315 P.3d 966
Nev.2013Background
- Bankruptcy court in Nevada certified a question about whether a debtor may claim Nevada's homestead exemption under NRS 21.090(1)(l) and NRS Chapter 115 when the debtor does not reside on the property but his children do.
- David Nilsson did not reside at the Reno property since 2006; the Reno home was owned with his ex-wife as tenants in common and their children lived there.
- Kelli Nilsson recorded a 2011 homestead declaration on the Reno property; David did not join, despite his name on the title.
- David filed for Chapter 7 (later converted to Chapter 13) and claimed the Reno property as exempt via the homestead exemption; the trustee objected based on lack of residence.
- The court concluded that Nevada law requires actual residence on the property to claim a homestead exemption, rejecting constructive-occupancy theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must a debtor reside on the property to claim a homestead exemption? | Nilsson contends residency is not required if his family resides there. | Van Meter argues the debtor must reside on the property to claim the exemption. | Residency is required; no exemption without bona fide residence. |
| Does constructive occupancy permit exemption where the debtor's family resides there but the debtor does not? | Nilsson asserts constructive occupancy can protect the family's interest. | Van Meter argues constructive occupancy is not recognized under Nevada law for this purpose. | Constructive occupancy is not recognized to extend the exemption. |
| Can a single person declare a homestead without residing on the property? | Nilsson relies on broad interpretations of declaration provisions to extend the exemption. | Van Meter emphasizes the householder requirement and actual residence for declarations. | Single-person declarations require residency; bona fide residence is necessary. |
Key Cases Cited
- Savage v. Pierson, 123 Nev. 86 (Nev. 2007) (homestead exemptions interpreted under written statutes; liberal in favor of debtor but requires substantial compliance)
- Jackman v. Nance, 109 Nev. 716 (Nev. 1993) (homestead policy prioritizes family residence and bona fide residence)
- I.H. Kent Co. v. Miller, 77 Nev. 471 (Nev. 1961) (homestead policy; public policy to protect family home)
- McGill v. Lewis, 61 Nev. 28 (Nev. 1941) (liberal interpretation limited by substantial compliance with provisions)
- In re Sullivan, 200 B.R. 682 (Bankr. D. Nev. 1996) (absence of residence defeats homestead claim; residency required)