from the exempt amount under this part 2, in the event the property is sold by the owner, or the proceeds from such sale under section 38-41-206 paid to the owner of the property or person entitled to the homestead shall be exempt from execution or attachment for a period of two years after such sale if the person entitled to such exemption keeps the exempted proceeds separate and apart from other moneys so that the same may be always identified. If the person receiving such proceeds uses said proceeds in the acquisition of other property for a home, there shall be carried over to the new property the same homestead exemption to which the owner was entitled on the property sold. Such homestead exemption shall not be valid as against one entitled to a vendor's lien or the holder of a purchase money mortgage against said new property.
Please see the information at the following links:
http://definitions.uslegal.com/h/homestead/
http://definitions.uslegal.com/h/homestead-waiver/
http://lawdigest.uslegal.com/real-estate-laws/homestead/
