The Big Question
Can your homestead in Texas be confiscated by a creditor?
After a verdict is rendered by a judge or jury in a civil court case, a final judgment is entered in favor of the creditor. The court then orders the debtor to pay the creditor. If the debtor doesn’t pay, then the creditor files a lien, which allows him or her to be paid by the proceeds of the sale of the debtor’s property. Does this include the debtor’s homestead in Texas?
The Good News
Texas law considers a homestead to be exempt real property, so The Texas Property Code Sec. 52.0012 attempts to address these issues faced by homeowners. It allows a homeowner to self-release a judgment lien against his or her homestead by following the exact procedure outlined in the law, thus protecting your Texas homestead. (The most current modification of this law went into effect on September 1, 2021.)
A judgment lien, therefore, is not valid against a debtor’s legal homestead in Texas. While this is of great benefit to Texas homeowners, there can be issues for the homeowner if a lien is filed by the judgment creditor.
The Next Step
After consulting with your attorney, you may wish to contact the creditor or his/her attorney to clarify that the lien has been filed against your homestead. You or your attorney can formally demand that the creditor execute a release of lien or just defer to the self-release. This creates a liability for the creditor; and if this is understood, perhaps the creditor will cooperate. However, often the creditor is not willing to cooperate. This is the reasoning behind Section 52.0012.
The Procedures
If the creditor does not provide a partial release of the lien against the homestead, Sec. 52.0012 section (b) explains that a judgment debtor may file a Homestead Affidavit together with a Certificate of Mailing (both in the forms required under the statute) in the county in which his or her homestead is located. In addition, notice must be given to the judgment creditor of the filing. The law is very specific about the procedures that must be followed, so we recommend that you consult with your real estate attorney in order to make sure that you follow the correct process to the letter.
If this statutory procedure is followed exactly as required, the judgment lien will be released from the owner’s homestead; however, always check with the title company that is handling the closing in order to make sure their specific underwriting requirements are met.
Gaylene Rogers Lonergan
Real Estate Law Attorney
Lonergan Law Firm PLLC and title closing office
12801 North Central Expressway, Suite 150, Dallas, Texas 75243
214-503-7509 | lonerganlaw.com | grogers@lonerganlaw.com
© Gaylene Rogers Lonergan and Lonergan Law Firm, PLLC, 2024. All rights reserved. This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. The Lonergan Law Firm, PLLC, will represent you only after being retained and that agreement is made in writing.
