Homestead Legislation in California

of judgment was recorded. Thus, the recording requirement is necessary if the homestead law is going to protect homesteads from judgment liens and title to homesteads is to be determinable from county records; on the other hand, the present effect of the recording requirement is to deny the protection of the homestead laws to those who are not aware of them. This conflict could be resolved in a number of ways. The simplest solution would be to amend the homestead law so that it would allow a debtor to claim a homestead after an abstract of judgment is recorded, but before the execution sale, by recording a declaration of homestead. The claim of homestead would then dissolve any preexisting judgment liens to the extent of the exemption.2 3 Any writ of execution levied against a dwelling house would be required to be accompanied by a notice (in both English and Spanish) to the debtor of the right to claim the homestead under this scheme. 24 The debtor could record a declaration of homestead and discharge pre-existing judgment liens as long as the debtor resided on the property; however, if the debtor transferred the property before claiming the homestead, any pre-existing judgment liens could be enforced against the transferee. 25 Alternatively, the homestead law could be changed so that the homestead was exempt from execution, but not from judgment liens that would attach to the homestead and would be satisfied whenever the property was transferred by the debtor. 26 This would seriously impair the protection afforded by homestead laws and would produce hardships for debtors who change residences frequently. Civil Code Sections 1257 and 1265a of the present homestead law protect the proceeds of a sale of a homestead from execution for six months after the sale. In addition, under Section 1265a a debtor may select another homestead within six months after a sale of an earlier homestead and the later homestead is treated as dating from the time of recordation of the earlier homestead. These provisions reflect the sound legislative policy of permitting a debtor to change residences in our highly mobile society without losing the protection of the homestead laws. It would be contrary to this policy to allow a judgment lien to attach to the home23. The claiming of a homestead after execution is permitted in a number of states. E.g., OR. REV. STAT. §23.270 (1975); UTAH CODE ANN. §28-1-10 (1953); Wis. STAT. ANN. §815.21 (West 1977). See also text accompanying notes 153-155 infra. 24. The notice required should be similar to that provided for in Section 690.31 of the California Code of Civil Procedure. 25. Oregon and Wisconsin have procedures for a homestead claimant to discharge judgment liens on the homestead if its value is less than the exempt amount. See OR. REV. STAT. §23.280 (1975); Wis. STAT. ANN. §815.20(2) (West 1977). By following these procedures, a homestead claimant can insure that a judgment lienholder cannot levy on the homestead in the future when its value may rise above the homestead exemption. 26. This is analogous to California Code of Civil Procedure Section 674(c) which now provides that a dwelling house that is exempt from execution under California Code of Civil Procedure Section 690.31 is nevertheless subject to judgment liens. 1978 / Homestead Legislation in California stead, even if the homestead were exempt from execution as long as the debtor owned it. A third alternative would be to provide that a claim of a homeowner's or veteran's property tax exemption27 would also effect a selection of a homestead. 28 The claims of homeowner's or veteran's exemptions are public records and are therefore easily accessible to a title searcher. The standards for entitlement to a homeowner's or veteran's exemption are similar to those of a homestead; both require the claimant to reside on the claimed prop-