Senate Bill No. 83–Senator O'Connell
February 6, 2001
____________
Referred to Committee on Judiciary
SUMMARY—Increases amount of homestead exemption. (BDR 10‑4)
FISCAL NOTE: Effect on Local Government: No.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along
left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to property; increasing the amount of the homestead exemption; exempting
from execution a greater amount of equity in certain dwellings; and providing
other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS
115.010 is hereby amended to read as follows:
115.010
1. The homestead is not subject to forced sale on execution or any
final process from any court, except as otherwise provided by subsections 2, 3
and 5.
2. The exemption provided in subsection 1
extends only to that amount of equity in the property held by the claimant
which does not exceed [$125,000] $160,000 in value, unless allodial title has
been established and not relinquished, in which case the exemption provided in
subsection 1 extends to all equity in the dwelling, its appurtenances and the
land on which it is located.
3. Except as otherwise provided in subsection 4,
the exemption provided in subsection 1 does not extend to process to enforce
the payment of obligations contracted for the purchase of the property, or for
improvements made thereon, including any mechanic’s lien lawfully obtained, or
for legal taxes, or for:
(a) Any mortgage or deed of
trust thereon executed and given; or
(b) Any
lien to which prior consent has been given through the acceptance of property
subject to any recorded declaration of restrictions, deed restriction,
restrictive covenant or equitable servitude, specifically including any lien in
favor of an association pursuant to NRS 116.3116 or 117.070,
by both husband and wife, when that relation
exists.
4. If allodial title has been established and
not relinquished, the exemption provided in subsection 1 extends to process to
enforce the payment of obligations contracted for the purchase of the property,
and for improvements made thereon, including any mechanic’s lien lawfully
obtained, and for legal taxes levied by a state or local government, and for:
(a) Any mortgage or deed of
trust thereon; and
(b) Any
lien even if prior consent has been given through the acceptance of property
subject to any recorded declaration of restrictions, deed restriction,
restrictive covenant or equitable servitude, specifically including any lien in
favor of an association pursuant to NRS 116.3116 or 117.070,
unless a waiver for the
specific obligation to which the judgment relates has been executed by all
allodial titleholders of the property.
5. Establishment of allodial title does not
exempt the property from forfeiture pursuant to NRS 179.1156 to 179.119,
inclusive, or 207.350 to 207.520, inclusive.
6. Any declaration of homestead which has been
filed before October 1, [1995,] 2001, shall be deemed to have been amended on
that date by extending the homestead exemption commensurate with any increase
in the amount of equity held by the claimant in the property selected and
claimed for the exemption up to the amount permitted by law on that date, but
the increase does not impair the right of any creditor to execute upon the
property when that right existed before October 1, [1995.] 2001.
1-1 Sec. 2. NRS 115.050 is hereby
amended to read as follows:
1-2 115.050 1. Whenever execution has been issued against
the property
1-3 of a party claiming the
property as a homestead, and the creditor in the
1-4 judgment makes an oath
before the judge of the district court of the county
1-5 in which the property is
situated, that the amount of equity held by the
1-6 claimant in the property
exceeds, to the best of the creditor’s information
1-7 and belief, the sum of [$125,000,]
$160,000, the judge
shall, upon notice to
1-8 the debtor, appoint three
disinterested and competent persons as appraisers
1-9 to estimate and report as to
the amount of equity held by the claimant in the
1-10 property, and if the amount
of equity exceeds the sum of [$125,000,]
1-11 $160,000, determine whether the property can be divided so as to leave the
1-12 property subject to the
homestead exemption without material injury.
1-13 2. If it appears, upon the
report, to the satisfaction of the judge that the
1-14 property can be thus
divided, he shall order the excess to be sold under
1-15 execution. If it appears
that the property cannot be thus divided, and the
1-16 amount of equity held by the
claimant in the property exceeds the
1-17 exemption allowed by this
chapter, he shall order the entire property to be
1-18 sold, and out of the
proceeds the sum of [$125,000] $160,000 to be paid to
1-19 the defendant in execution,
and the excess to be applied to the satisfaction
1-20 on the execution. No bid under
[$125,000] $160,000 may be received by
1-21 the officer making the sale.
1-22 3. When the execution is
against a husband or wife, the judge may
1-23 direct the [$125,000]
$160,000 to be
deposited in court, to be paid out only
1-24 upon the joint receipt of
the husband and wife, and the deposit possesses all
1-25 the protection against legal
process and voluntary disposition by either
1-26 spouse as did the original
homestead.
2-1 Sec. 3. NRS 21.075 is hereby amended to
read as follows:
2-2 21.075 1. Execution on the writ of execution by levying
on the
2-3 property of the judgment
debtor may occur only if the sheriff serves the
2-4 judgment debtor with a
notice of the writ of execution pursuant to NRS
2-5 21.076 and a copy of the
writ. The notice must describe the types of
2-6 property exempt from
execution and explain the procedure for claiming
2-7 those exemptions in the
manner required in subsection 2. The clerk of the
2-8 court shall attach the
notice to the writ of execution at the time the writ is
2-9 issued.
2-10 2. The notice required
pursuant to subsection 1 must be substantially in
2-11 the following form:
2-12 NOTICE OF EXECUTION
2-13 YOUR PROPERTY IS BEING
ATTACHED OR
2-14 YOUR WAGES ARE BEING
GARNISHED
2-15 A court has determined that you owe money to
....................(name of
2-16 person), the judgment
creditor. He has begun the procedure to collect that
2-17 money by garnishing your
wages, bank account and other personal
2-18 property held by third
persons or by taking money or other property in your
2-19 possession.
2-20 Certain benefits and property owned by you may be exempt from
2-21 execution and may not be
taken from you. The following is a partial list of
2-22 exemptions:
2-23 1. Payments received under
the Social Security Act.
2-24 2. Payments for benefits or
the return of contributions under the public
2-25 employees’ retirement
system.
2-26 3. Payments for public
assistance granted through the welfare division
2-27 of the department of human
resources.
2-28 4. Proceeds from a policy
of life insurance.
2-29 5. Payments of benefits
under a program of industrial insurance.
2-30 6. Payments received as
unemployment compensation.
2-31 7. Veteran’s benefits.
2-32 8. A homestead in a
dwelling or a mobile home, not to exceed
2-33 [$125,000,] $160,000, unless:
2-34 (a) The judgment is for a medical bill, in which case all of the
primary
2-35 dwelling, including a mobile
or manufactured home, may be exempt.
2-36 (b) Allodial title has been established and not relinquished for
the
2-37 dwelling or mobile home, in
which case all of the dwelling or mobile home
2-38 and its appurtenances are
exempt, including the land on which they are
2-39 located, unless a valid
waiver executed pursuant to NRS 115.010 is
2-40 applicable to the judgment.
2-41 9. A vehicle, if your
equity in the vehicle is less than $4,500.
2-42 10. Seventy-five percent of
the take-home pay for any pay period,
2-43 unless the weekly take-home
pay is less than 30 times the federal minimum
2-44 wage, in which case the
entire amount may be exempt.
2-45 11. Money, not to exceed
$500,000 in present value, held for
2-46 retirement pursuant to
certain arrangements or plans meeting the
3-1 requirements for qualified
arrangements or plans of sections 401 et seq. of
3-2 the Internal Revenue Code , [(] 26 U.S.C. §§ 401 et seq. [).]
3-3 12. All money and other
benefits paid pursuant to the order of a court
3-4 of competent jurisdiction
for the support, education and maintenance of a
3-5 child, whether collected by
the judgment debtor or the state.
3-6 13. All money and other
benefits paid pursuant to the order of a court
3-7 of competent jurisdiction
for the support and maintenance of a former
3-8 spouse, including the amount
of any arrearages in the payment of such
3-9 support and maintenance to
which the former spouse may be entitled.
3-10 14. A vehicle for use by
you or your dependent which is specially
3-11 equipped or modified to
provide mobility for a person with a permanent
3-12 disability.
3-13 15. A prosthesis or any
equipment prescribed by a physician or dentist
3-14 for you or your dependent.
3-15 These exemptions may not
apply in certain cases such as a proceeding to
3-16 enforce a judgment for
support of a person or a judgment of foreclosure on
3-17 a mechanic’s lien. You
should consult an attorney immediately to assist
3-18 you in determining whether
your property or money is exempt from
3-19 execution. If you cannot
afford an attorney, you may be eligible for
3-20 assistance through
....................(name of organization in county providing
3-21 legal services to indigent
or elderly persons).
3-22 PROCEDURE FOR CLAIMING EXEMPT PROPERTY
3-23 If you believe that the money or property taken from you is exempt,
you
3-24 must complete and file with
the clerk of the court a notarized affidavit
3-25 claiming the exemption. A
copy of the affidavit must be served upon the
3-26 sheriff and the judgment
creditor within 8 days after the notice of execution
3-27 is mailed. The property must
be returned to you within 5 days after you file
3-28 the affidavit unless you or
the judgment creditor files a motion for a
3-29 hearing to determine the
issue of exemption. If this happens, a hearing will
3-30 be held to determine whether
the property or money is exempt. The motion
3-31 for the hearing to determine
the issue of exemption must be filed within 10
3-32 days after the affidavit
claiming exemption is filed. The hearing to
3-33 determine whether the
property or money is exempt must be held within 10
3-34 days after the motion for
the hearing is filed.
3-35 IF YOU DO NOT FILE THE
AFFIDAVIT WITHIN THE TIME
3-36 SPECIFIED, YOUR PROPERTY MAY
BE SOLD AND THE MONEY
3-37 GIVEN TO THE JUDGMENT
CREDITOR, EVEN IF THE PROPERTY
3-38 OR MONEY IS EXEMPT.
3-39 Sec. 4. NRS 21.090 is hereby amended to read as follows:
3-40 21.090 1. The following property is exempt from
execution, except
3-41 as otherwise specifically
provided in this section:
3-42 (a) Private libraries not to exceed $1,500 in value, and all family
3-43 pictures and keepsakes.
3-44 (b) Necessary household goods, as defined in 16 C.F.R. § 444.1(i)
as
3-45 that section existed on
January 1, 1987, and yard equipment, not to exceed
3-46 $3,000 in value, belonging
to the judgment debtor to be selected by him.
4-1 (c) Farm trucks, farm stock, farm tools, farm equipment, supplies
and
4-2 seed not to exceed $4,500 in
value, belonging to the judgment debtor to be
4-3 selected by him.
4-4 (d) Professional libraries, office equipment, office supplies and
the
4-5 tools, instruments and
materials used to carry on the trade of the judgment
4-6 debtor for the support of
himself and his family not to exceed $4,500 in
4-7 value.
4-8 (e) The cabin or dwelling of a miner or prospector, his cars,
implements
4-9 and appliances necessary for
carrying on any mining operations and his
4-10 mining claim actually worked
by him, not exceeding $4,500 in total value.
4-11 (f) Except as otherwise provided in paragraph (o), one vehicle if
the
4-12 judgment debtor’s equity
does not exceed $4,500 or the creditor is paid an
4-13 amount equal to any excess
above that equity.
4-14 (g) For any pay period, 75 percent of the disposable earnings of a
4-15 judgment debtor during that
period, or for each week of the period 30 times
4-16 the minimum hourly wage
prescribed by section 6(a)(1) of the federal Fair
4-17 Labor Standards Act of 1938 , 29 U.S.C § 206(a)(1),
and in effect at the
4-18 time the earnings are
payable, whichever is greater. Except as otherwise
4-19 provided in paragraphs (n),
(r) and (s), the exemption provided in this
4-20 paragraph does not apply in
the case of any order of a court of competent
4-21 jurisdiction for the support
of any person, any order of a court of
4-22 bankruptcy or of any debt
due for any state or federal tax. As used in this
4-23 paragraph, “disposable earnings”
means that part of the earnings of a
4-24 judgment debtor remaining
after the deduction from those earnings of any
4-25 amounts required by law, to
be withheld.
4-26 (h) All fire engines, hooks and ladders, with the carts, trucks and
4-27 carriages, hose, buckets,
implements and apparatus thereunto appertaining,
4-28 and all furniture and
uniforms of any fire company or department
4-29 organized under the laws of
this state.
4-30 (i) All arms, uniforms and accouterments required by law to be kept
by
4-31 any person, and also one
gun, to be selected by the debtor.
4-32 (j) All courthouses, jails, public offices and buildings, lots,
grounds and
4-33 personal property, the
fixtures, furniture, books, papers and appurtenances
4-34 belonging and pertaining to
the courthouse, jail and public offices
4-35 belonging to any county of
this state, all cemeteries, public squares, parks
4-36 and places, public
buildings, town halls, markets, buildings for the use of
4-37 fire departments and
military organizations, and the lots and grounds
4-38 thereto belonging and
appertaining, owned or held by any town or
4-39 incorporated city, or
dedicated by the town or city to health, ornament or
4-40 public use, or for the use
of any fire or military company organized under
4-41 the laws of this state and
all lots, buildings and other school property
4-42 owned by a school district
and devoted to public school purposes.
4-43 (k) All money, benefits, privileges or immunities accruing or in
any
4-44 manner growing out of any
life insurance, if the annual premium paid does
4-45 not exceed $1,000. If the
premium exceeds that amount, a similar
4-46 exemption exists which bears
the same proportion to the money, benefits,
4-47 privileges and immunities so
accruing or growing out of the insurance that
4-48 the $1,000 bears to the
whole annual premium paid.
5-1 (l) The homestead as provided for by law, including a homestead for
5-2 which allodial title has
been established and not relinquished and for which
5-3 a waiver executed pursuant
to NRS 115.010 is not applicable.
5-4 (m) The dwelling of the judgment debtor occupied as a home for
5-5 himself and family, where
the amount of equity held by the judgment
5-6 debtor in the home does not
exceed [$125,000] $160,000 in value and the
5-7 dwelling is situate upon
lands not owned by him.
5-8 (n) All property in this state of the judgment debtor where the
judgment
5-9 is in favor of any state for
failure to pay that state’s income tax on benefits
5-10 received from a pension or
other retirement plan.
5-11 (o) Any vehicle owned by the judgment debtor for use by him or his
5-12 dependent that is equipped
or modified to provide mobility for a person
5-13 with a permanent disability.
5-14 (p) Any prosthesis or equipment prescribed by a physician or
dentist for
5-15 the judgment debtor or a
dependent of the debtor.
5-16 (q) Money, not to exceed $500,000 in present value, held in:
5-17 (1) An individual retirement arrangement which conforms with the
5-18 applicable limitations and
requirements of 26 U.S.C. § 408;
5-19 (2) A written simplified employee pension plan which conforms
with
5-20 the applicable limitations
and requirements of 26 U.S.C. § 408;
5-21 (3) A cash or deferred arrangement which is a qualified plan
pursuant
5-22 to the Internal Revenue
Code; and
5-23 (4) A trust forming part of a stock bonus, pension or
profit-sharing
5-24 plan which is a qualified
plan pursuant to sections 401 et seq. of the
5-25 Internal Revenue Code , [(] 26 U.S.C. §§ 401 et seq. [).]
5-26 (r) All money and other benefits paid pursuant to the order of a
court of
5-27 competent jurisdiction for
the support, education and maintenance of a
5-28 child, whether collected by
the judgment debtor or the state.
5-29 (s) All money and other benefits paid pursuant to the order of a
court of
5-30 competent jurisdiction for
the support and maintenance of a former spouse,
5-31 including the amount of any
arrearages in the payment of such support and
5-32 maintenance to which the
former spouse may be entitled.
5-33 2. Except as otherwise
provided in NRS 115.010, no article or species
5-34 of property mentioned in
this section is exempt from execution issued upon
5-35 a judgment to recover for
its price, or upon a judgment of foreclosure of a
5-36 mortgage or other lien
thereon.
5-37 3. Any exemptions specified
in subsection (d) of section 522 of the
5-38 Bankruptcy Act of 1978 [(92 Stat. 2586)]
, 11 U.S.C § 522(d), do
not apply
5-39 to property owned by a
resident of this state unless conferred also by
5-40 subsection 1, as limited by
subsection 2, of this section.
5-41 Sec. 5. NRS 31.045 is hereby amended to read as follows:
5-42 31.045 1. Execution on the writ of attachment by
attaching property
5-43 of the defendant may occur
only if:
5-44 (a) The judgment creditor serves the defendant with notice of the
5-45 execution when the notice of
the hearing is served pursuant to NRS 31.013;
5-46 or
5-47 (b) Pursuant to an ex parte hearing, the sheriff serves upon the
judgment
5-48 debtor notice of the
execution and a copy of the writ at the same time and
5-49 in the same manner as set
forth in NRS 21.076.
6-1 If the attachment occurs
pursuant to an ex parte hearing, the clerk of the
6-2 court shall attach the
notice to the writ of attachment at the time the writ is
6-3 issued.
6-4 2. The notice required
pursuant to subsection 1 must be substantially in
6-5 the following form:
6-6 NOTICE OF EXECUTION
6-7 YOUR PROPERTY IS BEING
ATTACHED OR
6-8 YOUR WAGES ARE BEING
GARNISHED
6-9 Plaintiff, .................... (name of person), alleges that you
owe him
6-10 money. He has begun the
procedure to collect that money. To secure
6-11 satisfaction of judgment , the court has ordered
the garnishment of your
6-12 wages, bank account or other
personal property held by third persons or the
6-13 taking of money or other
property in your possession.
6-14 Certain benefits and property owned by you may be exempt from
6-15 execution and may not be
taken from you. The following is a partial list of
6-16 exemptions:
6-17 1. Payments received under
the Social Security Act.
6-18 2. Payments for benefits or
the return of contributions under the public
6-19 employees’ retirement
system.
6-20 3. Payments for public
assistance granted through the welfare division
6-21 of the department of human
resources.
6-22 4. Proceeds from a policy
of life insurance.
6-23 5. Payments of benefits
under a program of industrial insurance.
6-24 6. Payments received as
unemployment compensation.
6-25 7. Veteran’s benefits.
6-26 8. A homestead in a
dwelling or a mobile home, not to exceed
6-27 [$125,000,] $160,000, unless:
6-28 (a) The judgment is for a medical bill, in which case all of the
primary
6-29 dwelling, including a mobile
or manufactured home, may be exempt.
6-30 (b) Allodial title has been established and not relinquished for
the
6-31 dwelling or mobile home, in
which case all of the dwelling or mobile home
6-32 and its appurtenances are
exempt, including the land on which they are
6-33 located, unless a valid
waiver executed pursuant to NRS 115.010 is
6-34 applicable to the judgment.
6-35 9. A vehicle, if your
equity in the vehicle is less than $4,500.
6-36 10. Seventy-five percent of
the take-home pay for any pay period,
6-37 unless the weekly take-home
pay is less than 30 times the federal minimum
6-38 wage, in which case the
entire amount may be exempt.
6-39 11. Money, not to exceed
$500,000 in present value, held for
6-40 retirement pursuant to
certain arrangements or plans meeting the
6-41 requirements for qualified
arrangements or plans of sections 401 et seq. of
6-42 the Internal Revenue Code , [(] 26 U.S.C. §§ 401 et seq. [).]
6-43 12. All money and other
benefits paid pursuant to the order of a court
6-44 of competent jurisdiction
for the support, education and maintenance of a
6-45 child, whether collected by
the judgment debtor or the state.
7-1 13. All money and other
benefits paid pursuant to the order of a court
7-2 of competent jurisdiction
for the support and maintenance of a former
7-3 spouse, including the amount
of any arrearages in the payment of such
7-4 support and maintenance to
which the former spouse may be entitled.
7-5 14. A vehicle for use by
you or your dependent which is specially
7-6 equipped or modified to
provide mobility for a person with a permanent
7-7 disability.
7-8 15. A prosthesis or any
equipment prescribed by a physician or dentist
7-9 for you or your dependent.
7-10 These exemptions may not
apply in certain cases such as proceedings to
7-11 enforce a judgment for
support of a child or a judgment of foreclosure on a
7-12 mechanic’s lien. You should
consult an attorney immediately to assist you
7-13 in determining whether your
property or money is exempt from execution.
7-14 If you cannot afford an
attorney, you may be eligible for assistance through
7-15 .................... (name
of organization in county providing legal services to
7-16 the indigent or elderly
persons).
7-17 PROCEDURE FOR CLAIMING EXEMPT PROPERTY
7-18 If you believe that the money or property taken from you is exempt
or
7-19 necessary for the support of
you or your family, you must file with the
7-20 clerk of the court on a form
provided by the clerk a notarized affidavit
7-21 claiming the exemption. A
copy of the affidavit must be served upon the
7-22 sheriff and the judgment
creditor within 8 days after the notice of execution
7-23 is mailed. The property must
be returned to you within 5 days after you file
7-24 the affidavit unless the
judgment creditor files a motion for a hearing to
7-25 determine the issue of exemption.
If this happens, a hearing will be held to
7-26 determine whether the
property or money is exempt. The hearing must be
7-27 held within 10 days after
the motion for a hearing is filed.
7-28 IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE TIME
7-29 SPECIFIED, YOUR PROPERTY MAY
BE SOLD AND THE MONEY
7-30 GIVEN TO THE JUDGMENT
CREDITOR, EVEN IF THE PROPERTY
7-31 OR MONEY IS EXEMPT.
7-32 If you received this notice with a notice of a hearing for
attachment and
7-33 you believe that the money
or property which would be taken from you by
7-34 a writ of attachment is
exempt or necessary for the support of you or your
7-35 family, you are entitled to
describe to the court at the hearing why you
7-36 believe your property is
exempt. You may also file a motion with the court
7-37 for a discharge of the writ
of attachment. You may make that motion any
7-38 time before trial. A hearing
will be held on that motion.
7-39 IF YOU DO NOT FILE THE MOTION BEFORE THE TRIAL, YOUR
7-40 PROPERTY MAY BE SOLD AND THE
MONEY GIVEN TO THE
7-41 PLAINTIFF, EVEN IF THE
PROPERTY OR MONEY IS EXEMPT OR
7-42 NECESSARY FOR THE SUPPORT OF
YOU OR YOUR FAMILY.
7-43 H