It’s Homestead, Sweet Homestead in the State of Texas. Our Texas constitution can help prevent Texans from becoming homeless if they are in a financial bind. Texas homestead protection laws guard your homestead against foreclosure by judgment creditors such as credit card holders, bill collectors, or winning parties in lawsuits.
This special protection from creditors only extends to the homestead. There are a lot of legal definitions of a Texas homestead, but basically, it is a primary residence owned and lived in by a family or single adult. You can only have one homestead entitled to be exempt from seizure by claims of creditors. If the property is not a homestead, the creditor has the right to go after that property to satisfy a lien.
To obtain a lien against a piece of property owned by a debtor, the creditor obtains a judgment in a court of law. They file a lien notice in the form of an Abstract of Judgement in the real property records of every county that they believe the debtor may own property.
Once that Abstract of Judgment is filed, it attaches to all property the debtor owns in that county except their homestead. The key to this protection is that the property is currently and continues to be used as the homestead of the debtor. If the debtor ever abandons that property as their homestead, those liens may immediately attach to the property.
Texas homestead laws won’t keep a mortgage holder or taxing authority from forcing the sale of a home. Homesteads are foreclosed on regularly all over Texas. You have to ‘pay to stay’ when it comes to your mortgage lender, tax debts, and the IRS. Texas courts also don’t usually give homestead protection to protect criminal conduct.
All kinds of liens can attach to a property that is non-homestead. Title companies frequently find liens and judgments against homestead properties and their owners. The title company is entitled to require a Partial Release of Lien from the creditor. A Partial Release of Lien releases the homestead property only and not the debt obligations of the debtor.
This Partial Release of Lien requires the creditor to acknowledge the homestead rights of the owner. Texas law requires the creditor to sign a Partial Release of Lien against the property if the property is shown to be a homestead. The creditor, not the title company, must waive this judgment against the homestead.
Creditors may require proof of homestead by the owner. This could include:
- An affidavit completely by the debtor claiming the property as their homestead.
- A copy of the tax certificate showing the debtor has filed a homestead exception on the property.
- Two affidavits from disinterested parties who have personal knowledge that the debtor has lived in the property and continues to live in the property as their homestead.
- Even a physical inspection of the property by the escrow agent to confirm that it appears the debtor is living in the property.
It may take 10 to 14 days to obtain a Partial Release of Lien from a creditor once it is proven that the property is the debtor’s homestead. Once the title company has the necessary affidavits and the creditor’s signed release, they can clear that particular lien from the homestead for that transaction.
The opinions expressed are of the individual author for informational purposes only and not for the purpose of providing legal advice. Contact an attorney to obtain advice for any particular issue or problem.
Lydia Blair (formerly Lydia Player) was a successful Realtor for 10 years before jumping to the title side of the business in 2015. Prior to selling real estate, she bought, remodeled and sold homes (before house flipping was an expression). She’s been through the real estate closing process countless times as either a buyer, a seller, a Realtor, and an Escrow Officer. As an Escrow Officer for Allegiance Title at Preston Center, she likes solving problems and cutting through red tape. The most fun part of her job is handing people keys or a check.