[WSBARP] spouse "homestead" and tenancy rights in other spouse's separate property residence

[John McCrady]

In my opinion that case, if applied too broadly, gives rise to undesired results.  Another way of saying:  "Poorly reasoned"
I prefer, at least for title insurance purposes, to limit its effects to the facts of that case.   I think before a spouse waives or relinquishes homestead rights there needs to be an express intention to do so.
We continue to require a spouse to execute any encumbrance or conveyance of the family home,
John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98466
253-476-5721

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Friday, November 13, 2015 3:05 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] spouse "homestead" and tenancy rights in other spouse's separate property residence

John--I know! That was the case law that gave me pause. Other case law makes clear that a person has to have a "legal or equitable interest" in a property in order to have a homestead. Where the house is separate property of one spouse (assume it is for these purposes, absolutely SP with no CP equitable rights), is it possible for non-owning spouse to have a homestead?

And, if spouse has a tenancy at will, is that a sufficient interest to allow acquisition of a homestead in that tenancy?

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040



From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John McCrady
Sent: Friday, November 13, 2015 2:46 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] spouse "homestead" and tenancy rights in other spouse's separate property residence

Generally, a married person will automatically have a homestead in that person's residence, whether the residence is community property or the separate property of either spouse.  See RCW 6.13.020 (from memory!)

But you should consider the holding in Snohomish County v. Hawkins, 89 P.3d 713, 121 Wn.App. 505 (Wash.App. Div. 1 2004) dealing with the effect of the quit claim deed.



John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98466
253-476-5721

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Friday, November 13, 2015 11:53 AM
To: WSBA Real Property listserve (wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>) <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] spouse "homestead" and tenancy rights in other spouse's separate property residence

C and D are married, and live in a house that C acquired prior to marriage. D additionally has executed a quit claim deed confirming that the house is C's separate property.

1. Can D claim a homestead in the house? No ownership interest, but it is D's place of residence just as much as it is C's.

2. What is D's legal status as an occupant, anyway? Tenant at will? If D has any legal status as a tenant at all, does that sustain the right to homestead?

Any legal and equitable interest in a property, including a lease, is sufficient to create a homestead. Downey v. Wilber, 117 Wn. 660, 202 P. 256 (1921). But see Northwest Cascade, Inc. v. Unique Construction, Inc., 187 Wn.App. 685, 351 P.3d 172 (Div. 2, May 19, 2015), holding that "mere occupancy and possession" of a property is not enough interest to claim as a homestead, citing see SSG Corp. v. Cunningham, 74 Wn.App. 708, 714, 875 P.2d 16 (1994).

Northwest Cascade and SSG Corp. both appear to involve bad actors who were blurring the line between their personal assets and assets of a wholly-owned corporation. In the case of an innocent spouse, with that spouse be considered a tenant at will, and would that be a sufficient equitable interest to support claiming a homestead?

Sincerely,

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040

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