FOR THE NORTHERN DISTRICT OF CALIFORNIA
ALLEN and CHERYL BARKER, No. 1-84-00961
Memorandum and Order on Homestead Exemption
Debtor Allen Barker has claimed his residence at 32 Perch Street, Eureka, California, as
exempt in the amount of $75,000.00 pursuant to California Code of Civil Procedure section
704.710 et seq. The reason for claiming the exemption under that section (Article 4) and not the
declared homestead provisions (Article 5) is unclear, as it appears that the debtor had recorded
a declaration of homestead. Nonetheless, the court must decide the issue as presented. The
Trustee and Allen's former spouse, Cheryl Barker, have objected on the grounds that (1) he was
not residing in the Perch Street property when he filed his bankruptcy petition and (2) the
maximum exemption to which he could be entitled is only $55,000.00.
The evidence taken by the court established that when the debtors filed their bankruptcy
petition they resided together at the separate property home owned by Cheryl Barker. Although
Allen maintained a bed at the Perch Street property, kept some clothes there, received his mail
there and sometimes spent the night there, he used the Perch Street property mainly as an office
and was clearly residing with his wife in her home when they filed their bankruptcy petition.
Allen's sole cite in support of his position is a 1958 California case holding that a declared
homestead survives a move away. The case is inapplicable to an Article 4 claim of exemption.The
controlling statute for an Article 4 claim of exemption is Code of Civil Procedure section
704.710(c), which defines "homestead" as "the principal dwelling (1) in which the debtor . .
resided on the date the judgment creditor's lien attached to the dwelling, and (2) in which the
judgment debtor . . . resided continuously thereafter until the date of the court determination that
the dwelling is a homestead."
While Allen established that he occasionally resided at the Perch Street property, when he filed
his bankruptcy petition his principal dwelling
was his wife's home. The Article 4 exemption clearly
does not allow a debtor to claim a homestead in property which was not his principal dwelling.
Thus, it does not appear that Allen has met the requirements for a valid homestead exemption
under California law.
The legislative Committee Comments regarding the 1983 amendment to section 704.710 are
instructive. The amendment deleted the word "actually" before the word "resided" in order " to
avoid a possible construction that a person temporarily absent (such as a person on vacation or
in the hospital) could not claim a dwelling exemption . . . merely because the person is temporarily
absent, even though the dwelling is the person's principal dwelling and residence." 17
Cal.L.Rev.Comm Reports 854 (1983). In this case, Allen was more than temporarily absent; while
he occasionally resided at the Perch Street property, and it was his principal residence in the sense
that it was the only residence he owned, it was not his principal dwelling when he filed his
bankruptcy petition and therefore he is not entitled to the exemption.
It should be noted that the above statutory provisions apply only to the "automatic homestead"
provisions of CCP sections 704.710 et seq.; they do not apply to the declared homestead
exemption under sections 704.910 et seq. Moving away from an Article 4 homestead destroys its
exempt status, but moving away from an Article 5 homestead may not; The controlling case on
this issue, In re Anderson
(9th Cir. 1987) 824 F.2d 754, 757, seems ambiguous. Thus, the court's
ruling might be different if Allen had claimed his exemption under Article 5, depending on how
Because Allen's Article 4 homestead rights were completely destroyed when he moved in with
his wife, the court need not decide what the amount of the homestead exemption is. It is therefore
ORDERED that the objections to the homestead exemption are sustained, with leave to amend.
Dated: April 16, 1990 _______________________