Phelps v. Loop

MOORE, P. J.

Defendants are husband and wife. They own and, subsequent to its acquisition, have occupied, Lot 6, Block 5, City Center Tract of Los Angeles County. Having notice that plaintiff as their judgment creditor intended to have execution levied upon the lot and its building to satisfy a judgment entered some eight years before, defendants filed their declaration on June 24, 1940, designating Lot 6 as their homestead. Thereafter plaintiff filed this action alleging that such declaration should be annulled on the grounds that defendants incidentally occupy only one flat of the 18 apartments and flats of a building adapted to the business of hiring space to the public and that such flat is not susceptible of being set apart as a homestead.

The court found the facts as follows: prior to acquiring Lot 6 defendants owned an equity in a dwelling house consisting of three bedrooms on one acre of land in Canoga Park, of the same county; they exchanged the Canoga Park dwelling for an equity in Lot 6; the house on Lot 6 is a 35-year-old, three-story, wooden-frame building containing six double and three single apartments and nine light-house-keeping rooms; one of the double apartments and occasionally one of the lighthouse-keeping rooms are occupied by defendants as their home; the remainder of the house is kept available for renting; at the time of recording the declaration of homestead and subsequent thereto defendants resided on the property and used it as their dwelling house and home, which was their primary use of it; Mrs. Loop, as opportunity offered, rented apartments and rooms in order to help maintain the home; Lot 6 is 50 by 125 feet; the building is not divisible in any way; it is the only home of defendants. From such facts the court concluded and adjudged that the declaration of homestead filed by defendants constitutes a valid and subsisting homestead on the premises.

Plaintiff assigns as error the holding of the trial court that defendants are entitled to a homestead exemption on an 18-flat apartment building. She contends that the premises are primarily adapted to and used as business property, and the mere fact that defendants make their home in a portion of the premises does not entitle them to declare the property as a homestead and thereby exempt it from execution.

[334]

The weight of authority is directly at variance with appellant’s contention. Where the building occupied by a family is suitable for a home and is used for that purpose, the owner is not to be deprived of his homestead rights merely because a part of the building is used for supplementing the family income. If it be determined that the very business carried on by the homesteader is for the purpose of maintaining the home, the fact of the conduct of such other activity does not defeat the owner’s right to designate the property in his declaration. Using a building so occupied, even chiefly for business purposes or renting a part of it, is not inconsistent with the homestead right. Where premises are acquired for, and are actually occupied as, the bona fide home of a family, the head may select it as a homestead even though incidentally a major portion of the building may be used by him for deriving revenue. His conduct of business there is an incidental and subordinate purpose. Under such circumstances the business is carried on to enable the family to maintain a home. Although only one apartment in a building is dedicated to residence purposes, yet if it is actually occupied by the owner and his family and if such occupancy is not merely incidental to a business conducted there, the building and the land on which it is situated may be selected as a homestead.