(REPRINTED WITH ADOPTED AMENDMENTS)

 

Senate Bill No. 83–Senator O'Connell

 

February 6, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY¾Increases amount of homestead exemption. (BDR 10‑4)

 

FISCAL NOTE:                     Effect on Local Government: No.

                             Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

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:

 

1-1    Section 1.  NRS 115.010 is hereby amended to read as follows:

1-2    115.010  1.  The homestead is not subject to forced sale on execution

1-3  or any final process from any court, except as otherwise provided by

1-4  subsections 2, 3 and 5.

1-5    2.  The exemption provided in subsection 1 extends only to that amount

1-6  of equity in the property held by the claimant which does not exceed

1-7  [$125,000] $160,000 in value, unless allodial title has been established and

1-8  not relinquished, in which case the exemption provided in subsection 1

1-9  extends to all equity in the dwelling, its appurtenances and the land on

1-10  which it is located.

1-11    3.  Except as otherwise provided in subsection 4, the exemption

1-12  provided in subsection 1 does not extend to process to enforce the payment

1-13  of obligations contracted for the purchase of the property, or for

1-14  improvements made thereon, including any mechanic’s lien lawfully

1-15  obtained, or for legal taxes, or for:

1-16    (a) Any mortgage or deed of trust thereon executed and given; or

1-17    (b) Any lien to which prior consent has been given through the

1-18  acceptance of property subject to any recorded declaration of restrictions,

1-19  deed restriction, restrictive covenant or equitable servitude, specifically

1-20  including any lien in favor of an association pursuant to NRS 116.3116 or

1-21  117.070,

1-22  by both husband and wife, when that relation exists.

2-1    4.  If allodial title has been established and not relinquished, the

2-2  exemption provided in subsection 1 extends to process to enforce the

2-3  payment of obligations contracted for the purchase of the property, and for

2-4  improvements made thereon, including any mechanic’s lien lawfully

2-5  obtained, and for legal taxes levied by a state or local government, and for:

2-6    (a) Any mortgage or deed of trust thereon; and

2-7    (b) Any lien even if prior consent has been given through the

2-8  acceptance of property subject to any recorded declaration of restrictions,

2-9  deed restriction, restrictive covenant or equitable servitude, specifically

2-10  including any lien in favor of an association pursuant to NRS 116.3116 or

2-11  117.070,

2-12  unless a waiver for the specific obligation to which the judgment relates

2-13  has been executed by all allodial titleholders of the property.

2-14    5.  Establishment of allodial title does not exempt the property from

2-15  forfeiture pursuant to NRS 179.1156 to 179.119, inclusive, or 207.350 to

2-16  207.520, inclusive.

2-17    6.  Any declaration of homestead which has been filed before October

2-18  1, [1995,] 2001, shall be deemed to have been amended on that date by

2-19  extending the homestead exemption commensurate with any increase in the

2-20  amount of equity held by the claimant in the property selected and claimed

2-21  for the exemption up to the amount permitted by law on that date, but the

2-22  increase does not impair the right of any creditor to execute upon the

2-23  property when that right existed before October 1, [1995.] 2001.

2-24    Sec. 2.  NRS 115.050 is hereby amended to read as follows:

2-25    115.050  1.  Whenever execution has been issued against the property

2-26  of a party claiming the property as a homestead, and the creditor in the

2-27  judgment makes an oath before the judge of the district court of the county

2-28  in which the property is situated, that the amount of equity held by the

2-29  claimant in the property exceeds, to the best of the creditor’s information

2-30  and belief, the sum of [$125,000,] $160,000, the judge shall, upon notice to

2-31  the debtor, appoint three disinterested and competent persons as appraisers

2-32  to estimate and report as to the amount of equity held by the claimant in the

2-33  property, and if the amount of equity exceeds the sum of [$125,000,]

2-34  $160,000, determine whether the property can be divided so as to leave the

2-35  property subject to the homestead exemption without material injury.

2-36    2.  If it appears, upon the report, to the satisfaction of the judge that the

2-37  property can be thus divided, he shall order the excess to be sold under

2-38  execution. If it appears that the property cannot be thus divided, and the

2-39  amount of equity held by the claimant in the property exceeds the

2-40  exemption allowed by this chapter, he shall order the entire property to be

2-41  sold, and out of the proceeds the sum of [$125,000] $160,000 to be paid to

2-42  the defendant in execution, and the excess to be applied to the satisfaction

2-43  on the execution. No bid under [$125,000] $160,000 may be received by

2-44  the officer making the sale.

2-45    3.  When the execution is against a husband or wife, the judge may

2-46  direct the [$125,000] $160,000 to be deposited in court, to be paid out only

2-47  upon the joint receipt of the husband and wife, and the deposit possesses all

2-48  the protection against legal process and voluntary disposition by either

2-49  spouse as did the original homestead.

3-1    Sec. 3.  NRS 21.075 is hereby amended to read as follows:

3-2    21.075  1.  Execution on the writ of execution by levying on the

3-3  property of the judgment debtor may occur only if the sheriff serves the

3-4  judgment debtor with a notice of the writ of execution pursuant to NRS

3-5  21.076 and a copy of the writ. The notice must describe the types of

3-6  property exempt from execution and explain the procedure for claiming

3-7  those exemptions in the manner required in subsection 2. The clerk of the

3-8  court shall attach the notice to the writ of execution at the time the writ is

3-9  issued.

3-10    2.  The notice required pursuant to subsection 1 must be substantially in

3-11  the following form:

 

3-12  NOTICE OF EXECUTION

 

3-13  YOUR PROPERTY IS BEING ATTACHED OR

3-14  YOUR WAGES ARE BEING GARNISHED

 

3-15    A court has determined that you owe money to ....................(name of

3-16  person), the judgment creditor. He has begun the procedure to collect that

3-17  money by garnishing your wages, bank account and other personal

3-18  property held by third persons or by taking money or other property in your

3-19  possession.

3-20    Certain benefits and property owned by you may be exempt from

3-21  execution and may not be taken from you. The following is a partial list of

3-22  exemptions:

3-23    1.  Payments received under the Social Security Act.

3-24    2.  Payments for benefits or the return of contributions under the public

3-25  employees’ retirement system.

3-26    3.  Payments for public assistance granted through the welfare division

3-27  of the department of human resources.

3-28    4.  Proceeds from a policy of life insurance.

3-29    5.  Payments of benefits under a program of industrial insurance.

3-30    6.  Payments received as unemployment compensation.

3-31    7.  Veteran’s benefits.

3-32    8.  A homestead in a dwelling or a mobile home, not to exceed

3-33  [$125,000,] $160,000, unless:

3-34    (a) The judgment is for a medical bill, in which case all of the primary

3-35  dwelling, including a mobile or manufactured home, may be exempt.

3-36    (b) Allodial title has been established and not relinquished for the

3-37  dwelling or mobile home, in which case all of the dwelling or mobile home

3-38  and its appurtenances are exempt, including the land on which they are

3-39  located, unless a valid waiver executed pursuant to NRS 115.010 is

3-40  applicable to the judgment.

3-41    9.  A vehicle, if your equity in the vehicle is less than $4,500.

3-42    10.  Seventy-five percent of the take-home pay for any pay period,

3-43  unless the weekly take-home pay is less than 30 times the federal minimum

3-44  wage, in which case the entire amount may be exempt.

3-45    11.  Money, not to exceed $500,000 in present value, held for

3-46  retirement pursuant to certain arrangements or plans meeting the

4-1  requirements for qualified arrangements or plans of sections 401 et seq. of

4-2  the Internal Revenue Code , [(]26 U.S.C. §§ 401 et seq.[).]

4-3    12.  All money and other benefits paid pursuant to the order of a court

4-4  of competent jurisdiction for the support, education and maintenance of a

4-5  child, whether collected by the judgment debtor or the state.

4-6    13.  All money and other benefits paid pursuant to the order of a court

4-7  of competent jurisdiction for the support and maintenance of a former

4-8  spouse, including the amount of any arrearages in the payment of such

4-9  support and maintenance to which the former spouse may be entitled.

4-10    14.  A vehicle for use by you or your dependent which is specially

4-11  equipped or modified to provide mobility for a person with a permanent

4-12  disability.

4-13    15.  A prosthesis or any equipment prescribed by a physician or dentist

4-14  for you or your dependent.

4-15  These exemptions may not apply in certain cases such as a proceeding to

4-16  enforce a judgment for support of a person or a judgment of foreclosure on

4-17  a mechanic’s lien. You should consult an attorney immediately to assist

4-18  you in determining whether your property or money is exempt from

4-19  execution. If you cannot afford an attorney, you may be eligible for

4-20  assistance through ....................(name of organization in county providing

4-21  legal services to indigent or elderly persons).

 

4-22  PROCEDURE FOR CLAIMING EXEMPT PROPERTY

 

4-23    If you believe that the money or property taken from you is exempt, you

4-24  must complete and file with the clerk of the court a notarized affidavit

4-25  claiming the exemption. A copy of the affidavit must be served upon the

4-26  sheriff and the judgment creditor within 8 days after the notice of execution

4-27  is mailed. The property must be returned to you within 5 days after you file

4-28  the affidavit unless you or the judgment creditor files a motion for a

4-29  hearing to determine the issue of exemption. If this happens, a hearing will

4-30  be held to determine whether the property or money is exempt. The motion

4-31  for the hearing to determine the issue of exemption must be filed within 10

4-32  days after the affidavit claiming exemption is filed. The hearing to

4-33  determine whether the property or money is exempt must be held within 10

4-34  days after the motion for the hearing is filed.

 

4-35    IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE TIME

4-36  SPECIFIED, YOUR PROPERTY MAY BE SOLD AND THE MONEY

4-37  GIVEN TO THE JUDGMENT CREDITOR, EVEN IF THE PROPERTY

4-38  OR MONEY IS EXEMPT.

 

4-39    Sec. 4.  NRS 21.090 is hereby amended to read as follows:

4-40    21.090  1.  The following property is exempt from execution, except

4-41  as otherwise specifically provided in this section:

 

 

 

5-1    (a) Private libraries not to exceed $1,500 in value, and all family

5-2  pictures and keepsakes.

5-3    (b) Necessary household goods, as defined in 16 C.F.R. § 444.1(i) as

5-4  that section existed on January 1, 1987, and yard equipment, not to exceed

5-5  $3,000 in value, belonging to the judgment debtor to be selected by him.

5-6    (c) Farm trucks, farm stock, farm tools, farm equipment, supplies and

5-7  seed not to exceed $4,500 in value, belonging to the judgment debtor to be

5-8  selected by him.

5-9    (d) Professional libraries, office equipment, office supplies and the

5-10  tools, instruments and materials used to carry on the trade of the judgment

5-11  debtor for the support of himself and his family not to exceed $4,500 in

5-12  value.

5-13    (e) The cabin or dwelling of a miner or prospector, his cars, implements

5-14  and appliances necessary for carrying on any mining operations and his

5-15  mining claim actually worked by him, not exceeding $4,500 in total value.

5-16    (f) Except as otherwise provided in paragraph (o), one vehicle if the

5-17  judgment debtor’s equity does not exceed $4,500 or the creditor is paid an

5-18  amount equal to any excess above that equity.

5-19    (g) For any pay period, 75 percent of the disposable earnings of a

5-20  judgment debtor during that period, or for each week of the period 30 times

5-21  the minimum hourly wage prescribed by section 6(a)(1) of the federal Fair

5-22  Labor Standards Act of 1938 , 29 U.S.C § 206(a)(1), and in effect at the

5-23  time the earnings are payable, whichever is greater. Except as otherwise

5-24  provided in paragraphs (n), (r) and (s), the exemption provided in this

5-25  paragraph does not apply in the case of any order of a court of competent

5-26  jurisdiction for the support of any person, any order of a court of

5-27  bankruptcy or of any debt due for any state or federal tax. As used in this

5-28  paragraph, “disposable earnings” means that part of the earnings of a

5-29  judgment debtor remaining after the deduction from those earnings of any

5-30  amounts required by law, to be withheld.

5-31    (h) All fire engines, hooks and ladders, with the carts, trucks and

5-32  carriages, hose, buckets, implements and apparatus thereunto appertaining,

5-33  and all furniture and uniforms of any fire company or department

5-34  organized under the laws of this state.

5-35    (i) All arms, uniforms and accouterments required by law to be kept by

5-36  any person, and also one gun, to be selected by the debtor.

5-37    (j) All courthouses, jails, public offices and buildings, lots, grounds and

5-38  personal property, the fixtures, furniture, books, papers and appurtenances

5-39  belonging and pertaining to the courthouse, jail and public offices

5-40  belonging to any county of this state, all cemeteries, public squares, parks

5-41  and places, public buildings, town halls, markets, buildings for the use of

5-42  fire departments and military organizations, and the lots and grounds

5-43  thereto belonging and appertaining, owned or held by any town or

5-44  incorporated city, or dedicated by the town or city to health, ornament or

5-45  public use, or for the use of any fire or military company organized under

5-46  the laws of this state and all lots, buildings and other school property

5-47  owned by a school district and devoted to public school purposes.

 

 

6-1    (k) All money, benefits, privileges or immunities accruing or in any

6-2  manner growing out of any life insurance, if the annual premium paid does

6-3  not exceed $1,000. If the premium exceeds that amount, a similar

6-4  exemption exists which bears the same proportion to the money, benefits,

6-5  privileges and immunities so accruing or growing out of the insurance that

6-6  the $1,000 bears to the whole annual premium paid.

6-7    (l) The homestead as provided for by law, including a homestead for

6-8  which allodial title has been established and not relinquished and for which

6-9  a waiver executed pursuant to NRS 115.010 is not applicable.

6-10    (m) The dwelling of the judgment debtor occupied as a home for

6-11  himself and family, where the amount of equity held by the judgment

6-12  debtor in the home does not exceed [$125,000] $160,000 in value and the

6-13  dwelling is situate upon lands not owned by him.

6-14    (n) All property in this state of the judgment debtor where the judgment

6-15  is in favor of any state for failure to pay that state’s income tax on benefits

6-16  received from a pension or other retirement plan.

6-17    (o) Any vehicle owned by the judgment debtor for use by him or his

6-18  dependent that is equipped or modified to provide mobility for a person

6-19  with a permanent disability.

6-20    (p) Any prosthesis or equipment prescribed by a physician or dentist for

6-21  the judgment debtor or a dependent of the debtor.

6-22    (q) Money, not to exceed $500,000 in present value, held in:

6-23      (1) An individual retirement arrangement which conforms with the

6-24  applicable limitations and requirements of 26 U.S.C. § 408;

6-25      (2) A written simplified employee pension plan which conforms with

6-26  the applicable limitations and requirements of 26 U.S.C. § 408;

6-27      (3) A cash or deferred arrangement which is a qualified plan pursuant

6-28  to the Internal Revenue Code; and

6-29      (4) A trust forming part of a stock bonus, pension or profit-sharing

6-30  plan which is a qualified plan pursuant to sections 401 et seq. of the

6-31  Internal Revenue Code , [(]26 U.S.C. §§ 401 et seq.[).]

6-32    (r) All money and other benefits paid pursuant to the order of a court of

6-33  competent jurisdiction for the support, education and maintenance of a

6-34  child, whether collected by the judgment debtor or the state.

6-35    (s) All money and other benefits paid pursuant to the order of a court of

6-36  competent jurisdiction for the support and maintenance of a former spouse,

6-37  including the amount of any arrearages in the payment of such support and

6-38  maintenance to which the former spouse may be entitled.

6-39    2.  Except as otherwise provided in NRS 115.010, no article or species

6-40  of property mentioned in this section is exempt from execution issued upon

6-41  a judgment to recover for its price, or upon a judgment of foreclosure of a

6-42  mortgage or other lien thereon.

6-43    3.  Any exemptions specified in subsection (d) of section 522 of the

6-44  Bankruptcy Act of 1978 [(92 Stat. 2586)] , 11 U.S.C § 522(d), do not apply

6-45  to property owned by a resident of this state unless conferred also by

6-46  subsection 1, as limited by subsection 2, of this section.

6-47    Sec. 5.  NRS 31.045 is hereby amended to read as follows:

6-48    31.045  1.  Execution on the writ of attachment by attaching property

6-49  of the defendant may occur only if:

7-1    (a) The judgment creditor serves the defendant with notice of the

7-2  execution when the notice of the hearing is served pursuant to NRS 31.013;

7-3  or

7-4    (b) Pursuant to an ex parte hearing, the sheriff serves upon the judgment

7-5  debtor notice of the execution and a copy of the writ at the same time and

7-6  in the same manner as set forth in NRS 21.076.

7-7  If the attachment occurs pursuant to an ex parte hearing, the clerk of the

7-8  court shall attach the notice to the writ of attachment at the time the writ is

7-9  issued.

7-10    2.  The notice required pursuant to subsection 1 must be substantially in

7-11  the following form:

 

7-12  NOTICE OF EXECUTION

 

7-13  YOUR PROPERTY IS BEING ATTACHED OR

7-14  YOUR WAGES ARE BEING GARNISHED

 

7-15    Plaintiff, .................... (name of person), alleges that you owe him

7-16  money. He has begun the procedure to collect that money. To secure

7-17  satisfaction of judgment , the court has ordered the garnishment of your

7-18  wages, bank account or other personal property held by third persons or the

7-19  taking of money or other property in your possession.

7-20    Certain benefits and property owned by you may be exempt from

7-21  execution and may not be taken from you. The following is a partial list of

7-22  exemptions:

7-23    1.  Payments received under the Social Security Act.

7-24    2.  Payments for benefits or the return of contributions under the public

7-25  employees’ retirement system.

7-26    3.  Payments for public assistance granted through the welfare division

7-27  of the department of human resources.

7-28    4.  Proceeds from a policy of life insurance.

7-29    5.  Payments of benefits under a program of industrial insurance.

7-30    6.  Payments received as unemployment compensation.

7-31    7.  Veteran’s benefits.

7-32    8.  A homestead in a dwelling or a mobile home, not to exceed

7-33  [$125,000,] $160,000, unless:

7-34    (a) The judgment is for a medical bill, in which case all of the primary

7-35  dwelling, including a mobile or manufactured home, may be exempt.

7-36    (b) Allodial title has been established and not relinquished for the

7-37  dwelling or mobile home, in which case all of the dwelling or mobile home

7-38  and its appurtenances are exempt, including the land on which they are

7-39  located, unless a valid waiver executed pursuant to NRS 115.010 is

7-40  applicable to the judgment.

7-41    9.  A vehicle, if your equity in the vehicle is less than $4,500.

7-42    10.  Seventy-five percent of the take-home pay for any pay period,

7-43  unless the weekly take-home pay is less than 30 times the federal minimum

7-44  wage, in which case the entire amount may be exempt.

 

 

8-1    11.  Money, not to exceed $500,000 in present value, held for

8-2  retirement pursuant to certain arrangements or plans meeting the

8-3  requirements for qualified arrangements or plans of sections 401 et seq. of

8-4  the Internal Revenue Code , [(]26 U.S.C. §§ 401 et seq.[).]

8-5    12.  All money and other benefits paid pursuant to the order of a court

8-6  of competent jurisdiction for the support, education and maintenance of a

8-7  child, whether collected by the judgment debtor or the state.

8-8    13.  All money and other benefits paid pursuant to the order of a court

8-9  of competent jurisdiction for the support and maintenance of a former

8-10  spouse, including the amount of any arrearages in the payment of such

8-11  support and maintenance to which the former spouse may be entitled.

8-12    14.  A vehicle for use by you or your dependent which is specially

8-13  equipped or modified to provide mobility for a person with a permanent

8-14  disability.

8-15    15.  A prosthesis or any equipment prescribed by a physician or dentist

8-16  for you or your dependent.

8-17  These exemptions may not apply in certain cases such as proceedings to

8-18  enforce a judgment for support of a child or a judgment of foreclosure on a

8-19  mechanic’s lien. You should consult an attorney immediately to assist you

8-20  in determining whether your property or money is exempt from execution.

8-21  If you cannot afford an attorney, you may be eligible for assistance

8-22  through .................... (name of organization in county providing legal

8-23  services to the indigent or elderly persons).

 

8-24  PROCEDURE FOR CLAIMING EXEMPT PROPERTY

 

8-25    If you believe that the money or property taken from you is exempt or

8-26  necessary for the support of you or your family, you must file with the

8-27  clerk of the court on a form provided by the clerk a notarized affidavit

8-28  claiming the exemption. A copy of the affidavit must be served upon the

8-29  sheriff and the judgment creditor within 8 days after the notice of execution

8-30  is mailed. The property must be returned to you within 5 days after you file

8-31  the affidavit unless the judgment creditor files a motion for a hearing to

8-32  determine the issue of exemption. If this happens, a hearing will be held to

8-33  determine whether the property or money is exempt. The hearing must be

8-34  held within 10 days after the motion for a hearing is filed.

 

8-35    IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE TIME

8-36  SPECIFIED, YOUR PROPERTY MAY BE SOLD AND THE MONEY

8-37  GIVEN TO THE JUDGMENT CREDITOR, EVEN IF THE PROPERTY

8-38  OR MONEY IS EXEMPT.

 

8-39    If you received this notice with a notice of a hearing for attachment and

8-40  you believe that the money or property which would be taken from you by

8-41  a writ of attachment is exempt or necessary for the support of you or your

8-42  family, you are entitled to describe to the court at the hearing why you

8-43  believe your property is exempt. You may also file a motion with the court

8-44  for a discharge of the writ of attachment. You may make that motion any

8-45  time before trial. A hearing will be held on that motion.

9-1    IF YOU DO NOT FILE THE MOTION BEFORE THE TRIAL, YOUR

9-2  PROPERTY MAY BE SOLD AND THE MONEY GIVEN TO THE

9-3  PLAINTIFF, EVEN IF THE PROPERTY OR MONEY IS EXEMPT OR

9-4  NECESSARY FOR THE SUPPORT OF YOU OR YOUR FAMILY.

 

9-5  H