2023 Wisconsin Statutes & Annotations › Chapter 815 - Executions. › 815.20 - Homestead exemption definition.

815.20
Homestead exemption definition.
(1)
An exempt homestead as defined in s. 990.01 (14) selected by a resident owner and occupied by him or her shall be exempt from execution, from the lien of every judgment, and from liability for the debts of the owner to the amount of $75,000, except mortgages, laborers', mechanics', and purchase money liens and taxes and except as otherwise provided. The exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale of the homestead, but shall extend to the proceeds derived from the sale to an amount not exceeding $75,000, while held, with the intention to procure another homestead with the proceeds, for 2 years. The exemption extends to land owned by husband and wife jointly or in common or as marital property, and each spouse may claim a homestead exemption of not more than $75,000. The exemption extends to the interest therein of tenants in common, having a homestead thereon with the consent of the cotenants, and to any estate less than a fee.
(2)
Any owner of an exempt homestead against whom a judgment has been rendered and entered in the judgment and lien docket, and any heir, devisee, or grantee of the owner, or any mortgagee of the homestead, may proceed under s. 806.04 for declaratory relief if the homestead is less than $75,000 in value and the owner of the judgment shall fail, for 10 days after demand, to execute a recordable release of the homestead from the judgment owner's judgment lien.
History:  1973 c. 168; Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.20; 1983 a. 186; 1985 a. 153; 1993 a. 486; 1995 a. 224; 2009 a. 80.
A defendant who has moved to Michigan intending to stay there loses the defendant's Wisconsin homestead exemption. A defendant cannot have an exemption in two states. Plan Credit Corp. v. Swinging Singles, Inc., 54 Wis. 2d 146, 194 N.W.2d 822 (1972).
A vendee in a land contract has an interest sufficient to sustain a homestead exemption. The holder of a judgment lien is subject to a mortgage dated after the judgment. A homestead exemption does not depend on a formal claim to it. Occupancy at the time a lien attaches is sufficient. Lueptow v. Guptill, 56 Wis. 2d 396, 202 N.W.2d 255 (1972).
Rental income from a rented portion of a homestead is exempt under the homestead exemption. Schwanz v. Teper, 66 Wis. 2d 157, 223 N.W.2d 896 (1974).
Property purchased by a debtor subsequent to the docketing of a judgment and immediately occupied as a homestead becomes exempt to the extent of the statutory protection. Northern State Bank v. Toal, 69 Wis. 2d 50, 230 N.W.2d 153 (1975).
The homestead exemption may arise in a partition action. Reckner v. Reckner, 105 Wis. 2d 425, 314 N.W.2d 159 (Ct. App. 1981).
This section is a statutory expression of a public policy embodied in article I, section 17, of the Wisconsin Constitution that creditors should not be permitted to deprive a debtor of the necessary comforts of life. The homestead exemption is interpreted broadly to protect the homeowner. Reckner v. Reckner, 105 Wis. 2d 425, 314 N.W.2d 159 (Ct. App. 1981).
Homestead rights are no greater than the underlying property rights when those property rights have been limited by the owners themselves. Master Lock Credit Union v. Rayford, 119 Wis. 2d 301, 349 N.W.2d 737 (Ct. App. 1984).
Owners who permanently remove themselves from a home that is for sale with the intent of using the proceeds to procure another home are entitled to a homestead exemption in the sale proceeds. Moore v. Krueger, 179 Wis. 2d 449, 507 N.W.2d 155 (Ct. App. 1993).
Because a judgment lien was subject to the homestead exemption while a federal tax lien was not, the operation of the homestead exemption effectively subordinated the otherwise superior judgment lien to the status of a junior lien, which was discharged by operation of federal law by the execution of the Internal Revenue Service's quitclaim deed after judicial sale. CVW, Ltd. v. Stress, 230 Wis. 2d 450, 602 N.W.2d 162 (Ct. App. 1999), 99-0252.
When equity in a homestead exceeds $40,000 [now $75,000], the homestead is partially exempt, and a docketed judgment is a lien upon the debtor's equity in excess of the $40,000 [now $75,000]. If a debtor has less than $40,000 [now $75,000] in equity, the homestead is fully exempt, and the debtor has no interest to which a judgment lien may attach. Accordingly a debtor-seller can give clear title to the purchaser of fully exempt property. Rumage v. Gullberg, 2000 WI 53, 235 Wis. 2d 279, 611 N.W.2d 458, 98-1276.
An in-court oral stipulation could create a mortgage interest in property, but under s. 706.02 (1) (f), a homestead conveyance must bear the conveyors' signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under sub. (1). Equitable Bank, S.S.B. v. Chabron, 2000 WI App 210, 238 Wis. 2d 708, 618 N.W.2d 262, 99-2639.
A homestead created and maintained with stolen or embezzled property, or by the wrongful appropriation of property rightly belonging to others, is not protected by the homestead exemption. Paulman v. Pemberton, 2001 WI App 164, 246 Wis. 2d 909, 633 N.W.2d 715, 98-3021.
To qualify for the homestead exemption in sub. (1), a debtor generally needs to own or lease property that the debtor in fact occupies as the debtor's homestead. However, sub. (1) carves out two distinct circumstances in which the homestead exemption is not impaired despite a lack of occupancy by the owner for some identified period of time: 1) a temporary removal exception, which involves an owner's intentionally transient absence from the homestead; and 2) the owner's sale of the homestead with intent to use the proceeds to obtain a new homestead. The combined result of these two exceptions to the general occupancy requirement is that the exemption on a homestead is lost—in statutory terms, it is “impaired"—when the debtor removes herself or himself from a homestead with no intent either to reoccupy or to sell the house and use the proceeds to procure another homestead. Anderson v. Anderson Tooling, Inc., 2021 WI App 39, 398 Wis. 2d 595, 961 N.W.2d 911, 20-0898.
To preserve the homestead exemption under sub. (1), a debtor is not required to intend to “permanently" reoccupy the homestead. In this case, the judgment debtors' temporary absences while actively looking for a potential homestead in Iowa to replace their Wisconsin homestead did not impair the exemption, even if they planned that their serial absences and reoccupancies of the Wisconsin property as their homestead would eventually end with the establishment of a new homestead, perhaps even in the near future. Anderson v. Anderson Tooling, Inc., 2021 WI App 39, 398 Wis. 2d 595, 961 N.W.2d 911, 20-0898.
Merely having a property right to what could become a new homestead if it were occupied as a homestead does not, on its own, lead to the establishment of a new homestead and the abandonment of an old one. Actual occupancy as a homestead is required. Anderson v. Anderson Tooling, Inc., 2021 WI App 39, 398 Wis. 2d 595, 961 N.W.2d 911, 20-0898.
A judgment debtor's assertion of a homestead exemption generally establishes a presumption that the property is homestead property. A judgment creditor may rebut that presumption by showing that the debtor claiming the exemption does not occupy the claimed homestead, including for the reason that the debtor has established a new homestead before having sold the homestead on which the debtor claims the exemption. When a debtor ceases to occupy the premises of the claimed homestead, it is the debtor's burden to show that the circumstances qualify for one of the two exceptions to impairment based on the debtor's absence from the homestead. Anderson v. Anderson Tooling, Inc., 2021 WI App 39, 398 Wis. 2d 595, 961 N.W.2d 911, 20-0898.
The homestead exemption is void under the supremacy clause of the U.S. Constitution to the extent that it impedes a federal court restitution order. United States v. Lampien, 89 F.3d 1316 (1996).
Establishment and Abandonment of a Wisconsin Homestead. Kreitler. 1973 WLR 876.
Judgment Lien Claimants' Rights Against Homestead Exemption Interests: An Equitable Distribution of Mortgage Foreclosure Sale Proceeds. Steinmetz. 1981 WLR 697.