Homestead and exempt property: what a Texas judgment lien does not reach
A recorded abstract of judgment is a lien on a debtor's real property in the county, but not on all of it. The lien statute itself carves out exempt property, and in Texas the largest exemption is the homestead. Here is what the statutes say a judgment lien does not reach.
In short
- An abstract lien does not attach to property "exempt from seizure or forced sale under Chapter 41, the Texas Constitution, or any other law" (Prop. Code §52.001).
- A homestead is protected from forced sale for the payment of all debts except a short list, and an ordinary money judgment is not on it (Tex. Const. art. XVI, §50; Prop. Code §41.001).
- The homestead has size limits: 10 acres in a city or town, and 200 acres for a family or 100 acres for a single adult in the country (§41.002).
- The lien reaches real property only, so personal property is outside it altogether.
The exemption is written into the lien statute
Section 52.001 makes a recorded and indexed abstract a lien on the defendant's real property in the county, except real property "exempt from seizure or forced sale under Chapter 41, the Texas Constitution, or any other law." The exception is part of the definition of the lien, so the lien does not reach property while it is exempt.
The lien is also limited to real property. Personal property, exempt or not, is not reached by an abstract lien (see abstract of judgment).
The homestead
The Texas Constitution protects the homestead of a family or a single adult "from forced sale, for the payment of all debts except for" a listed set of debts (art. XVI, §50(a)). Property Code §41.001 says the same in statutory form. The exceptions are debts tied to the property itself, such as the purchase money, taxes on the property, work and materials for improvements contracted for in writing, owelty of partition, refinancing of a lien on the homestead, and home equity and reverse mortgage loans that meet the Constitution's terms. A judgment for money owed on some other debt is not among them.
Section 41.001(c) adds that the proceeds of a sale of a homestead are not subject to a creditor's claim for six months after the sale.
How much land counts
Section 41.002, following art. XVI, §51 of the Constitution, sets the limits:
- Urban: up to 10 acres, in one or more contiguous lots, with improvements. This includes a home used also as a place of business.
- Rural: up to 200 acres for a family, or 100 acres for a single adult, in one or more parcels, with improvements.
A homestead is urban if, when designated, it is in a city, its extraterritorial jurisdiction or a platted subdivision, and is served by police and fire protection and at least three of electricity, natural gas, sewer, storm sewer and water (§41.002(c)). A homestead claimant may designate the homestead by a recorded instrument, and property that receives a residence homestead tax exemption is treated as designated (§41.005). Land beyond the limits is not part of the homestead.
Other exempt real property
Chapter 41 also exempts one or more lots held for the purpose of sepulture (burial) (§41.001(a)). The words "or any other law" in §52.001 mean any other exemption from forced sale written elsewhere in Texas law is excluded from the lien too.
The homestead release affidavit
Because a recorded abstract can appear in a title search on homestead property, §52.0012 sets out a way to clear the record. A judgment debtor may record an affidavit, in a form the statute provides, swearing that the property is the debtor's homestead, and a certificate of mailing. The certificate states that the affidavit was recorded and that a letter and a copy of it were sent to the judgment creditor, by a mail service that requires a signed receipt, at the creditor's last known address, any other address in the creditor's court filings, and the addresses of the creditor's attorney (§52.0012(b), (b-1), (g)).
Once recorded, the affidavit serves as a release of record of the judgment lien on that property (§52.0012(c)). As against a buyer or lender who acquires an interest from the debtor, it does not release the lien if the judgment creditor files a contradicting affidavit "not later than the 30th day after the date a certificate of mailing was filed," stating that the debtor's affidavit or certificate is untrue or that another reason exists for the lien to attach (§52.0012(e)). A buyer or lender in good faith may rely on an uncontested affidavit for a set period (§52.0012(d)).
What JudgmentVault does and does not do
JudgmentVault shows each county's lien dates from the abstracts you record. It does not know what property a debtor owns, whether any of it is a homestead or otherwise exempt, or whether a lien has attached to a particular parcel. It does not search property records or look up a debtor's assets, and a lien shown as in effect means only that the lien period is running in that county.
Sources
- Tex. Prop. Code §52.001: the lien does not reach property exempt from seizure or forced sale under chapter 41, the Constitution or other law.
- Tex. Const. art. XVI, §§50, 51: the homestead is protected from forced sale for all debts except those listed; size limits.
- Tex. Prop. Code §41.001: homestead exemption, its listed exceptions, and six months’ protection of sale proceeds.
- Tex. Prop. Code §41.002: urban and rural homestead size limits, and what makes a homestead urban.
- Tex. Prop. Code §41.005: voluntary designation of a homestead.
- Tex. Prop. Code §52.0012: the homestead affidavit, notice to the creditor, and the creditor’s 30-day contradicting affidavit.
The rules JudgmentVault applies, and which are still pending legal review, are listed rule by rule in how JudgmentVault calculates Texas judgments.