An email posed an unusual question about homestead protection of contingent improved residential properties. The writer owned land which initially consisted of separate lots but which he joined legally into a single parcel. On each side of the parcel he built two separated residential buildings. Assume that the lots could be legally separated back to separate parcels. The writer states that he uses both houses as a principal residence although he did not say whether either house was a primary residence. I inferred that both structures were used by the writer and his family for day to day family life. The question is whether homestead protection would apply to both buildings.
In most cases where a debtor owns adjoining buildings one of the buildings is the debtor’s residence and the other is a rental or other investment property. A debtor can only have one house as his primary residence. Houses that are physically connected, even nominally connected by, for example, a fence, are usually considered to be a single connected structure. On the other hand, a debtor who has buildings on a single lot which are all used for residential purposes by the debtor’s family would usually constitute a single homestead.
In this instance, I believe the facts on balance would support homestead protection for both of the buildings on the writer’s property. Although the two houses are detached, both buildings are on what is now a single residential lot, and both buildings together constitute the primary residence of the writer and his family. Homestead protection is generously construed in favor of the homeowner; I think in this unique fact situation homestead should apply.
About the Author
Jon Alper is an expert in asset protection planning for individuals and small businesses.
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