Texas homestead: measured in acres, not dollars

Measured in acres and by use

Texas protects the homestead of a family or a single adult from forced sale, and the protection is written in two statutes that say the same thing from opposite sides.

The constitution protects the homestead from forced sale for the payment of all debts except the ones it lists, and the first two on that list are the purchase money and the taxes due, per Tex. Const. art. XVI, sec. 50(a)¹. Said from the creditor's side, Tex. Prop. Code 41.001(a)² makes a homestead exempt from seizure for the claims of creditors except for encumbrances properly fixed on it. Neither statute's list names a judgment debt.

So the lien a creditor records runs past the home. A recorded abstract of judgment attaches to the debtor's real property other than property exempt from seizure or forced sale under Chapter 41, the Texas Constitution, or any other law, under Tex. Prop. Code 52.001³. Chapter 41 is the homestead chapter. That abstract lien attaches to the debtor's other land and not to the home the debtor lives on.

Anybody looking for a dollar cap will not find one here. Both the constitution and the Property Code size the homestead in acres and by its use, and neither states a value; the acres come from Tex. Const. art. XVI, sec. 51⁴ and Tex. Prop. Code 41.002⁵. What dollar limit, if any, applies to the homestead's value is not a question these texts answer, and this page will not guess at it.

Renting the home out for a while does not forfeit the protection. Temporary renting of the homestead does not change its character when no other homestead has been acquired, under Tex. Const. art. XVI, sec. 51. And the money from a sale carries the protection for a time, because Tex. Prop. Code 41.001(c) keeps the claimant's proceeds of selling a homestead out of a creditor's reach for six months after the sale. Pretended sales with any condition of defeasance are void, per Tex. Const. art. XVI, sec. 50(c).

Urban and rural acres

The acreage limit splits on one line: whether the land is in town. Which side it falls on changes the number by a factor of twenty.

An urban homestead is not more than 10 acres, in one or more contiguous lots, with the improvements on them, used as a home or as both a home and a place to exercise a calling or business, under Tex. Prop. Code 41.002(a). For a rural homestead the figure is not more than 200 acres for a family, or 100 acres for a single adult not otherwise entitled to a homestead, in one or more parcels, with the improvements, under Tex. Prop. Code 41.002(b). Ten in town, two hundred outside it.

Location and city services draw the line between the two, not a map alone. Count a homestead as urban if, when the designation is made, the property sits within a municipality's limits or extraterritorial jurisdiction or a platted subdivision, and is served by police protection, paid or volunteer fire protection, and at least 3 of electric, natural gas, sewer, storm sewer and water service from or under contract to a municipality, under Tex. Prop. Code 41.002(c). Fall short of those services and the larger rural limit is in play.

When a writ of execution issues, the debtor gets a moment to pick. After a notice to designate is served, Tex. Prop. Code 41.022⁶ lets the debtor designate the homestead by filing a signed written designation, with a plat of the area, with the court that issued the writ. There is a precise deadline: before 10 a.m. on the Monday after 20 days have run from service. For how other states draw the same lines, see homestead protection, state by state.

Liens the constitution allows

Protection is not absolute. The constitution lists the debts that may reach the homestead anyway, and no lien outside that list is ever valid.

Purchase money and taxes lead the list, under Tex. Const. art. XVI, sec. 50(a). After them come an owelty of partition, which includes one spouse's debt to the other from a divorce division of a family homestead, and the refinance of a lien against the homestead, including a federal tax lien on the tax debt of both spouses if the homestead is a family homestead, or of the owner, per Tex. Const. art. XVI, sec. 50(a)(3) and (4). Work and material for new improvements reach it only if contracted for in writing, under Tex. Const. art. XVI, sec. 50(a)(5).

A home equity loan reaches the homestead only when it meets the constitution's conditions. It must be a voluntary written lien made with the consent of each owner and each owner's spouse, under Tex. Const. art. XVI, sec. 50(a)(6). Added to all other debt secured by valid encumbrances of record against the homestead, the secured debt may not exceed 80 percent of fair market value on the date the credit is made, per Tex. Const. art. XVI, sec. 50(a)(6)(B). And it is without personal liability for the owners unless they obtained it by actual fraud, under Tex. Const. art. XVI, sec. 50(a)(6)(C). Round out the list with a reverse mortgage and the conversion of a manufactured home lien into one on the real property, per Tex. Const. art. XVI, sec. 50(a)(7) and (8).

Everything else fails. No mortgage, trust deed or other lien on the homestead is ever valid unless it secures a debt the section describes, under Tex. Const. art. XVI, sec. 50(c). Tex. Prop. Code 41.001(b) carries the same roster as the encumbrances that may be properly fixed on the home. Neither list names a judgment lien.

Clearing the lien off the record

Even where the lien never attached, the recorded abstract can cloud a sale. Texas gives the debtor a sworn way to clear it, and the creditor a short window to contest.

In the real property records of the county where the homestead sits, the debtor may file an affidavit and a certificate of mailing, under Tex. Prop. Code 52.0012(b)⁷. That affidavit must be sent to the creditor by registered or certified mail, return receipt requested, at the creditor's last known address, the address in the court record if different, and the last known attorney's address in those records and in State Bar of Texas records if different, per Tex. Prop. Code 52.0012(b-1). Filed and mailed, the affidavit serves as a release of record of the judgment lien, subject to subsections (d) and (e), under Tex. Prop. Code 52.0012(c).

Disagreeing with it, a creditor has 30 days to fight. If, not later than the 30th day after the certificate of mailing is filed, the creditor records a contradicting affidavit asserting that the debtor's affidavit is untrue or that another reason exists why the lien attaches, the release does not hold against a purchaser or mortgagee, under Tex. Prop. Code 52.0012(e). Silence costs the creditor the point. Without a contradicting affidavit, a bona fide purchaser or a mortgagee for value may rely conclusively on the debtor's affidavit for the 90-day period that begins on the 31st day after the certificate of mailing is filed, per Tex. Prop. Code 52.0012(d).

What this does not cover

One question sits underneath every rule above, and it is the one the record cannot settle.

Whether a given parcel is the debtor's homestead is a fact about how the land is used and where the debtor lives, not something the deed declares. The texts here tell you what the protection is worth once a parcel qualifies. They do not tell you whether the parcel in front of you qualifies, and that is where the answer to the reader's question actually lives.

Nobody writing this is a lawyer and none of it is advice. Whether to record a contradicting affidavit before the 30 days run, or to let the release stand, is a question for counsel with the file open. What a page can do is narrower. It can tell you that a judgment lien reaches the debtor's land that is not the home, that these texts size the home in acres and state no dollar figure for it, and that temporary renting of it does not hand it to you.