OPINION REGARDING OVERRULING TRUSTEE'S OBJECTION TO CLAIMED EXEMPTION OF RESIDENCE
S. MARTIN TEEL, JR., Bankruptcy Judge.
The debtor, J. Michael Springmann, claimed as exempt the full value of his home, a single family residence, under D.C.Code Ann. § 15-501(a)(14) (West 2004) (permitting exemption of "the debtor's aggregate interest in real property used as the residence of the debtor"). The chapter 7 trustee, Marc E. Albert, has objected that the exemption should be reduced based on those parts of the residence Albert contends are not being "used as the residence of the debtor" within the meaning of § 15-501(a)(14). At the time Springmann filed the petition, he used part of his basement as his home office, and he rented out two of his bedrooms. For the reasons explained below, the trustee's objection will be overruled.
The residence at issue is a single-family residence, a colonial brick, two-story home with basement located in the American University Park neighborhood in the District of Columbia. The second floor contains a master bedroom with bathroom, two smaller bedrooms, and a second bathroom. Each of the smaller bedrooms has its own set of locks and is furnished as a bedroom. The basement consists of at least two rooms. The main area of the basement is finished, to a degree, and has a desk with a computer. Connected to this main area is a laundry room.
Springmann uses the main area of the basement (16.67% of the area of the house) as a law office for his legal practice. Springmann does not bring clients to his home to conduct business, and instead meets with clients outside of his home. On his 2002, 2003, and 2004 Federal Income Tax Returns (Form 1040), he claimed on Schedule C (Profit or Loss From Business), and the related Form 8829 (Expenses for Business Use of Your Home) deductions for various expenses allocable to the part of the basement used for the business (depreciation, real estate taxes, insurance (if paid), and utilities).
The tenants have access to the second bathroom on the second floor as well as the common areas in the rest of the house. Springmann on occasion uses the second bathroom himself as it contains a bathtub (which he uses to soak his feet for a medical condition) whereas the master bedroom's bathroom contains only a shower. For each of the tax years of 2002, 2003, and 2004, his Form 1040, Federal Income Tax Return, Schedule E, listed the two bedrooms as "rental real estate property," and answered "No" in response to the question:
For each rental real estate property listed on line 1, did you or your family use it during the tax year for personal purposes for more than the greater of:
• 14 days,
• 10% of the total days rented at fair rental value?
(Springmann did not offer any tax returns for earlier years showing a different treatment.) The response to the question on the tax returns is consistent with the fact that although during periods of non-rental, Springmann occasionally uses the two bedrooms for his own personal purposes, that personal use had not been significant. Springmann's Schedules E showed:
Rents and Expenses 2002 2003 2004Rents received 7,975 10,875 12,560 Advertising 25 Insurance 869 740 Cleaning & Maintenance 401 Repairs 430 Supplies 673 Taxes 3,360 2,045 3,284 Utilities 793 1,276 1,587 Depreciation 22,101 1
The smaller rented bedroom consists of 80 square feet, and the second bedroom consists of 149 square feet, for a total of 229 square feet. The house has 2,088 square feet, so the rented bedrooms represent 10.97% of the house's total square footage. That 10.97% represents a relatively insignificant occupancy by others to which the house has been put.
Springmann seeks to exempt the full value of his home under D.C.Code Ann. § 15-501. Section 15-501 states in pertinent part:
. . . . .
D.C.Code Ann. § 15-501(a)(14) (bold supplied).
This provision appears to have borrowed in large part the language of 11 U.S.C. § 522(d)(1) (an exemption available to a debtor who, pursuant to 11 U.S.C. § 522(b)(1), elects the exemptions available under § 522(d) instead of exempting under § 522(b)(2) exemptions available under nonbankruptcy law). Section 522(d)(1) provides that a debtor may exempt:
[Emphasis added.] Unlike § 522(d)(1), which caps exemption of a debtor's aggregate interest in the debtor's residence at $18,450, the District's residence exemption is unlimited in amount. The court has been unable to find any decision that addresses the exemptibility under § 522(d)(1) of the part of a real property that is rented to others (with the other part resided in by the debtor), but this is not surprising. A majority of states have "opted out" of the § 522(d) exemptions pursuant to § 522(b)(1), which permits state law applicable to a debtor under § 522(b)(2) to specifically not authorize the debtor to elect the exemptions under § 522(d). So the issue would not arise under § 522(d)(1) in those states. Moreover, in non-opt out states, a debtor may voluntarily forego the § 522(d) exemptions and elect non-bankruptcy law exemptions pursuant to § 522(b)(2), and in any event the cap on the § 522(d)(1) exemption would render the issue moot or as entailing a relatively small amount.
The trustee notes that the exemption statute restricts the scope of the exemption to "the debtor's
However, the term "aggregate interest" is used in other parts of D.C.Code § 15-501(a) not containing any use restriction.
In other words, the phrase "aggregate interest in property" means the bundle of rights the debtor has in property of an exempt character. The phrase "aggregate interest in property" does not by itself answer whether the part of a real property rented to others or used for business purposes cannot enjoy the residential exemption under § 15-501(a)(14).
With respect to the effect of Springmann's conducting business in his dwelling house (in the form of a basement office for his practice as an attorney), the court turns to decisions in other states. When a debtor's residence is used incidentally by the debtor to conduct a business, as here, the courts generally have construed whatever homestead statute applies as permitting the debtor to exempt the entire dwelling. See generally Annotation, Character of Property as Homestead as Affected by Its Use for Business as Well as Residence Purposes, 114 A.L.R. 209. Caution must be exercised, because homestead statutes vary, with some expressly authorizing the use of a homestead to conduct a business.
However, even under homestead exemption laws, which like the District of Columbia's residence exemption law, are residence-use-restricted, courts have held that a debtor may conduct his business on his
Where the claimant is established upon the property for the main purpose of engaging in a certain business, and uses a portion thereof for dwelling purposes only, that he may be convenient to that business, it may not be said that the property comes within the purpose of the statute allowing homestead exemption. On the other hand, where the place is primarily the home of the family, and some business is engaged in on the premises in an incidental way, the conduct of such a business does not deprive the owner of the right to his homestead claim.
Cf. Lievsay v. Western Fin. Sav. Bank, F.S.B. (In re Lievsay), 199 B.R. 705, 709 (9th Cir. BAP 1996) (debtor's use of part of home as office did not disqualify a home mortgage from being "a claim secured only by a security interest in real property that is the debtor's principal residence" under 11 U.S.C. § 1322(b)(2)), appeal dismissed, 118 F.3d 661 (9th Cir.1997), cert. denied, 522 U.S. 1149, 118 S.Ct. 1168, 140 L.Ed.2d 178 (1998). But see In re Hager, 74 B.R. 198 (Bankr.N.D.N.Y.1987), aff'd, 90 B.R. 584 (1988) (13.08% of residence used by debtor for his rendition of chiropractic and masseur services was not exempt).
It is common for a homeowner to utilize the home to engage in business activities or designate a portion of the home to incidental use as an office. Such uses do not change the character of the
The more difficult issue is whether the portion of the Yuma Street property rented to university students ought to be held non-exemptible because that portion constitutes rental real estate, occupied by others, and not property used as Springmann's residence.
The trustee argues that within the meaning of the statute, the rented bedrooms are not "real property used as the residence of the debtor" because the bedrooms themselves are not used in any significant way by Springmann for his residential purposes. Springmann argues that within the meaning of the statute, the rented bedrooms are part of "real property used as the residence of the debtor" because the bedrooms are contained within a single house used as his residence, and the statute does not require that the real property be used
The statute is arguably sufficiently ambiguous to permit either interpretation. Generally, courts should construe ambiguous exemption statutes liberally in favor of the debtor, Wallerstedt v. Sosne (In re Wallerstedt), 930 F.2d 630, 631 (8th Cir.1991), but legislative history or logic may dictate a more narrow construction, Christo v. Yellin (In re Christo), 192 F.3d 36, 39 (1st Cir.1999).
The difficulty with construing the statute as urged by Springmann is that it would extend the exemption to a 100-room hotel or a 100-room apartment building in which the debtor maintains a residence. The City Council is not likely to have intended that result. See In re Shillinglaw, 81 B.R. 138, 140 (Bankr.S.D.Fla.1987), aff'd, 88 B.R. 406 (S.D.Fla.1988).
Moreover, although the statute does not refer to "real property used
The court has examined decisions regarding the exemptibility of rented portions of a debtor's residential property under the homestead exemption laws of other states, albeit not exhaustively. Many of those decisions are inapplicable because the statutes are not residence-use-restricted, and indeed their reasoning, in emphasizing the acreage or dollar limitation of the applicable exemption statute, actually support a restrictive interpretation when, in contrast, a state's homestead exemption law, like the District of Columbia's, has no limitation other than the residence-use restriction. For example, in In re Trigonis, 224 B.R. 152 (Bankr.D.Nev.1998), in permitting exemption of a multi-unit building, the court applied a statute which permitted exemption of a homestead defined as meaning "the property consisting of . . . [a] quantity of land, together with the dwelling house thereon and its appurtenances. . . ." Nev.Rev.Stat. Ann. 115.005(2)(a) (Michie 1993).
In many "use oriented" jurisdictions, the quantity of land allowed has been limited
The trustee points to Florida's homestead law as being similar to the District of Columbia's. Article X, § 4(a)(1) of the Florida Constitution, adopted in 1968, permits the exemption of:
a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land,
[Emphasis added.] The current Florida homestead law amended a prior law which provided that the exemption "shall not extend to more improvements or buildings than the residence and business house of the owner." Fla. Const. art. X, § 1 (1885). The amendment of the law evidenced an unequivocal intent to limit the exemption to strictly the residence of the debtor. Although the District of Columbia statute permits in relevant part an exemption of "the debtor's aggregate interest in real property used as the residence of the debtor," the language used similarly expresses a use limitation: real property not used as the debtor's residence does not qualify for the exemption.
Because the Florida law, although placing an acreage limitation, places no dollar limitation on its homestead exemption, there has been frequent litigation under that law of the issue of what constitutes the debtor's residence when part of the property has been rented. Most of the decisions involve rental of land to a third-party business; rental of a separate building; or rental of recognizably distinct living units.
Two cases took the view that when the rented portion of a property cannot be sold under existing zoning laws, the debtor is entitled to the homestead exemption. In re Kuver, 70 B.R. 190 (Bankr.S.D.Fla.1986) (debtor entitled to homestead exemption for a duplex where the rental half could not be lawfully sold under existing zoning laws); In re Makarewicz, 130 B.R. 620 (Bankr.S.D.Fla.1991) (property was zoned as single family residence with no ability to sever and convey the rented portions of the garage). However, Kuver and Makarewicz were implicitly overruled by Englander v. Mills (In re Englander), 95 F.3d 1028, 1031, 1032 nn. 22-24 (11th Cir.1996) (zoning restrictions against sale of less than the entirety of a property did not make exempt the entire property when it exceeded the acreage limitation for a homestead exemption), cert. denied, 520 U.S. 1186, 117 S.Ct. 1469, 137 L.Ed.2d 682 (1997). See Nofsinger, 221 B.R. at 1020 n. 2. Moreover, they were expressly criticized in Dudeney, 159 B.R. at 1006 n. 1.
In Englander, the bankruptcy court had declined to hold as non-exempt, under the residence-use restriction, a rented apartment over a garage attached to a single-family residence (and instead disallowed the exemption to the extent it exceeded the acreage limitation). Englander, 156 B.R. 862, 866-67 (Bankr.M.D.Fla.1992). Although mentioning Kuver and Makarewicz, the court appeared not to embrace their severability requirement (although the decision is less than clear in this regard). Instead, it reasoned that "the garage apartment was built on homestead property for utility purposes and not rental purposes," id. at 867, a relevant factor under the Florida homestead exemption law prior to its being amended to include the residential-use restriction. The court failed to articulate a rationale for how that factor could survive the amendment of the law, and thus is unpersuasive in placing reliance on that factor.
Without acknowledging the criticisms of Kuver and Makarewicz, or the weakness of the bankruptcy court's approach in Englander, the court in In re Ballato, 318 B.R. 205 (Bankr.M.D.Fla.2004), relied upon those decisions in concluding that in the case of a single-family residence, with no severable parts, the entire property would be exempt despite the existence of renters. Even though Ballato's logic might be questioned, it is important to note that the cases it distinguished all themselves emphasized the separate character of the part of the premises rented in concluding that an exemption was unavailable for that rented part, and the result may be justified as a matter of common sense depending on the extent and nature of the renting of rooms.
Decision Under Maine Law
Maine's homestead exemption law is limited to "real or personal property that the
New Hampshire and Kansas Law
Similar results have been reached under New Hampshire and Kansas homestead exemption statutes which, although not expressly containing a residence-use restriction, have been interpreted as embodying such, thus excluding from exemption in New Hampshire
Alaska's homestead exemption law is also residence-use-restricted. The applicable statute, A.S. 09.38.010(a), provides:
An individual is entitled to an exemption as a homestead of the individual's interest in property in this state used as the principal residence of the individual or the dependents of the individual, but the value of the homestead may not exceed [$64,800.00].
In In re Shell, 295 B.R. 129 (Bankr.D.Alaska 2003), the court held that the debtor could exempt a six-unit apartment as a homestead when he occupied one unit and rented out the other five. The court reasoned that the legislative history demonstrated that the homestead is designed to both provide a place to reside and keep the debtor from seeking public assistance, and that this latter goal was
Decisions Under 11 U.S.C. § 1322(b)(2)
Under 11 U.S.C. § 1322(b)(2), a plan may not modify the rights of holder of a secured claim if the claim is "a claim secured only by a security interest in real property that is the debtor's principal residence." In Lomas Mortgage v. Louis, 82 F.3d 1, the Court of Appeals for the First Circuit held that this antimodification provision did not apply to a multi-unit property in which the debtor resided in only one unit.
does not apply to a commercial property, or to any transaction in which the creditor acquired a lien on property other
The Judiciary Committee Report referred to In re Ramirez, 62 B.R. 668 (Bankr.S.D.Cal.1986), as an example for this proposition. Lomas, 82 F.3d at 7. Ramirez held that the antimodification provision of § 1322(b)(2) does not apply to multi-unit houses if the security interest extends to rental units.
Sections 1123(b)(5) and 1322(b)(2), and Ramirez, as interpreted by Lomas, thus support the proposition that a multi-unit house that is not solely debtor-occupied, based on a rental or rentals to others, is not in its entirety "real property used as the debtor's residence."
The foregoing survey of the rulings under similar statutory provisions inclines the court to the view that the unlimited nature of the District of Columbia's homestead exemption would result in the residential-use restriction of D.C.Code Ann. § 15-501(a)(14) being applied to disqualify for exemption those units of a multi-unit property that are leased to others. However, the foregoing survey does not provide a clear answer to whether the District's residence exemption extends to rooms in the debtor's home that are rented to others. Carried to a logical extreme, the decisions disallowing the homestead exemption based on a residence-use restriction in the case of separate units rented to others arguably would require disallowance of the exemption with respect to rooms rented out within a single-family residence. However, those decisions were careful to note the separate unit character of the rented units. Only Ballato addressed the issue of renters sharing a single-family residence with the debtor, and in Ballato the court concluded that renting out part of a single-family residence did not destroy the character of the property as property used by the debtor as a residence. Although the reasoning of Ballato may be criticized, its result on the facts of this case would not be. Common sense dictates that a merely incidental renting of one or two bedrooms to university students in a three-bedroom single-family dwelling does not destroy the character of those rooms as part of a real property used as the debtor's residence.
A contrary conclusion could have adverse consequences in the implementation of related statutory provisions. If the rental of a bedroom prevented that room from being part of property used as a debtor's residence for purposes of the District's residence exemption (and for purposes of 11 U.S.C. § 522(d)(1) which contains an identical residence-use restriction), that would mean under Lomas that the mere renting of a bedroom to a university student would deprive the debtor's home mortgage of the protection of the antimodification provisions of 11 U.S.C. § 1123(b)(5) and § 1322(b)(2).
The difficulty, of course, is one of line drawing: when does renting out of part of the property cross the line and remove that rented property from being part of real property used as the debtor's principal residence? When the space rented is not a separate dwelling unit, such that the case is one of shared residency, and when the extent of such rentals does not change the character of the property into a commercial property (as in the case of the bed and breakfast operation in In re McVay, 150 B.R. 254 (Bankr.D.Or.1993), or a hotel as in Mirulla, 163 B.R. at 910), the property in its entirety should still be viewed as being used as the debtor's residence.
If a taxpayer rents a portion of his or her principal or second residence to another person (a "tenant"), such portion may be treated as used by the taxpayer for residential purposes if, but only if —
(A) Such rented portion is used by the tenant primarily for residential purposes,
[Emphasis added.] The lines drawn by the tax regulation are not adopted by this court for purposes of applying the residence exemption statute, but are illustrative that in determining whether property is used as a debtor's residence common sense dictates that the line ought not be drawn so that absolutely any rented portion of a property cannot qualify as part of property used by the debtor as a residence.
To recapitulate, common sense dictates that one or two bedrooms rented out in a single family residence to university students, with the students sharing a common entrance and enjoying use of the common areas of the house on a shared residency basis, are part of "the debtor's aggregate interest in real property used as the residence of the debtor" within the meaning of D.C.Code Ann. § 15-501(a)(14). Nor does having one or two roomers in one's single-family home to generate extra income change the character of the real property into a principally nonresidential commercial enterprise of leasing out rooms (as in the case of a hotel or a bed and breakfast operation) such that only the space occupied by the debtor qualifies for the exemption. That Springmann treated the two bedrooms on his tax returns as income-generating rental activity is only one factor the court will consider in determining whether he has used the entire real property as his residence. What is stated in the tax forms is not dispositive evidence of the character of the property. Accordingly, the court rejects the trustee's objection relating to the rented bedrooms. An order follows.
For example, in the case of a duplex with each unit having the same amount of equity, and with only one unit owner-occupied, at most $9,225 would ever be at issue. (If the equity for each unit exceeds $9,225, the amount at issue decreases by the amount of the excess above $9,225. Similarly, if the equity for each unit falls short of $9,225, the amount at issue decreases by the amount of the shortfall.)
If the debtor can invoke marshaling to channel payment of any secured debt on a property first from the non-owner-occupied part of the property, see In re McCambry, 327 B.R. 469, 476-77 (Bankr.D.Kan.2005), but see In re Miller, 299 F.3d 183 (3d Cir.2002); In re Klein, 272 B.R. 807 (Bankr.M.D.Fla.2002), that would further explain the lack of § 522(d)(1) litigation over partially rented-out homesteads.
The California statute (section 1237, C.C.) declares that `the homestead consists of the dwelling house in which the claimant resides, and the land on which the same is situated, selected as in this title provided.' The value of the homestead to be so selected, in case such selection is made by the husband or the wife, must not exceed $5,000. C.C. Cal. Secs. 1260, 1261, and 1262.
28 F.2d at 354.
I cannot believe, however, that the construction of a hotel, apartments, or homes on rural property and the leasing of those accommodations to provide homes for others would shield the property so used from creditors' claims merely because the owner lives in one of those units..... I doubt that anyone could intend, for example, to permit a property owner on Key Biscayne (an unincorporated area) to shield a 1,000 room hotel from his creditors' claims merely because it was built on less than 160 acres owned by him and he lives in one of the rooms.
81 B.R. at 140. Accord, In re Wierschem, 152 B.R. 345, 348-49 (Bankr.M.D.Fla.1993), and In re Nofsinger, 221 B.R. 1018, 1020-21 (Bankr.M.D.Fla.1998), both rejecting the contrary authority of In re Israel, 94 B.R. 729, 730 (Bankr.N.D.Fla.1988).
A similar result has been reached in decisions construing the
A similar result was reached in In re Vizentinis, 175 B.R. 824, 826 (Bankr.E.D.N.Y.1994) (under