AGUIRRE, JR. v. ELKO CTY. SHERIFF'S OFFICE

138 Nev., Advance Opinion 32-
IN THE SUPREME COURT OF THE STATE OF NEVADA
EFREN AGUIRRE, JR., No. 82445
Appellant,
vs.
ELKO COUNTY SHERIFF'S OFFICE,
FILE
Respondent. MAY 05 an
BY
Appeal from a district court judgment in a forfeiture action.
Fourth Judicial District Court, Elko County; Nancy Porter, Judge.
Reversed.
Gerber Law Offices, LLP, and Zachary A. Gerber and Travis W. Gerber,
Elko,
for Appellant.
Tyler J. Ingram, District Attorney, and Rand J. Greenburg, Deputy District
Attorney, Elko County,
for Respondent.
BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING,
JJ.
OPINION
By the Court, CADISH, J.:
In this appeal, we primarily consider whether Nevada's
homestead exemption protects real property from civil forfeiture and
whether an incarcerated individual who records a homestead declaration
while serving his or her prison sentence qualifies as a bona fide resident of
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the homestead property. In the proceeding below, the district court
determined that the homestead exemption may, as a general matter, protect
against civil forfeiture. The court found that the appellant did not
substantially comply with the residency requirement of the homestead
exemption under NRS 115.020, however, because he made his declarations
of homestead while incarcerated. Accordingly, the district court entered a
judgment of forfeiture against appellant, from which this appeal was taken.
As to the homestead exemption's reach, we hold that there is no
forfeiture exception to the homestead exemption and public policy does not
support the creation of such an exception. Regarding bona fide residence
status, we hold that incarcerated individuals may still be deemed residents
for purposes of the homestead exemption under NRS 115.020. Applying
these standards, we conclude that appellanes homestead declaration
substantially complied with NRS 115.020, and the district court therefore
erred when it entered a judgment of forfeiture. Accordingly, we reverse.
FACTS AND PROCEDURAL HISTORY
In 2016, appellant Efren Aguirre, Jr.'s parents conveyed to him
a home and real property located in Spring Creek, Nevada (the Property).
In October 2017, Aguirre was arrested for trafficking controlled substances
after a search of the Property revealed over 80 grams of heroin. The State
subsequently charged Aguirre with two counts of Trafficking a Schedule I
Controlled Substance. On November 2, 2017, respondent Elko County
Sheriffs Office filed a complaint for forfeiture of the Property, the
proceedings for which were stayed pending resolution of Aguirre's criminal
case. On November 21, 2017, while in jail, Aguirre recorded his initial
Declaration of Homestead, which stated his intent to claim and use the
Property as a homestead. In August 2018, the court accepted Aguirre's
guilty plea to one count of Trafficking a Schedule I Controlled Substance.
2
In October 2018, the court entered a judgment of conviction, sentencing
Aguirre to a term of incarceration of 48 to 120 months and imposing a fine
of $100.
In December 2018, while incarcerated, Aguirre leased the
Property to a third party on a week-to-week basis. The lease agreement
specifically acknowledged that Aguirre claimed and intended that the
Property remain his homestead and that he intended to occupy the Property
after his release from prison.
In March 2020, the Sheriff moved for summary judgment in the
civil forfeiture action, arguing that Aguirre's declaration of homestead was
invalid because he did not reside at the Property when he recorded it and
all right, title, and interest in the Property had vested in the Sheriff before
Aguirre claimed a homestead exemption. Aguirre opposed the motion,
arguing that under Article 4, Section 30 of the Nevada Constitution, and
NRS 115.010(1), his recorded homestead declaration protected the Property
from forfeiture. He asserted that because he recorded his homestead
declaration before any final process in the forfeiture action, his declaration
preempts forfeiture. Recognizing that NRS 115.010(5) excludes property
held under allodial title from protection from forfeiture, Aguirre argued that
by specifically excluding that type of title, the Legislature intended for the
homestead protections to preempt forfeiture of real property held under
other forms of title, including his Property. Aguirre also moved for
summary judgment in his favor on the same grounds.
In May 2020, while in prison and while a decision on the parties'
summary judgment motions was pending, Aguirre recorded an amended
Declaration of Homestead. In July 2020, following a hearing, the district
court denied both summary judgment motions, concluding, as relevant here,
3
that (1) on its face, NRS 115.010(1)s homestead protections appear to apply
to the Property, as neither party alleged that Aguirre holds allodial title to
the Property such that it would not be afforded protection under NRS
115.010(5); (2) other states have found that a homestead exemption protects
covered properties from forfeiture; and (3) "Mlle Nevada Constitution and
Nevada Revised Statutes have expressly stated the exceptions to the
homestead exemption," and "fflorfeiture is not one of them." The district
court determined that Aguirre's homestead declaration was timely because
it was recorded before execution of sale, but issues of fact remained as to
whether his declaration substantially complied with NRS 115.020(2)s
requirements for a valid homestead declaration, particularly including
whether he was a bona fide resident of the Property when he recorded the
declaration.
In September 2020, after conducting a bench trial and
considering post-trial briefing, the district court concluded that Aguirre did
not "substantially comply with NRS 115.010s requirements for a
homestead exemption because he filed his declarations of homestead while
incarcerated and, thus, did not have actual possession of the Property for
homesteading purposes. The court further concluded that forfeiture was
proper because Aguirre used the Property to commit a drug offense. In so
concluding, the court rejected Aguirre's claim that forfeiture of the Property
valued at roughly $298,000 violated the Eighth Amendment's Excessive
Fines Clause. The court reasoned that a forfeiture of nearly three times the
maximum $100,000 fine allowed by statute when Aguirre was convicted did
not per se violate the Eighth Amendment and, considering the gravity of
Aguirres offense, the fine was not excessive. Accordingly, the district court
awarded the Sheriff a judgment of forfeiture. Aguirre appeals.
4
DISCUSSION
A valid homestead is exempt from civil forfeiture
In denying summary judgment, the district court determined
that forfeiture is not one of the exceptions to the homestead protections
under either the Nevada Constitution or the Nevada Revised Statutes, such
that the Property was not subject to forfeiture if Aguirre met the
requirements for a valid homestead declaration. Although the district court
ultimately determined that Aguirre did not qualify as a "householder," i.e.,
the occupier of the Property in actual possession of it, and that Aguirre
consequently could not validly declare a homestead exemption, we conclude
that the court correctly determined that a valid homestead is exempt from
forfeiture.
The Nevada Constitution provides that "[a] homestead as
provided by law, shall be exempt from forced sale under any process of law."
Nev. Const. art. 4, § 30. The Constitution creates two specific exceptions to
the homestead exemption, namely, that "no property shall be exempt from
sale for [1] taxes or [2] for the payment of obligations contracted for the
purchase of said premises, or for the erection of improvements thereon." Id.
NRS 115.010(1) codifies the general rule exempting homesteads from any
"forced sale on execution or any final process from any court," while NRS
115.010(3) codifies the constitutional exceptions to the homestead
exemption.
The Sheriff argues on appeal that even if Aguirre's homestead
declaration were valid, the Property would nevertheless be subject to
forfeiture because Aguirre used the Property in trafficking several Schedule
I substances, as evidenced by the drugs found in the search of the Property.
While acknowledging that the Nevada Constitution and NRS 115.010(3)
establish specific exceptions that are inapplicable here, the Sheriff, relying
5
on Breedlove v. Breedlove, 100 Nev. 606, 691 P.2d 426 (1984), and Maki v.
Chong, 119 Nev. 390, 75 P.3d 376 (2003), asserts that public policy warrants
creating a forfeiture exception to the homestead exemption. We disagree,
as neither Breedlove nor Maki supports creating a forfeiture exception to
the homestead exemption and such an exception would thwart the goal of
the homestead exemption.
With the understanding that Nevada's "constitutional and
statutory provisions relating to homesteads should be liberally construed"
and require only substantial compliance, McGill v. Lewis, 61 Nev. 28, 40,
116 P.2d 581, 583 (1941), and that "Et]he law does not favor forfeitures and
statutes imposing them must be strictly construed," Wilshire Ins. Co. v.
State, 94 Nev. 546, 550, 582 P.2d 372, 375 (1978), we turn to Breedlove and
Maki. In Breedlove, the homesteader invoked the homestead exemption in
an attempt to avoid paying a child-support judgment, 100 Nev. at 607, 619
P.2d at 426, a tactic which clearly contravened the purpose of the homestead
exemption, see Jackman v. Nance, 109 Nev. 716, 718, 857 P.2d 7, 8 (1993)
("The purpose of the homestead exemption is to preserve the family home
despite financial distress, insolvency or calamitous circumstances, and to
strengthen family security and stability for the benefit of the family, its
individual members, and the community and state in which the family
resides." (emphases added)). Moreover, the homesteader in Breedlove
consistently acted in bad faith to avoid paying child support, most notably
lAt oral argument, the Sheriff disclaimed any textual basis for
creating a forfeiture exception to the homestead exemption and instead
specifically asserted that public policy alone warranted creating a forfeiture
exception. Thus, we address only whether public policy warrants creating
a forfeiture exception to the homestead exemption, not whether any statute
provides a basis for creating such an exception.
6
by creating a fraudulent trust to attempt to protect his home against his ex-
wife's attempts to collect on the child-support judgment. 100 Nev. at 607,
691 P.2d at 426.
Here, creating an exception would result in Aguirre's family
losing their home, which would conflict with the purpose of the homestead
exemption by rendering the declarant and his family homeless. See
Jackman, 109 Nev. at 718, 857 P.2d at 8. The Sheriff focuses on the harm
that drug dealing inflicts on the community and asserts that the public
policy behind the homestead exemption is not furthered by its application
here. While we certainly do not condone such conduct or discount its
detrimental impact, the Sheriffs argument overlooks that the purpose of
the homestead is to protect families against homelessness, see id.; see also
Maroun v. Deutsche Bank Nat'l Tr. Co., 109 A.3d 203, 207 (N.H. 2014) ("The
exemption protects the family from destitution . . . ."), and to protect
communities from the harm caused by homelessness, see Redmond v.
Kester, 159 P.3d 1004, 1007 (Kan. 2007) ("The homestead exemption was
established for the benefit of the family and society to protect the family
from destitution, and society from the danger of her citizens becoming
paupers." (internal quotation marks omitted)); see also Maroun, 109 A.3d at
207. Moreover, unlike the homesteader in Breedlove, there is no evidence
that Aguirre acted in bad faith in recording a homestead declaration.
Similar to Breedlove, Maki concluded that "[Wilder equitable
lien principles, the homestead exemption is inapplicable when the proceeds
used to purchase real property can be traced directly to funds obtained
through fraud or similar tortious conduct." 119 Nev. at 394, 75 P.3d at 379.
There, the appellant signed a limited power of attorney that allowed the
respondent to cash the appellant's State Industrial Insurance System
7
settlement check. Id. at 391-92, 75 P.3d at 378. The respondent was
supposed to use the settlement check to retain an attorney to help the
appellant appeal his conviction, but she instead used the funds to purchase
a home. Id. at 392, 75 P.3d at 378. After the appellant obtained a writ of
execution, the respondent asserted that the homestead exemption protected
her home from execution. Id. While the district court agreed, we did not.
Id. at 392-94, 75 P.3d at 378-79. As we explained, "debtors who fraudulently
acquire funds are 'not the type of debtor whom the legislature sought to
protect.'" Id. at 394, 75 P.3d at 379 (quoting Breedlove, 100 Nev. at 609, 691
P.2d at 428). Concluding that "Mlle homestead exemption statute cannot
be used as an instrument of fraud and imposition," id. (quoting Webster v.
Rodrick, 394 P.2d 689, 692 (Wash. 1964)), we recognized that public policy
"supports our application of an exception to homestead exemptions for
victims of fraud or similar tortious conduct" because "the exemption's
purpose is to provide protection to individuals who file the homestead
exemption in good faith." Id.Here, however, Aguirre did not obtain the Property with
fraudulent funds, as his parents conveyed the Property to him. The Sheriffs
argument that a person does not "make [] [a] declaration of homestead in
good faith" if he or she "files a homestead to protect the property from
forfeiture for crimes committed in the cominunity" is not persuasive. First,
the bad-faith finding in Maki was expressly tied to the use of fraudulently
obtained funds to purchase a home, 11.9 Nev. at 394, 75 P.3d at 379, which
did not occur here. Second, the Sheriffs theory would preclude any
homestead declaration after any process of law begins, which contradicts
our prior holding that a party can record a valid homestead up until the day
of the forced sale. See In re Nilsson, 129 Nev. 946, 952 n.4, 315 P.3d 966,
8
970 n.4 (2013) ("[W]e have held that a [homestead] declaration may be filed
at any time before the actual sale under execution."). Finally, the
homestead exemption protects against "calamitous circumstances,"
Jackman, 109 Nev. at 718, 857 P.2d at 8, which may include protecting the
homestead when the declarant is arrested because the homestead also
protects the declarant's family who live at the property, see id. We therefore
reject the Sheriffs argument that even if Aguirre recorded a valid
homestead declaration, the forfeiture of the Property would be proper.2
Aguirre satisfied NRS 115.020, and thus, the Property is a constitutionally
protected homestead
The Sheriff does not dispute that Aguirre owns the Property or
that he lived at the Property before his arrest, as declared in his homestead
declarations. The Sheriff contends, however, that Aguirre failed to satisfy
NRS 115.020(2)(b), which, in relevant part, requires a homestead declarant
to state that he or she is "residing" on the premises. Relying on Nilsson,
129 Nev. at 946, 315 P.3d at 996, and In re Ellis, No. 19-14495-MKN, 2019
WL 11590521 (Bankr. D. Nev. Nov. 25, 2019), the Sheriff argues that, at
most, Aguirre is a constructive resident of the Property because he was
incarcerated when he filed his homestead declarations. Finally, the Sheriff
suggests that Aguirres act of renting the Property to a third party precludes
him from establishing the Property as his residence.
Aguirre argues that the Property is his bona fide residence
because he lived there and intended to continue residing there before his
incarceration, and he intends to return to living there after his
2We note that NRS 115.010(5) provides that a property protected by
allodial title is not exempt from forfeiture. However, as the Sheriff conceded
at oral argument, this provision does not render homesteads nonexempt
from forfeiture. The Legislature, therefore, has not expressed a public
policy against homestead protection from forfeiture.
9
incarceration. He also asserts that his incarceration is a temporary absence
that does not negate his residency. Aguirre contends that he did not claim
a constructive occupancy and the district court erred in evaluating his
homestead declaration as constructive occupancy. Further, Aguirre argues,
temporarily renting out the Property does not preclude him from
establishing his residency. Applying de novo review to the district court's
conclusion that the Property did not qualify for a homestead exemption
under NRS 115.010 based on Aguirre's residency status, Torres v. Goodyear
Tire & Rubber Co., 130 Nev. 22, 25, 317 P.3d 828, 830 (2014) (reviewing
questions of statutory construction de novo); see Spector v. Spector, 226 So.
3d 256, 258-59 (Fla. Dist. Ct. App. 2017) (applying de novo review to the
trial coures legal conclusions regarding the application of homestead
protections), we agree with Aguirre.3
3Aguirre was released from custody during the pendency of this
appeal and recorded another homestead declaration once he resumed
physical residence at the Property. Aguirre filed a supplemental appendix
containing this homestead declaration, which the Sheriff moved to strike.
While we denied the Sheriffs motion to strike, we do not consider the
supplemental homestead declaration, as it was not in the record before the
district court. See Mack v. Estate of Mack, 125 Nev. 80, 91, 206 P.3d 98, 106
(2009) ("On appeal, a court can only consider those matters that are
contained in the record made by the court below and the necessary
inferences that can be drawn therefrom."). Moreover, we decline to address
whether the second amended homestead declaration moots the temporary
incarceration issue, as Aguirre did not cogently argue that the appeal is
moot in light of the second amended homestead declaration. See Edwards
v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (explaining that this court need not consider arguments that are not
cogently argued or supported by relevant authority); see also Burnham v.
Coffinberry, 76 P.3d 296, 301 (Wyo. 2003) (declining to consider
respondent's argument that the appeal is moot in light of intervening events
because he did "not present pertinent authority or cogent argument to
convince [the court] that this appeal is moor).
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Under the statutory definition of "legal residence," the Property
qualifies as Aguirre's residence at the time of his arrest. See NRS 10.155
(providing that a person's legal residence "is that place where the person
has been physically present within the State"). Crucially, an individual's
residence does not change because of a temporary absence. See id. ("Should
any person absent himself or herself from the jurisdiction of his or her
residence with the intention in good faith to return without delay and
continue his or her residence, the time of such absence is not considered in
determining the fact of residence.).
While this court has not previously addressed whether an
individual's incarceration is a temporary absence for homestead purposes,
courts in several other jurisdictions deem incarceration to be a temporary
absence. See, e.g., In re Crabb, No. 05-02594-H7, 2007 WL 7209436, at *1
(Bankr. S.D. Cal. June 21, 2007) (concluding that the "debtor's incarceration
is a temporary absence from her homestead that will not defeat her
exemption"); Roemelmeyer v. Godinez, 10 B.R. 70, 71 (Bankr. S.D. Fla. 1981)
(Imprisonment, which involves a forced absence from the home, does not
effect an abandonment of homestead rights."); Roberts v. Grisham, 493 So.
2d 940, 942 (Miss. 1986) ("Under the law as it presently stands, absence
occasioned by imprisonment—even a life sentence—does not defeat the
claim of homestead.”); Holden v. Cribb, 561 S.E.2d 634, 639 (S.C. Ct. App.
2002) (concluding that a debtor, "though incarcerated, is entitled to the
protection of the homestead exemption"). As one such court reasoned, "we
daresay [a debtor] has no intent to make the detention center his permanent
residence," and "No hold otherwise would thwart the underlying policy of
the homestead exemption." Holden, 561 S.E.2d at 639. We find these
authorities persuasive, and therefore, we hold that an individual's
11
incarceration is a temporary absence for purposes of the homestead
exemption. Because Aguirres incarceration is a temporary absence, he
satisfied the residency requirement of the homestead exemption. See NRS
115.020(2)(b); see also In re Smith, 22 B.R. 866, 867-68 (Bankr. E.D. Va.
1982) (concluding that an inmate resided at the property for homesteading
purposes even though she was physically in jail when she recorded her
homestead declaration); see also In re Buick, 23713.R. 607, 610 (Bankr. W.D.
Pa. 1999) (recognizing that an involuntary or compulsory absence from the
homestead does not constitute a relinquishment of homestead rights).
The Sheriffs arguments to the contrary are unavailing. First,
the Sheriffs reliance on Nilsson is misplaced. Nilsson addressed only
whether constructive occupancy could satisfy the residency requirement for
homestead purposes. 129 Nev. at 951, 315 P.3d at 969-70. There, the
declarant argued that he retained "constructive occupancy" of the house for
homestead purposes because he had previously lived in the house, and his
ex-wife and children still lived there. Id. at 951, 315 P.3d at 969. We
declined to adopt the constructive occupancy doctrine and concluded that
the declarant did not record a valid homestead declaration because he did
not actually reside at the property. Id. at 952-53, 315 P.3d at 970. However,
Nilsson did not address the temporary absence doctrine, nor did its facts
present an opportunity to do so, as there was no indication that the
declarant's absence was involuntary or compulsory, see Buick, 237 B.R. at
610, or that the declarant intended to return to the household after a
temporary absence, see In re Pham, 177 B.R. 914, 919 (Bankr. C.D. Cal.
1994) (explaining that a "temporary absence from the residence, for, e.g.,
vacation or hospitalization, would not destroy the characteristic of the
residence as the principal dwelling").
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Second, the Sheriffs reliance on the bankruptcy court's decision
in Ellis, 2019 WL 11590521, is also misplaced. There, the declarant
recorded a homestead declaration while imprisoned. Id. at *2. She
contended "that she was legally prohibited from living at the [r]esidence as
of the [p]etition [d]ate and should not be denied the benefit of the homestead
protection afforded under Nevada law." Id. Citing Nilsson, the court
sustained the trustees objection to the declarant's homestead exemption
claim, concluding that the declarant's argument was "the legal equivalent
of asserting constructive occupancy of the [r] esidence that simply does not
constitute bona fide residency." Id. at *4. However, Ellis did not discuss
any of the persuasive caselaw establishing that incarceration is a temporary
absence that does not preclude homestead protection, nor did it provide any
analysis as to why incarceration is equivalent to constructive occupancy.4
See id. We therefore decline to follow Ellis.
Third, to the extent the Sheriff argues that Aguirres
subsequent act of leasing the Property to a third party precludes
establishing the Property as his bona fide residence, we disagree.5 An
4Moreover, the court characterized the objection as "much ado about
nothing because the debtor had been released from prison and resided at
the residence, and thus, "nothing prevent[ed] the [d]ebtor from recording
another homestead declaration accurately representing that she currently
resides at the Hesidence." Ellis, 2019 WL 11590521, at *3.
5To the extent the Sheriff argues Aguirre abandoned the homestead
by leasing it, we disagree because merely leasing the Property to another
during a temporary absence does not constitute abandonment. See NRS
115.040(2) ("The homestead property shall not be deemed to be abandoned
without a declaration thereof in writing, signed and acknowledged by both
spouses, or the single person claiming the homestead, and recorded in the
same office and in the same manner as the declaration of claim to the
homestead is required to be recorded.").
13
individual can obtain homestead protection for commercial property so long
as the individual also resides at the property. See Jackman, 109 Nev. at
721, 857 P.2d at 10 (concluding that "a homestead may be claimed upon
premises used partly for business and partly for a dwelling . . . provided it
is and continues to be the bona fide residence of the family" (emphasis
omitted)); cf Drake Interiors, LLC v. Thomas, 433 S.W.3d 841, 848 (Tex. Ct.
App. 2014) ("Nor does temporary renting of the homestead constitute an
abandonment."). Because the Property remains Aguirre's bona fide
residence while he is temporarily absent from it, his use of the Property for
a commercial purpose does not preclude homestead protection, especially
when the lease provides that the "Tenant and Owner agree that the
residence is the primary residence and homestead of [Aguirre], and that it
is expressly understood that [Aguirre] intends to occupy the residence as
his homestead upon his release from incarceration."
Under NRS 115.020(2)(a) and (c), a single declarant mnst also
state that he or she is a householder and that he or she intends to use and
claim the property as a homestead. A householder is "one who keeps house"
who is "in actual possession of the house" and the "occupier of a house."
Nilsson, 129 Nev. at 951, 315 P.3d at 969 (quoting Goldfield Mohatvk
Mining Co. v. Frances-Mohawk Mining & Leasing Co., 31 Nev. 348, 354,
102 P. 963, 965 (1909)). A declarant need only substantially comply with
NRS 115.020. See McGill, 61 Nev. at 40, 116 P.2d at 583.
Aguirre's amended homestead declaration substantially
complied with NRS 115.020. In it, Aguirre stated that he is a householder
who intends to use and claim the Property as a homestead. Although he
was incarcerated, his temporary absence from the Property does not affect
14
his residency for homestead purposes, as discussed supra. Accordingly, the
homestead exemption protects the Property from forfeiture.6
The Sheriffs arguments do not show otherwise. To begin, as
explained, renting the Property to another while Aguirre is temporarily
absent does not preclude the homestead exception. See Jackman, 109 Nev.
at 721, 857 P.2d at 10. Further, the Sheriffs reliance on several cases for
the proposition that renting a property precludes receiving homestead
protection is misplaced, as those cases are either factually distinguishable
or contrary to Nevada law. For example, In re Holt is inapposite because
there the debtors sought homestead protection on their residence, as well
as a contiguous property which they rented to another individual. 357 B.R.
917, 924 (Bankr. M.D. Ga. 2006). The court denied homestead protection
as to the contiguous property because Georgia law allowed a party to claim
a homestead only over their dwelling, not any contiguous land. Id. That is
not the case here, as Aguirre is claiming a homestead only over his
residence. Regardless, unlike Georgia, Nevada's broad statutory definition
of a "homestead" encompasses land contiguous to the homestead, see NRS
115.005(2)(a) (defining a homestead as "Cal quantity of land, together with
the dwelling house thereon and its appurtenances"), especially when
construed, as it must be, in favor of the homestead exemption and against
forfeiture, see Wilshire Ins. Co., 94 Nev. at 550, 582 P.2d at 375; McGill, 61
Nev. at 40, 116 P.2d at 583. Similarly, In re Radtke, 344 B.R. 690, 693
(Bankr. S.D. Fla. 2006), and In re Bornstein, 335 B.R. 462, 464-66 (Bankr.
6Both parties agree that the Property is valued at $298,000, which
falls within the protected homestead equity amount. See NRS 115.010(2)
(providing that the homestead exemption "extends only to that amount of
equity in the property held by the claimant which does not exceed $605,000
in value).
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M.D. Fla. 2005), are inapposite because they held that a landowner cannot
claim a homestead in a property used in a commercial capacity, whereas
Nevada law is clear that a homestead can be claimed in a property used for
commercial purposes so long as the property remains the bona fide
residence of the declarant, Jackman, 109 Nev. at 721, 857 P.2d at 10.
Also unpersuasive is the Sheriffs argument that Aguirre's
amended homestead declaration was untimely because final process became
complete when the district court entered the judgment of forfeiture. First,
Aguirre recorded his amended homestead declaration in May 2020, while
the district court did not enter a judgment of forfeiture until December 31,
2020. Thus, the amended homestead declaration is not untimely, as it
predated the forfeiture judgment. Cf. Massey-Ferguson, Inc. v. Childress,
89 Nev. 272, 272, 510 P.2d 1358, 1358 (1973) (concluding that a homestead
exemption recorded three days prior to the sheriffs sale of the property was
valid). Second, even had the judgment predated the amended declaration,
final process would not be complete because it may still be reversed on
appeal. See generally Sheriff, Carson City, Nev. v. A 1983 Datsun 280 ZX
Sedan, 106 Nev. 419, 421, 794 P.2d 346, 348 (1990) (concluding that this
court has jurisdiction to hear appeals in forfeiture cases). Finally, as we
have noted, "a [homestead] declaration may be filed at any time before the
actual sale under execution."' Nilsson, 129 Nev. at 952 n.4, 315 P.3d at 970
n.4. Accordingly, we conclude that Aguirres amended declaration was
'While the Sheriff argued below that Aguirre's homestead declaration
was ineffective because title vested in the Sheriffs office when the property
was used to facilitate the commission or attempted commission of a felony,
the Sheriff did not raise that argument on appeal. Thus, we do not consider
it.
16
timely and established a valid homestead exemption that protects the
Property from forfeiture.8
CONCLUSION
Public policy does not warrant creating a civil forfeiture
exception to the homestead exemption. Further, incarcerated individuals
may still be deemed residents for purposes of the homestead exemption
under NRS 115.020. Aguirres amended declaration established that he
qualified as a bona fide resident of the Property because he lived there
before his incarceration and intended to live there upon his release, and his
incarceration was a temporary absence that did not negate his residency.
Thus, Aguirres amended declaration substantially complied with NRS
115.020, entitling him to the protection of the homestead exemption.
Accordingly, we reverse the district coures judgment of forfeiture.
410--
J.
Cadish
We concur:
J.
Silver
81n
light of our disposition, we need not address Aguirre's remaining
arguments.
17