Legal Question in Real Estate Law in California

Re: Homestead Act California

For years homestead protection in California has been automatic. If you have the forms, read them carefully to see why they need to be filed; if they do not say why, call up the issuing governmental agency and ask why. The answer should be they do not need to be filed.

Re: Homestead Act California

The previous answer disregards the fact that there are two kinds of homestead exemption in California, with somewhat but not completely overlapping protection - and neither protects a homeowner completely!

They are the so-called "automatic homestead," which is simply a law that says a creditor cannot seize certain parts of a homeowner's equity; and the so-called "declared homestead" which adds some further protection, but requires that the homeowner file a declaration of homestead containing certain information with the county recorder's office.

There is NO OFFICIAL FORM for filing a declaration of homestead. The paper to be recorded can be done more or less free-form by the homeowner using a typewriter or word processor, or even in handwriting as far as I know.

Some pre-printed forms are also available from various vendors. I understand from receiving questions like yours in the past, that these form sellers have both a single-person and a married couple version. Unfortunately, the form producers don't also produce instructions that clarify when each should be used.

Code of Civil Procedure section 704.930 specifies what a homestead declaration must contain. At subsection (a)(1), it says "....a husband and wife both may be named as declared homestead owners in the same homestead declaration if each owns an interest in the dwelling selected as the declared homestead."

Based on this, co-ownership rather than marital status seems to be controlling as to the contents of the declaration. Therefore, my best guess without seeing this vendor's actual forms would be that the one for single persons would be more appropriate.