2018 New Mexico Statutes
Chapter 42 - Actions and Proceedings Relating to Property
Article 10 - Exemptions
Section 42-10-9 - Homestead exemption.

Each person shall have exempt a homestead in a dwelling house and land occupied by the person or in a dwelling house occupied by the person although the dwelling is on land owned by another, provided that the dwelling is owned, leased or being purchased by the person claiming the exemption. Such a person has a homestead of sixty thousand dollars ($60,000) exempt from attachment, execution or foreclosure by a judgment creditor and from any proceeding of receivers or trustees in insolvency proceedings and from executors or administrators in probate. If the homestead is owned jointly by two persons, each joint owner is entitled to an exemption of sixty thousand dollars ($60,000).

History: 1953 Comp., § 24-6-1, enacted by Laws 1971, ch. 215, § 6; 1973, ch. 277, § 1; 1979, ch. 9, § 1; 1979, ch. 182, § 3; 1987, ch. 193, § 1; 1993, ch. 44, § 1; 2007, ch. 95, § 1.

Repeals and reenactments. — Laws 1971, ch. 215, § 6, repealed 24-6-1, 1953 Comp., relating to family homestead exemption and inapplicability of section to mortgages and statutory liens, and enacted a new section.

Cross references. — For municipal housing authority projects, see 3-45-1 NMSA 1978.

For exemption from execution for claims to public lands of United States, see 19-3-3 NMSA 1978.

For no exemption for property subject to quiet title suit for failure of co-owner to pay share of suit, see 42-6-11 NMSA 1978.

For property exemption due assignments for benefit of creditors, see 56-9-44 NMSA 1978.

For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.1, 2-801, and 3-801 NMRA, respectively.

For form for claim of exemptions on executions, see Rule 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA.

For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.

For form for claim of exemption from garnishment, see Rule 4-809 NMRA.

The 2007 amendment, effective June 15, 2007, increased the homestead exemption from $30,000 to $60,000.

The 1993 amendment, effective July 1, 1993, deleted "spouse, widow, widower or person who is supporting another" following "Each" in the first sentence and substituted "thirty thousand dollars ($30,000)" for "twenty thousand dollars ($20,000)" in the second and third sentences.

The 1987 amendment, effective June 19, 1987, substituted "Each spouse" for "A married person" at the beginning of the section and added the last sentence.

The 1979 amendment, substituted "shall have" for "may hold" following "supporting another person" near the beginning of the first sentence; substituted "has" for "may claim" following "Such a person" near the beginning of the second sentence; and substituted "twenty thousand dollars ($20,000)" for "ten thousand dollars ($10,000)" near the beginning of the second sentence.

Purpose of homestead exemption. — The purpose of the Homestead Act exemption statute is to "prevent families from becoming destitute as the result of misfortune through common debts which generally are unforseen." Laughlin v. Lumbert, 1961-NMSC-064, 68 N.M. 351, 362 P.2d 507.

Tortious conduct not intended. — Where the defendant debtor in a foreclosure action voluntarily damages the property for the purpose of sabotaging the lawful interest of the plaintiff, the district court has the authority to impose an equitable lien against the debtor's homestead exemption. Coppler & Mannick v. Wakeland, 2005-NMSC-022, 138 N.M. 108, 117 P.3d 914.

Exemption statutes should be liberally construed. Laughlin v. Lumbert, 1961-NMSC-064, 68 N.M. 351, 362 P.2d 507; McFadden v. Murray, 1927-NMSC-039, 32 N.M. 361, 257 P. 999 (decided under former law).

The homestead exemption statute is to be construed liberally to the debtor's benefit. In re Jefferson, 163 Bankr. 204 (Bankr. D.N.M. 1993).

Exemption under New Mexico law allows exemption against United States. — One entitled to an exemption of homestead under the laws of New Mexico may hold the same against the United States. United States v. Lesnet, 1897-NMSC-028, 9 N.M. 271, 50 P. 321 (decided under former law).

Constitutionality. — The postjudgment execution statutes are unconstitutional as not providing adequate notice of allowable exemptions and the right to a hearing. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).

"Supporting another person". — This section as it read prior to the 1993 amendment did not require the claimant of a homestead exemption to have legal custody of his children, to be their sole supporter, or to have his children reside with him. It required only that the claimant be "supporting" another person. Ruybalid v. Segura, 1988-NMCA-084, 107 N.M. 660, 763 P.2d 369.

"Occupied" defined. — The word "occupied" must not be construed so narrowly as to deprive a debtor of a homestead exemption she would be entitled to but for actual physical occupancy. In re Wells, 132 Bankr. 966 (Bankr. D.N.M. 1991); In re Jefferson, 163 Bankr. 204 (Bankr. D.N.M. 1993).

"Hold" defined. — The word "hold" meant to keep, retain, or to preserve exempt from sale, or judgment, or order, and did not measure the character of the occupancy of the homestead. Corn v. Hyde, 1920-NMSC-023, 26 N.M. 36, 188 P. 1102 (decided under former law).

Equitable as well as legal owners of real property are entitled to claim a homestead exemption. Nesset v. Blueher Lumber Co., 33 Bankr. 326 (Bankr. D.N.M. 1983).

Property interest in exempt property. — By creating exemptions from execution, New Mexico granted judgment debtors a property interest in retaining their exempt property, which is entitled to due process protection. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).

Right to claim exemption includes judgment debtors. — A judgment lien attaches to the equitable interest of a purchaser of real estate under a contract; the judgment lien may be foreclosed in the same manner as ordinary suits for the foreclosure of mortgages; and if the land in question is the judgment debtor's homestead, he may claim an exemption of $10,000 (now $60,000). Such a reading prevents a debtor from placing his assets beyond his creditor's reach and precludes the possibility of fraud being perpetrated upon the commercial community. Mutual Bldg. & Loan Ass'n v. Collins, 1973-NMSC-113, 85 N.M. 706, 516 P.2d 677.

Family homestead exemption was available to judgment debtors in foreclosure of a lien of a judgment obtained in a suit on a note. Laughlin v. Lumbert, 1961-NMSC-064, 68 N.M. 351, 362 P.2d 507.

Claim of exemption under original execution did not remain effective to prevent a sale under a second or alias execution. Meyers Co. v. Mirabal, 1921-NMSC-098, 27 N.M. 472, 202 P. 693 (decided under former law).

Waiving exemption by mortgage. — The owner of real estate can by mortgage or other act waive his exemption. Tomson v. Lerner, 1933-NMSC-078, 37 N.M. 546, 25 P.2d 209 (decided under former law).

Sale of homestead property. — Where a mortgagee filed a foreclosure action against the mortgagor and a judgment creditor holding a lien on the property, the mortgagor was entitled to the homestead exemption against the judgment lien where she had asserted the exemption in her answer to the action and obtained judicial approval of the sale of the property to a third party during the proceedings. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, 124 N.M. 405, 951 P.2d 1066.

Abandonment of homestead. — Debtor, who physically moved from the property because creditors had taken judgments against her, transcribed those judgments, and told her she was going to lose the house, did not abandon her homestead since it was undisputed that she intended to return to the house if allowed the exemption. In re Wells, 132 Bankr. 966 (Bankr. D.N.M. 1991).

Occupation by claimant. — The debtor is entitled to the homestead exemption only if the dwelling house and land were occupied by him at the time of the petition. In re Jefferson, 163 Bankr. 204 (Bankr. D.N.M. 1993).

When mortgagors not entitled to exemption. — Mortgagors were not entitled to a homestead exemption against junior judgment lienholders since they had an opportunity to advance claims for such exemption in their answers to cross claims which sought foreclosure of the liens, but failed to do so, and thereby failed to comply with Section 39-4-15 NMSA 1978, which required that such claim be made in answer to foreclosure suit. Nor were proceeds of sale shielded by this section from operation of writs of garnishment. Speckner v. Riebold, 1974-NMSC-029, 86 N.M. 275, 523 P.2d 10.

When owner not entitled to exemption. — When the owner of a homestead voluntarily sells the property, the proceeds of sale are not exempt. In re Blair, 125 Bankr. 303 (Bankr. D.N.M. 1991).

Garnishment of exemption to satisfy different judgment improper. — District court judgment permitting a family homestead exemption was not subject to garnishment to satisfy a judgment recovered in another New Mexico court since the first district court had jurisdiction in the premises and did not act erroneously. Laughlin v. Lumbert, 1961-NMSC-064, 68 N.M. 351, 362 P.2d 507).

Homestead exemption not subject to attachment. — The legislature provided that the homestead exemption is not subject to attachment. Coppler & Mannick v. Wakeland, 2005-NMSC-022, 138 N.M. 108, 117 P.3d 914.

Homestead exemption not subject to garnishment. — A homestead exemption is not subject to garnishment to satisfy a separate judgment. Coppler & Mannick v. Wakeland, 2005-NMSC-022, 138 N.M. 108, 117 P.3d 914.

Effect of homestead claimant voting in different precinct. — The fact that a homestead claimant voted in another precinct than that in which his homestead is situated is not conclusive evidence of abandonment. Corn v. Hyde, 1920-NMSC-023, 26 N.M. 36, 188 P. 1102 (decided under former law).

Prior to 1979 amendment, exemption had to be claimed. — To be entitled to a homestead exemption under Section 39-4-15 NMSA 1978 and this section (prior to the 1979 amendment of this section), a party had to claim the exemption in his answer to a foreclosure action; otherwise, he could not claim it. USLife Title Ins. Co. v. Romero, 1982-NMCA-068, 98 N.M. 699, 652 P.2d 249, cert. denied, 98 N.M. 336, 648 P.2d 794, and cert. quashed, 98 N.M. 762, 652 P.2d 1213 .

Increased exemption may not be claimed against lien attached prior to effective date of increase. — A legislative increase in the amount of the homestead exemption may not be claimed against a judgment lien that attaches prior to the effective date of the statutory amendment increasing the exemption. Ranchers State Bank v. Vega, 1982-NMSC-131, 99 N.M. 42, 653 P.2d 873.

Applicability to trailers. — A debtor is entitled to claim a trailer used as a dwelling house as exempt, whether it is realty or personalty. In re Jefferson, 163 Bankr. 204 (Bankr. D.N.M. 1993).

Incidental quasi-commercial use of property, in case where claimant kept two rental trailers on his property in addition to a trailer he used as dwelling house, did not defeat claim of exemption. In re Jefferson, 163 Bankr. 204 (Bankr. D.N.M. 1993).

Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).

For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).

For note, "Debtor Exemptions in New Mexico," see 6 Nat. Resources J. 467 (1966).

For article, "The Perils of Intestate Succession in New Mexico and Related Will Problems," see 7 Nat. Resources J. 555 (1967).

For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M.L. Rev. 1 (1974).

For comment, "A Comparison of State and Federal Exemptions: 11 U.S.C. § 101-1330 (Supp. II 1978)," see 10 N.M.L. Rev. 431 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Homestead §§ 1 to 3, 27, 32, 86 to 112.

Exemption of proceeds of voluntary sale of homestead, 1 A.L.R. 483, 46 A.L.R. 814.

"Owner," scope and import of term, in homestead exemption statutes, 2 A.L.R. 793, 95 A.L.R. 1085.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 5 A.L.R.4th 1310.

Imprisonment as affecting abandonment of homestead, 5 A.L.R. 259.

Validity of statute abolishing vested right of homestead exemption as against particular classes of claims, 6 A.L.R. 1143.

Wife's right to exclude husband from possession, use or enjoyment of homestead owned by her, 21 A.L.R. 745.

Failure of head of family to claim homestead exemption as affecting other members of family, 33 A.L.R. 611.

Separation agreement as affecting right in homestead, 35 A.L.R. 1518, 34 A.L.R.2d 1040.

Divorce as affecting homestead, 36 A.L.R. 431, 84 A.L.R.2d 703.

Wife's loss of homestead rights through absence enforced by act of husband, 42 A.L.R. 1162, 129 A.L.R. 305.

Reformation of instrument as against wife claiming homestead, 44 A.L.R. 118, 79 A.L.R.2d 1180.

Validity and effect of alienation or encumbrance of homestead without joinder or consent of wife, 45 A.L.R. 395.

Reconveyance or encumbrance of homestead by husband without joinder of wife, to settle purchase-money debt, validity of, 45 A.L.R. 413.

Tax collector's bond, homestead as subject to lien of, 47 A.L.R. 512, 54 A.L.R. 1285.

Estoppel to claim homestead rights in property by failure to disclose interest, 50 A.L.R. 804.

Option, exercise of, as affecting intervening declaration of homestead, 50 A.L.R. 1329.

Insurance on homestead property, exemption of proceeds of, 63 A.L.R. 1296, 65 A.L.R. 1209.

Inclusion of different tracts or parcels in homestead, 73 A.L.R. 116.

Tax sale of property as cutting off homestead rights, 75 A.L.R. 438.

Marshaling assets, homestead law as affecting rule as to, 77 A.L.R. 371.

Cloud on title, execution sale or judgment lien affecting homestead as, 78 A.L.R. 266, 272.

Nonclaim statute as applied to homestead mortgages, 78 A.L.R. 1143.

Time as of which, and extent to which, homestead exemption attaches to property received in exchange for homestead, 83 A.L.R. 54.

Estate or interest in real property to which a homestead claim may attach, 89 A.L.R. 511, 74 A.L.R.2d 1355.

Wife's homestead rights as affected by fact that she does not live in state, 92 A.L.R. 1054.

Impairment of obligation of contracts by homestead exemption law, 93 A.L.R. 181.

Estoppel to claim, or waiver of, homestead by direction of judgment debtor to levy on real estate, 101 A.L.R. 851.

Specific performance of parol agreement for exchange of land where wife or plaintiff has released her homestead rights by deed made with husband to defendant, 101 A.L.R. 1107.

Direction in will for payment of debts and expenses as subjecting exempt homestead to their payment, 103 A.L.R. 257.

Alimony, enforcement of claim for, against homestead, 110 A.L.R. 904.

Business purposes, character of property as homestead as affected by its use for, as well as for residence purposes, 114 A.L.R. 209.

Laborers, servants or the like, who are, within constitutional or statutory provision subjecting homestead to claims of, 114 A.L.R. 767.

Mental incompetency of one spouse as affecting transfer or encumbrance of homestead property, 155 A.L.R. 312.

Lien or encumbrance as affecting extent of exemption of proceeds of voluntary sale of homestead, 161 A.L.R. 1256.

Rights of surviving spouse and children in proceeds of sale of homestead in decedent's estate, 6 A.L.R.2d 515.

Validity of contract waiving homestead exemption, 94 A.L.R.2d 981.

Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.

35 C.J.S. Exemptions §§ 1, 70, 110; 40 C.J.S. Homesteads §§ 51 to 69.