2005 Nevada Revised Statutes - Chapter 115 — Homesteads

CHAPTER 115 - HOMESTEADS

NRS 115.005 Definitions.

NRS 115.010 Exemptionfrom sale on execution and from process of court; amount of exemption;exceptions; extension of exemption.

NRS 115.020 Declarationof homestead: Contents; recording; notice required of person who charges feefor recording declaration; rights not extinguished by certain conveyances;rights of trustee; penalty.

NRS 115.030 Tenantsin common: Declaration of homestead.

NRS 115.040 Mortgageor alienation of homestead property; abandonment of homestead.

NRS 115.050 Executionagainst homestead.

NRS 115.060 Dispositionin case of death.

NRS 115.070 Conveyanceof homestead by owner when spouse insane: Procedure.

NRS 115.080 Propertynot exempt from sale for taxes.

NRS 115.090 Propertynot exempt from recovery of money owed to Department of Health and HumanServices for Medicaid benefits.

_________

NRS 115.005 Definitions. As used in this chapter, unless the context otherwiserequires:

1. Equity means the amount that is determined bysubtracting from the fair market value of the property the value of any liensexcepted from the homestead exemption pursuant to subsection 3 of NRS 115.010 or NRS 115.090.

2. Homestead means the property consisting of:

(a) A quantity of land, together with the dwellinghouse thereon and its appurtenances;

(b) A mobile home whether or not the underlying land isowned by the claimant; or

(c) A unit, whether real or personal property, existingpursuant to chapter 116 or 117 of NRS, with any appurtenant limited commonelements and its interest in the common elements of the common-interestcommunity,

to beselected by the husband and wife, or either of them, or a single person claimingthe homestead.

(Added to NRS by 1989, 646; A 1991, 579; 2003, 879)

NRS 115.010 Exemptionfrom sale on execution and from process of court; amount of exemption;exceptions; extension of exemption.

1. The homestead is not subject to forced sale onexecution or any final process from any court, except as otherwise provided bysubsections 2, 3 and 5, and NRS 115.090and except as otherwise required by federal law.

2. The exemption provided in subsection 1 extends onlyto that amount of equity in the property held by the claimant which does notexceed $350,000 in value, unless allodial title has been established and notrelinquished, in which case the exemption provided in subsection 1 extends toall equity in the dwelling, its appurtenances and the land on which it islocated.

3. Except as otherwise provided in subsection 4, theexemption provided in subsection 1 does not extend to process to enforce thepayment of obligations contracted for the purchase of the property, or forimprovements made thereon, including any mechanics lien lawfully obtained, orfor legal taxes, or for:

(a) Any mortgage or deed of trust thereon executed andgiven, including, without limitation, any second or subsequent mortgage,mortgage obtained through refinancing, line of credit taken against the propertyand a home equity loan; or

(b) Any lien to which prior consent has been giventhrough the acceptance of property subject to any recorded declaration ofrestrictions, deed restriction, restrictive covenant or equitable servitude,specifically including any lien in favor of an association pursuant to NRS 116.3116 or 117.070,

by bothhusband and wife, when that relation exists.

4. If allodial title has been established and notrelinquished, the exemption provided in subsection 1 extends to process toenforce the payment of obligations contracted for the purchase of the property,and for improvements made thereon, including any mechanics lien lawfullyobtained, and for legal taxes levied by a state or local government, and for:

(a) Any mortgage or deed of trust thereon; and

(b) Any lien even if prior consent has been giventhrough the acceptance of property subject to any recorded declaration ofrestrictions, deed restriction, restrictive covenant or equitable servitude,specifically including any lien in favor of an association pursuant to NRS 116.3116 or 117.070,

unless awaiver for the specific obligation to which the judgment relates has beenexecuted by all allodial titleholders of the property.

5. Establishment of allodial title does not exempt theproperty from forfeiture pursuant to NRS179.1156 to 179.119, inclusive, or 207.350 to 207.520, inclusive.

6. Any declaration of homestead which has been filedbefore July 1, 2005, shall be deemed to have been amended on that date byextending the homestead exemption commensurate with any increase in the amountof equity held by the claimant in the property selected and claimed for theexemption up to the amount permitted by law on that date, but the increase doesnot impair the right of any creditor to execute upon the property when thatright existed before July 1, 2005.

[Part 1:72:1865; A 1879, 140; 1949, 51; 1943 NCL 3315](NRS A 1965, 28; 1971, 575; 1975, 215, 981; 1977, 933, 1492; 1979, 984;1981, 625; 1983, 104, 662; 1985, 13; 1989, 3, 646; 1991, 579; 1995, 225; 1997,3419; 2003, 879, 1008; 2005, 1010, 2226)

NRS 115.020 Declarationof homestead: Contents; recording; notice required of person who charges feefor recording declaration; rights not extinguished by certain conveyances;rights of trustee; penalty.

1. The selection must be made by either the husband orwife, or both of them, or the single person, declaring an intention in writingto claim the property as a homestead.

2. The declaration must state:

(a) When made by a married person or persons, that theyor either of them are married, or if not married, that he or she is ahouseholder.

(b) When made by a married person or persons, that theyor either of them, as the case may be, are, at the time of making thedeclaration, residing with their family, or with the person or persons undertheir care and maintenance, on the premises, particularly describing thepremises.

(c) When made by any claimant under this section, thatit is their or his intention to use and claim the property as a homestead.

3. The declaration must be signed by the person orpersons making it, and acknowledged and recorded as conveyances affecting realproperty are required to be acknowledged and recorded. If the property declaredupon as a homestead is the separate property of either spouse, both must joinin the execution and acknowledgment of the declaration.

4. If a person solicits another person to allow thesoliciting person to file a declaration of homestead on behalf of the otherperson and charges or accepts a fee or other valuable consideration forrecording the declaration of homestead for the other person, the solicitingperson shall, before the declaration is recorded or before the fee or othervaluable consideration is charged to or accepted from the other person, providethat person with a notice written in bold type which states that:

(a) Except for the fee which may be charged by thecounty recorder for recording a declaration of homestead, a declaration ofhomestead may be recorded in the county in which the property is locatedwithout the payment of a fee; and

(b) The person may record the declaration of homesteadon his own behalf.

The noticemust clearly indicate the amount of the fee which may be charged by the countyrecorder for recording a declaration of homestead.

5. The rights acquired by declaring a homestead arenot extinguished by the conveyance of the underlying property in trust for thebenefit of the person or persons who declared it. A trustee may by similardeclaration claim property, held by him, as a homestead for the settlor or forone or more beneficiaries of the trust, or both, if the person or persons forwhom the claim is made reside on or in the property.

6. A person who violates the provisions of subsection4 is guilty of a misdemeanor.

[Part 1:72:1865; A 1879, 140; 1949, 51; 1943 NCL 3315](NRS A 1971, 575; 1983, 662; 1985, 13; 1995, 226)

NRS 115.030 Tenantsin common: Declaration of homestead. Tenantsin common may declare for homestead rights upon their respective estates inlands, and the improvements thereon; and hold and enjoy homestead rights andprivileges therein, subject to the rights of their cotenants, to enforcepartition of such common property as in other cases of tenants in common.

[Part 1:72:1865; A 1879, 140; 1949, 51; 1943 NCL 3315]

NRS 115.040 Mortgageor alienation of homestead property; abandonment of homestead.

1. A mortgage or alienation of any kind, made for thepurpose of securing a loan or indebtedness upon the homestead property, is notvalid for any purpose, unless the signature of the husband and wife, when thatrelationship exists, is obtained to the mortgage or alienation and theirsignatures are properly acknowledged.

2. The homestead property shall not be deemed to beabandoned without a declaration thereof in writing, signed and acknowledged byboth husband and wife, or the single person claiming the homestead, andrecorded in the same office and in the same manner as the declaration of claimto the homestead is required to be recorded.

3. If either spouse is not a resident of this State,his signature and the acknowledgment thereof is not necessary to the validityof any mortgage or alienation of the homestead before it becomes the homesteadof the debtor.

[2:72:1865; B 187; BH 540; C 551; RL 2143;NCL 3316](NRS A 1963, 28; 1971, 576; 1979, 281; 1983, 105; 1985, 14)

NRS 115.050 Executionagainst homestead.

1. Whenever execution has been issued against theproperty of a party claiming the property as a homestead, and the creditor inthe judgment makes an oath before the judge of the district court of the countyin which the property is situated, that the amount of equity held by theclaimant in the property exceeds, to the best of the creditors information andbelief, the sum of $350,000, the judge shall, upon notice to the debtor,appoint three disinterested and competent persons as appraisers to estimate andreport as to the amount of equity held by the claimant in the property, and ifthe amount of equity exceeds the sum of $350,000, determine whether theproperty can be divided so as to leave the property subject to the homesteadexemption without material injury.

2. If it appears, upon the report, to the satisfactionof the judge that the property can be thus divided, he shall order the excessto be sold under execution. If it appears that the property cannot be thusdivided, and the amount of equity held by the claimant in the property exceedsthe exemption allowed by this chapter, he shall order the entire property to besold, and out of the proceeds the sum of $350,000 to be paid to the defendantin execution, and the excess to be applied to the satisfaction on theexecution. No bid under $350,000 may be received by the officer making thesale.

3. When the execution is against a husband or wife,the judge may direct the $350,000 to be deposited in court, to be paid out onlyupon the joint receipt of the husband and wife, and the deposit possesses allthe protection against legal process and voluntary disposition by either spouseas did the original homestead.

[3:72:1865; B 188; BH 541; C 552; RL 2144; NCL 3317](NRS A 1975, 215; 1979, 282, 984; 1981, 625; 1983, 663; 1989, 3, 647;1995, 226; 2003, 1009;2005, 1010, 2227)

NRS 115.060 Dispositionin case of death. Except as otherwise providedin a premarital agreement between the husband and wife which is enforceablepursuant to chapter 123A of NRS:

1. If the property declared upon as a homestead iscommunity property, the husband and wife shall be deemed to hold the homesteadas community property with a right of survivorship. Upon the death of eitherspouse:

(a) The exemption of the homestead from executioncontinues, without further filing, as to any debt or liability existing againstthe spouses, or either of them, until the death of the survivor and thereafteras to any debt or liability existing against the survivor at the time of hisdeath.

(b) The property vests absolutely in the survivor.

2. If the property declared upon as a homestead is theseparate property of either spouse, the husband and wife shall be deemed tohold the right to exemption of the homestead from execution jointly while bothspouses are living. If the property retains its character as separate propertyuntil the death of one or the other of the spouses:

(a) If it is the separate property of the survivor, theexemption of the homestead continues.

(b) If it was the separate property of the decedent,the exemption of the homestead from execution continues as to any debt orliability existing against the spouses, or either of them, at the time of deathof the decedent but ceases as to any subsequent debt or liability of thesurvivor.

(c) The property belongs to the person, or his heirs,to whom it belonged when filed upon as a homestead.

3. If the property declared upon as a homestead is theproperty of a single person, upon his death:

(a) The exemption of the homestead from executioncontinues, without further filing, as to any debt or liability existing againsthim at the time of his death and as to any subsequent debt or liability againsta person who was living in his house at the time of his death, if that personcontinues to reside on the homestead property and is related to him byconsanguinity or affinity, even if the person through whom the relation byaffinity was created predeceased the declarant.

(b) The right of enjoyment of the property belongs toeach person described in paragraph (a) until that person no longer qualifiesunder that paragraph.

4. If two or more persons who are not related byconsanguinity or affinity have claimed as a homestead their respectiveundivided interests in a single parcel of land or a mobile home, upon the deathof one the exemption of the entire property from execution continues as to anydebt or liability of the decedent and the other declarants until the death ofthe last declarant to die, but only for the benefit of a declarant whocontinues to reside on or in the property.

[4:72:1865; A 1879, 140; BH 542; C 553; RL 2145; NCL 3318](NRS A 1965, 60; 1977, 933; 1983, 105, 663; 1985, 14, 145,146; 1989, 1007)

NRS 115.070 Conveyanceof homestead by owner when spouse insane: Procedure.

1. If the spouse of any owner of a homestead isinsane, and the owner desires to convey the homestead, or any interest therein,he may petition the district court in which the homestead is situated forlicense to convey the homestead. The court, upon reasonable and not less than20 days notice of the petition to the kindred of the insane spouse residing inthis state (which notice may be personal or by publication in some newspaper inthe county, or directed by the court), may hear and determine the petition, andmay license the owner to convey the homestead, or any interest therein, by hissole deed. The license must be recorded in the office where the homestead isrecorded, and thereafter the sole deed operates as if the spouse had been saneand joined in the deed.

2. On granting the license, the court may make suchspecial order as to the investment or disposition of the funds derived fromconveyance as it deems necessary to protect the interest of the insane spouse.

3. On the hearing of the petition for license, any ofthe kindred may appear and be heard in the premises, and may appeal from anyorder made on the subject in the same manner provided for other appeals fromdecrees of the district court.

[5:72:1865; B 190; BH 543; C 554; RL 2146;NCL 3319] + [6:72:1865; B 191; BH 544; C 555; RL 2147; NCL 3320] +[7:72:1865; B 192; BH 545; C 556; RL 2148; NCL 3321](NRS A 1979,282)

NRS 115.080 Propertynot exempt from sale for taxes. Nothing inthis chapter shall be so construed as exempting any real or personal propertyfrom sale for taxes.

[8:72:1865; B 193; BH 546; C 557; RL 2149;NCL 3322]

NRS 115.090 Propertynot exempt from recovery of money owed to Department of Health and HumanServices for Medicaid benefits. Nothing inthis chapter exempts any real or personal property from any statute of thisState that authorizes the recovery of money owed to the Department of Healthand Human Services as a result of the payment of benefits from Medicaid throughthe imposition or foreclosure of a lien against the property of a recipient ofMedicaid in the manner set forth in NRS422.29302 to 422.29308, inclusive.

(Added to NRS by 2003, 878)

 

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