A homestead protects the equity in a person’s qualified property from attachment, execution and forced sale by creditors. The Arizona homestead exemption is governed by A.R.S. § 33-1101, which lays out the types of properties that qualify as homesteads, as well as the requirements for establishing a homestead exemption. The statute provides that any person over 18, married or single, who resides in Arizona may hold a homestead. The homestead can be a person’s interest in real property, a condominium or cooperative, a mobile home, or a mobile home plus the land on which it is located.
The recent changes to the homestead exemption law, which went into effect on January 1, 2022, are important to note. HB 2617 increased the homestead exemption from $250,000 to $400,000, but also made it easier for creditors to attach judgment liens to homestead property. Under the new law, a recorded judgment creates a lien on the homestead property, and the judgment debtor cannot receive any cash proceeds from a refinance until the judgment is paid.
However, in the event of the sale of the homestead, the exemption automatically attaches to the sale proceeds and continues for 18 months after the sale of the homestead or until the seller established a new homestead with the proceeds, whichever occurs first.
In Arizona, the homeowner does not need to record any document to “elect” a homestead; the exemption is automatic. However, if a person has more than one property that could qualify as a homestead, a creditor can demand that the person designate which property is protected. The person must then either record a homestead exemption with the county recorder or send a certified letter to the creditor.
Certain liens are not subject to the homestead exemption, including:
- a consensual lien (such as a mortgage or deed of trust)
- a mechanic’s or materialman’s lien
- a lien for child support arrearages or spousal maintenance arrearages, or
- to the extent that a judgment or other lien may be satisfied from the equity of the debtor exceeding the homestead exemption (i.e., equity in excess of $250,000).
In the case of In re McLauchlan, 502 P.3d 975 (Ariz. 2022), the United States Bankruptcy Court for the District of Arizona recently held that a recorded judgment lien attaches to a homestead property where the judgment debtor has equity in excess of the amount exempt under Arizona law.
Contact our office at 480-314-3304 if you have any questions about this topic or any other real estate or business matter.
Disclaimer: Laws change constantly. Specific legal advice should be obtained regarding any legal matter. The information contained on this website does not constitute legal advice and no attorney-client relationship is created.
