Real Property Homestead Exemption and Waiver in Colorado

This article is intended for educational purposes only and not as legal advice

November 6, 2015

C.R.S. 38-41-201(1)(a) provides for a Homestead exempt from execution and attachment arising from any debt, contract or civil obligation in the amount of $75,000.00 if the homestead is owner occupied or by an owner’s family.  C.R.S. 38-41-201(1)(b) provides for a Homestead exemption in the amount of $105,00.00 if the homestead is occupied by an elderly or disabled owner; an elderly or disabled spouse of an owner, or an elderly or disabled dependent of an owner.    C.R.S. 38-41-201(2)(B) defines elderly as 60 or older.

Deeds of Trust and Mortgages contain provisions whereby the borrower(s) waives or subordinates their homestead exemption.  In cases where the loan is made to the more creditworthy spouse with a requirement to vest title solely in the creditworthy spouse, it is advisable to have the non-signing spouse execute a separate homestead waiver or subordination of homestead.  Instead, many lenders just add the requirement for the non-signing spouse to execute the deed of trust since by doing so they waive their homestead exemption.  However, when the non-signing spouse is not on title but signs the deed of trust, they are immediately breaching the deed of trust “title” covenant contained in every deed of trust.   To read other helpful legal tips, visit my profile and view previous posts.

 

Written by:

Michael Selinfreund
President/General Counsel
Cherry Creek Title Services, Inc.,
Agent for First American Title Insurance Company & NATIC