By Ian M. Duncan, Legislative Chair

California Association of Legal Document Assistants

What is a Homestead Declaration?

A homestead declaration is a written statement, made under penalty of perjury, that claims a particular “dwelling” (i.e. a house, condominium, boat, or similar property) as the owner’s principal place of residence. In order to protect a home against a loss to creditors, a homestead declaration must be (1) signed by a homeowner, (2) acknowledged (i.e. notarized) by a notary, and (3) recorded.

A properly prepared and recorded homestead declaration may immunize the home (and the land on which it is situated) from many, but not all, legal enforcement measures.

Any non-attorney who prepares a homestead declaration is referred to as a “Homestead Filing Service”.  These rules apply to Legal Document Assistants.

LDAs Should be Very Careful When Someone Requests a Homestead Declaration

The law protects individuals who request homestead filing services by imposing the following broad regulations:

(1) Strict guidelines are put in place to protect against certain misstatements at risk within the Homestead Filing service process

(2) Homestead Filing Services require certain disclosures

(3) There are specific definitions about the minimum kinds of services that must be provided by anyone who solicits Homestead filing services and

(4) There are limits on the fees that can be charged in providing Homestead Filing services (Bus. & Prof. Code         §17537.6 (a-d)).

Fees

The law limits the fee that can be charged for the services to $25.00, including notary and recording fees. Considering the cost of the recording is somewhere in the neighborhood of $15.00, the Legal Document Assistant who prepares the homestead declaration will be making around $10 if you provide notarization, or around $5 if you do not.

Furthermore, this fee can not be charged until after the homestead declaration is recorded.

Recording

When preparing a homestead declaration, the Homestead Filing Service must record the notarized homestead declaration within 10 days.  This means that the LDA must be the one to ensure the document is recorded, even if this is not a service you usually offer to people.

Required Disclosure

To ensure that a homeowner is not mislead about the need for filing a homestead declaration or the protection that this provides, a homestead filing service must include a prescribed disclosure at the top of each page of every advertisement or promotional material before the time when the owner is obligated to pay for the service. In the case of an oral solicitation, the disclosure must be recited at the beginning of each presentation and delivered in printed form before each person who responds to the oral solicitation is obligated to pay for the service.

The disclosure must be made in 12 point boldface type and enclosed by a box formed by a heavy line as follows:

THIS HOMESTEAD FILING SERVICE IS NOT ASSOCIATED WITH ANY GOVERNMENT AGENCY.

YOU DO NOT HAVE TO RECORD A HOMESTEAD DECLARATION.

RECORDING A HOMESTEAD DECLARATION DOES NOT PROTECT YOUR HOME AGAINST FORCED SALE BY A CREDITOR. YOU MAY WISH TO CONSULT A LAWYER ABOUT THE BENEFITS OF RECORDING A HOMESTEAD DECLARATION.

IF YOU WANT TO RECORD A HOMESTEAD, YOU CAN FILL OUT A HOMESTEAD DECLARATION FORM BY YOURSELF, HAVE YOUR SIGNATURE NOTARIZED AND HAVE THE FORM RECORDED BY THE COUNTY RECORDER.

You can find more information on this subject here: http://www.dca.ca.gov/publications/legal_guides/h-1.shtml