In re: | ) |   |
  | ) | Case No. A93-00074-DMD |
FRANK W. ROSE and | ) | Chapter 7 |
CAROLYN A. ROSE, | ) |   |
  | ) |   |
Debtors. | ) |   |
_____________________________ | ) |   |
As of February 1, 1993, Frank was married to Carolyn. Their son, Christopher, was residing with Carolyn in half of the duplex. Even if Frank had abandoned the homestead, a contention he vigorously opposes, as of February 1, 1993 it served as the principal residence of Carolyn and Christopher Rose, dependents of the debtor. As such, Frank was entitled to a homestead exemption, even if he did not use it as his principal residence.1AS 09.38.010 provides:
An individual is entitled to an exemption as a homestead of the individual's interest in property in this state used as the principal residence of the individual or the dependents of the individual, but the value of the homestead exemption may not exceed $54,000.
40 C.J.S. Homesteads § 39 states:A homestead claim is sustainable in respect of more than one tract of land--for example, adjoining or contiguous lots or tracts. "One lot," within the purview of the statute, may consist in adjacent parts of two lots as platted. The fact that the interest of the homestead claimant in the two lots is not identical, does not prevent inclusion of both lots in one homestead.
As a rule, it is a question of fact whether adjoining or contiguous tracts of land forming one compact body are parts of a homestead. But even where the tracts are contiguous, unless the second tract is used in conjunction with the tract on which the dwelling is located, the second tract is not included in the homestead. (Footnotes omitted.)
Here, the debtor and his family have always used the lots for homestead purposes. They have been used primarily as a yard for the children's play. There is a sandbox, a storage shed, and a lawn on the lots. The debtor and his family have used the lots for recreational purposes, volleyball, badminton, and skating. They bought the lots for privacy, to preserve their view, and to give their children a place to play. The lots have never been used for commercial purposes. Under these circumstances, liberally construing the statute in the debtors' favor, I conclude that the lots constitute a part of the debtors' principal residence. They are, therefore, exempt as there is no equity above the homestead exemption of $54,000 and the underlying encumbrance of approximately $38,000.Adjoining tracts or lots not exceeding the extent or value allowed by law for homesteads may be selected as a homestead. In order that a lot or tract adjoining that on which the dwelling is situated may be claimed as part of the homestead, it must be used in good faith for homestead purposes.
DONALD MacDONALD IV | |
United States Bankruptcy Judge |