Sanders v. Cassity , 1978 Utah LEXIS 1441 ( 1978 )

CROCKETT, Justice

(concurring with comments):

I agree with the holding of the main opinion that the conveyance of the subject property to the plaintiffs Sanders by their predecessor Leoda S. Dunham, who declared a homestead exemption therein, vested title to the plaintiffs free of any effect thereon by the defendant’s judgment lien. However, I think it advisable to state some reservations from agreeing with the certain statements in the main opinion which are not necessary to the resolution of the issue presented in this case and which, if excerpted and applied in other circumstances, may give rise to difficulty.

My first reservation is to the statement that “the homestead right is created from the moment of taking title or possession, not merely from the time a formal declaration is made.” It is undoubtedly true that the right to declare a homestead in property arises at the time the owner takes title. However, he may own more than one piece of property. Consistent with the intent and purpose that is expressed in the homestead statute and decisional law thereon, he has a right to choose whichever tract of his property he desires (within the value limits) in selecting and declaring his homestead.

The second reservation is to the statement that “It is the occupancy of the premises that gives rise to the homestead claim.” Based on the same reasons and purposes of the homestead act, I do not believe that the claimant must be in possession of the land to claim a homestead exemption thereon. The property so claimed might be land upon which he is planning to build his home, or it could be a home which he is leasing to another while he is compelled to be away on a work assignment, or some other kind of mission. Though it is true that some cases talk about possession of a homestead, it will generally be found that it depends upon the circumstance and upon the wording of the statutes.

Our statute says nothing about occupying the land, but gives the right to declare a homestead “consisting of lands.” This Court has previously met this problem and has recognized that under our Constitution and statutes, the right of a homestead exemption does not depend on possession. In the case of Rich Cooperative Ass’n v. Dustin, 14 Utah 2d 408, 385 P.2d 155, 156, Chief Justice Henriod speaking for a unanimous court stated:

a fee owner subject to a life estate can claim a homestead exemption under our constitution and statutes, irrespective of the question of possession. [Emphasis added.]