Except as otherwise provided in this article, there shall be exempt from levy and sale by virtue of any process whatever under the laws of this state any real or personal property or both of a debtor in the amount of $5,000.00 or $21,500.00 for real or personal property that is the debtor's primary residence. No court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against property set apart under this Code section, including such improvements as may be made thereon from time to time, except for taxes, for the purchase money of the property, for labor done on the property, for material furnished for the property, or for the removal of encumbrances on the property.
(Ga. L. 1868, p. 27, § 1; Code 1873, § 2002; Code 1882, § 2002; Civil Code 1895, § 2827; Civil Code 1910, § 3377; Code 1933, § 51-101; Ga. L. 1976, p. 346, § 1; Ga. L. 1983, p. 1170, § 2; Ga. L. 2012, p. 1030, § 1/SB 117.)
The 2012 amendment, effective May 2, 2012, added "or $21,500.00 for real or personal property that is the debtor's primary residence" at the end of the first sentence of this Code section.
Law reviews.- For note discussing property exempt from execution, see 12 Ga. L. Rev. 814 (1978). For comment on Roquemore v. Goldstein, 100 Ga. App. 591, 112 S.E.2d 24 (1959), see 12 Mercer L. Rev. 280 (1960).
JUDICIAL DECISIONSANALYSIS
General Consideration
Not question respecting title to land.
- The title to the property in which a homestead is sought to be set is not directly involved, and therefore, the question raised by the application and objections urged by a creditor of the applicant is not one respecting title to land, so as to confer jurisdiction on the Supreme Court as provided in the Constitution of this state. Adams v. Bishop, 174 Ga. 262, 162 S.E. 531 (1932).
Effect of exemption on title.- When the exemption is set apart to the bankrupt by the bankruptcy court, the title is in the bankrupt precisely as it was before. Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953).
Effect of setting apart homestead is not to change the title but only the use during the life of the wife and the minority of the children; where in such circumstances the husband dies intestate before termination of the homestead, the property will remain his estate and descend to his heirs by inheritance, with the right of possession postponed until termination of the homestead. Donalson v. Yeates, 173 Ga. 30, 159 S.E. 856 (1931).
Effect of assignment of homestead property.- When the property is set apart as exempt, the court of bankruptcy exhausts its jurisdiction over the property, and it remains the property of the bankrupt, unaffected by the bankruptcy proceedings and therefore an assignment thereof, whether before the bankrupt is adjudged a bankrupt, or pending the bankruptcy proceedings, will be unaffected by such proceedings. Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953).
Homestead contained in deed to secure debt.
- A deed made to secure a debt conveys the title to land, and a homestead therein will avail nothing as against such title. There is nothing in the debtor upon which a homestead can operate save the equity of redemption; if he never redeems, there is nothing to which it can attach. Rose v. Crane Heating Co., 198 Ga. 295, 31 S.E.2d 717 (1944).
Where bankrupt makes no claim to exemption, or claims only a partial exemption, there can be no proper basis for a determination by the court of bankruptcy which requires that the privilege of exemption be recognized and enforced where not claimed by the party for whose benefit the statute law establishes it. Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953).
Waiver.
- When the debtor waives the homestead and exemption, the debtor means that all of debtor's property shall be a security to the creditor for the payment of that debt; and the creditor has a legal right to rely upon all of the debtor's property for the payment of the debt. Rosenthal v. Langley, 180 Ga. 253, 179 S.E. 383, appeal dismissed, 295 U.S. 720, 55 S. Ct. 916, 79 L. Ed. 1674 (1935).
Homestead terminated.
- Where a constitutional homestead on certain property was granted on the application of one individual and, on her death, the property passed by will to her son, who married sister of present owner, following which present owner and her son came to live in the home, no homestead presently exists in the property. Martin v. Fulton County, 213 Ga. 761, 101 S.E.2d 716 (1958).
Jurisdiction of bankruptcy court.
- The court of bankruptcy has jurisdiction to set apart, segregate, and deliver a homestead, but has no jurisdiction to adjudicate whether the property set apart is unencumbered or subject to liens, or to determine the respective priorities of liens, if any exist. Rosenthal v. Langley, 180 Ga. 253, 179 S.E. 383, appeal dismissed, 295 U.S. 720, 55 S. Ct. 916, 79 L. Ed. 1674 (1935).
Sale for purchase price.
- Where exempted property is sold under execution for the purchase price, a creditor not of the class expressly declared superior to homestead cannot claim the proceeds. Walker v. Johnson, 64 Ga. 363 (1879).
Cited in McWatty v. Jefferson County, 76 Ga. 352 (1886); Garmon v. Davis, 63 Ga. App. 815, 12 S.E.2d 209 (1940); In re Dixon, 49 F. Supp. 977 (S.D. Ga. 1943); In re Harrison, 13 Bankr. 293 (Bankr. N.D. Ga. 1981).
What Constitutes Homestead Property
Purchase money.
- The specific property for which purchase money is due is liable to a judgment therefor, notwithstanding the same has been set apart under the homestead law; other property exempted is not subject thereto. Loyless & Griffin v. Collins, 55 Ga. 370 (1876).
Where purchase money due.
- A claimant not having paid the purchase money and having no title when claimant applied for the homestead, any homestead set apart to the claimant in this land was not binding upon the original vendor. Blackwell v. Aiken, 73 Ga. 55 (1884); Perdue v. Fraley, 92 Ga. 780, 19 S.E. 40 (1894).
Property purchased with proceeds of homestead.
- Where the property was purchased with the proceeds of a homestead, it was homestead property. Thornton v. Horton, 24 Ga. App. 92, 100 S.E. 41 (1919); Amerson v. Cox, 173 Ga. 477, 160 S.E. 506 (1931).
Money expended before exemption sought.
- Though the exempted land is liable under O.C.G.A. § 44-13-1 for its purchase money, it is not liable for money expended, before any right of exemption was asserted, in paying for improvements and for work and labor done upon the premises. Builders' Lumber Co. v. Hunt, 179 Ga. 367, 176 S.E. 11 (1934).
Improvements.
- O.C.G.A. § 44-13-1 does not make improvements put upon property before the exemption is granted one of the exemptions, but expressly declares the improvements put upon the homestead shall not be subject to levy and sale. Builders' Lumber Co. v. Hunt, 179 Ga. 367, 176 S.E. 11 (1934).
Debts incurred in removing encumbrances.
- Purchase money and debts incurred in removing encumbrances have the same status. McConnell v. Gregory, 146 Ga. 475, 91 S.E. 550 (1917).
The phrase "material furnished therefor," describing one class of debts for which a homestead may be liable, refers to material furnished for the homestead, that is, after the homestead has been set apart, and does not include material furnished to improve the property before it was set apart. Rose v. Crane Heating Co., 198 Ga. 295, 31 S.E.2d 717 (1944).
Necessities.
- Neither an article of necessity furnished for the use of the family nor even stock feed furnished to feed horses, which has been set apart as part of a homestead, comes within the constitutional exceptions under which homestead property may be subjected to sale. McLamb & Co. v. Lambertson, 4 Ga. App. 553, 62 S.E. 107 (1908).
Exemption covering automobile.
- The homestead exemption covering a "Ford automobile" can only have been allowed under the provisions of O.C.G.A. § 44-13-1 and could not be upheld as a statutory or "short" homestead. Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976 (1916).
Who May Claim Exemption
Husband cannot take a homestead in land belonging to his wife; a homestead so set apart is invalid as against a judgment creditor of the wife. Jackson v. Williams, 129 Ga. 716, 59 S.E. 776 (1907).
Widow.
- A widow may have set apart an exemption for herself and minor children from the property if her deceased husband devised to her for life and in trust for such minor children. Birdwell v. Birdwell, 76 Ga. 627 (1886).
A widow cannot as head of a family have land left by her husband set apart as homestead except as to her own interest therein. Madden v. Jones, 75 Ga. 680 (1885).
Aged and infirm person.
- Land of an aged and infirm person set apart to him as a homestead under O.C.G.A. § 44-13-1 is not subject to levy and sale under an execution issued upon a general judgment for permanent alimony. Knox v. Knox, 148 Ga. 253, 96 S.E. 337 (1918).
Guardian of one minor child is the head of a family of minor children. Rountree v. Dennard, 59 Ga. 629, 27 Am. R. 401 (1877).
Unmarried person without dependents is not the "head of a household." Rietz v. Butler, 322 F. Supp. 1029 (N.D. Ga. 1971).
Bachelor, having no person depending on him for support and maintenance is not the head of a family, and not entitled to a homestead. Calhoun v. McLendon, 42 Ga. 405 (1871).
Partnership.- No individual exemption can be allowed out of the partnership estate at the expense of the joint creditors, in bankruptcy proceedings. In re Stewart, 23 F. Cas. 51 (D.C. Ga. 1875) (No. 13,420).
Where each partner has applied for and obtained a homestead in the partnership land, the same being assigned in separate parcels, a prior creditor of the partnership cannot enforce a judgment over the homestead right. Harris v. Visscher, 57 Ga. 229 (1876).
Abandoned family.
- Property exempted under O.C.G.A. § 44-13-1 is for the use and benefit of the family of the debtor, to the extent that a member of the debtor's family may enjoy the benefit thereof even though he should abandon her. Rietz v. Butler, 322 F. Supp. 1029 (N.D. Ga. 1971).
OPINIONS OF THE ATTORNEY GENERALHomestead exemption must be applied for and is not granted solely on basis of information contained in tax return. 1957 Op. Att'y Gen. p. 292.
Levy for delinquent motor vehicle ad valorem taxes can be executed against the homestead. 1968 Op. Att'y Gen. No. 68-146.