Chapter 1. Estates in Real Property
§ 1. Estate in fee tail abolished.
Where, by the common law, a person might become seised in fee tail of lands by virtue of a devise, gift, grant, or other conveyance, or by other means, such person, instead of being seised thereof in fee tail, shall be seised thereof in fee simple. This section shall not change the effect of any instrument made and executed prior to June 1, 1941.
V.S. 1947, § 2631. 1941, No. 37 , §§ 1, 2. P.L. § 2580. G.L. § 2727. P.S. § 2565. V.S. § 2201. R.L. § 1916. G.S. 64, § 1. R.S. 59, § 1.
This section only refers to estates in land and does not apply where a testator intended that his estate, after the decease of his widow, should be administered as personal estate. Doty v. Chaplin, 54 Vt. 361, 1882 Vt. LEXIS 15 (1882).
Cited in Giddings v. Smith, 15 Vt. 344, 1843 Vt. LEXIS 51 (1843); Thompson v. Carl, 51 Vt. 408, 1878 Vt. LEXIS 172 (1878); In re Estate of Kelso, 69 Vt. 272, 37 A. 747, 1896 Vt. LEXIS 53 (1896).
§ 2. Estate in common preferred to joint tenancy; joint tenancy with unequal shares.
- Conveyances and devises of lands, whether for years, for life or in fee, made to two or more persons, shall be construed to create estates in common and not in joint tenancy, unless it is expressed therein that the grantees or devisees shall take the lands jointly or as joint tenants or in joint tenancy or to them and the survivors of them. This provision shall not apply to devises or conveyances made in trust or made to spouses or to conveyances in which it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy.
- An instrument may create a joint tenancy in which the interests of the joint tenants are equal or unequal. (b) (1) An instrument may create a joint tenancy in which the interests of the joint tenants are equal or unequal.
Unless the instrument creating a joint tenancy contains language indicating a contrary intent:
- It shall be presumed that the joint tenants’ interests are equal.
- Upon the death of a joint tenant, the deceased joint tenant’s interest shall be allocated among the surviving joint tenants, as joint tenants, in proportion to their respective joint interests at the time of the deceased joint tenant’s death.
HISTORY: Amended 2003, No. 150 (Adj. Sess.), § 1.
V.S. 1947, § 2632. P.L. § 2581. G.L. § 2728. P.S. § 2566. V.S. § 2202. R.L. § 1917. G.S. 64, §§ 2, 3. R.S. 59, §§ 2, 3. R. 1797, p. 469, § 11.
—2003 (Adj. Sess.) Added “joint tenancy with unequal shares” at the end of the catchline, designated existing provisions of section as subsec. (a), and added subsec. (b).
2003, No. 150 (Adj. Sess.), § 7, provided:
“Sec. 7. Severability.
“If any provision of this act [which amended this section] or its application to any person or circumstance is held invalid or in violation of the constitution or laws of the United States, the invalidity or the violation shall not affect other provisions of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.”
- Conveyance of undivided interest.
- Conveyance to two or more persons.
- Husband and wife.
Although statute expressing preference for estates in common over joint tenancies did allow a deed to create a joint tenancy by explicit language, legislative policy required court to resolve ambiguity in favor of a tenancy in common rather than a joint tenancy. Kipp v. Chips Estate, 169 Vt. 102, 732 A.2d 127, 1999 Vt. LEXIS 40 (1999).
Conveyance of undivided interest.
There is a statutory presumption that joint tenants will share equally. The trial court’s finding that plaintiff intended to convey nothing was unsupported by the record, and was therefore insufficient to rebut the presumption; thus, the parties, upon the 1996 purchase of the property, each had an undivided one-half interest in the property. Massey v. Hrostek, 2009 VT 70, 186 Vt. 211, 980 A.2d 768, 2009 Vt. LEXIS 78 (2009).
A deed which described land simply as so many acres of a certain lot, passed an undivided interest in such lot equal to the proportion which the number of acres sold bore to the whole number of acres in the lot. Sheafe v. Wait, 30 Vt. 735, 1858 Vt. LEXIS 108 (1858).
Conveyance to two or more persons.
Under statute expressing legislature’s preference for estates in common, court could find a joint tenancy only if intent to convey that interest was expressed in clear and definite terms, and therefore trial court correctly refused to admit evidence of circumstances surrounding drafting of deed, since even if extrinsic evidence was overwhelming that parties had intended to create a joint tenancy, that intent was inadequately expressed in deed to allow court to find such an interest. Kipp v. Chips Estate, 169 Vt. 102, 732 A.2d 127, 1999 Vt. LEXIS 40 (1999).
Children who took, jointly with their parents, an equitable estate became tenants in common therein. Thompson v. Tryon, 66 Vt. 191, 28 A. 873, 1894 Vt. LEXIS 82 (1894).
A condition, in a deed to two or more persons, that they shall pay all the grantor’s debts or the deed shall be void, did not create a trust estate or evince a design to create an estate in joint tenancy; the grantees held the estate as tenants in common. Lamb v. Clark, 29 Vt. 273, 1857 Vt. LEXIS 31 (1857).
The deeding of a given number of acres to one man, and another number to another, thus conveying the whole right to both, there being nothing to show that the land was intended to be conveyed in severalty, will create a tenancy in common, and they will hold in common, in the proportion of the number of acres specified in their deeds. Preston v. Robinson & Ross, 24 Vt. 583, 1852 Vt. LEXIS 88 (1852).
Husband and wife.
The common-law incident of survivorship prevails for tenancies by the entirety in Vermont. Buzzell v. Edward H. Everett Co., 180 F. Supp. 893, 1960 U.S. Dist. LEXIS 5344 (D. Vt. 1960).
Conveyance to husband and wife is expressly excepted from operation of this section. Corinth v. Emery, 63 Vt. 505, 22 A. 618, 1891 Vt. LEXIS 142 (1891).
Cited in Northeast Petroleum Corp. of New Hampshire, Inc. v. State, 143 Vt. 339, 466 A.2d 1164, 1983 Vt. LEXIS 541 (1983); In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309, 1989 Vt. LEXIS 158 (1989).
§ 3. Effect of overgrant.
A conveyance by a tenant for life or years, purporting to grant a greater estate than he or she possessed or could lawfully convey, shall not work a forfeiture of his or her estate, but shall pass to the grantee the estate which such tenant could lawfully convey.
V.S. 1947, § 2633. P.L. § 2582. G.L. § 2729. P.S. § 2567. V.S. § 2203. R.L. § 1918. G.S. 64, § 4. R.S. 59, § 4.
§ 4. Right of entry for survey.
In cases wherein the title to lands, tenements, or hereditaments may come in question, or in order to establish boundaries between abutting parcels, a licensed surveyor with the necessary assistants employed by any of the parties to such disputed title, may enter upon such lands or real estate or other lands for the purpose of running doubtful or disputed lines and locating or searching for monuments, establishing temporary monuments and ascertaining and deciding the location of the lines and monuments of a survey, doing as little damage as possible to the owners of such lands.
HISTORY: Amended 1985, No. 116 (Adj. Sess.), § 2.
V.S. 1947, § 2637. P.L. § 2586. G.L. § 2733. P.S. § 2571. 1902, No. 160 , § 2.
—1985 (Adj. Sess.). Substituted “or in order to establish boundaries between abutting parcels, a licensed” for “the practical” following “question” and inserted “establishing temporary monuments” preceding “and ascertaining”.
Chapter 3. Estates of Homestead
Subchapter 1. General Provisions
§ 101. Definition; exemption from attachment and execution.
The homestead of a natural person consisting of a dwelling house, outbuildings, and the land used in connection therewith, not exceeding $125,000.00 in value, and owned and used or kept by such person as a homestead together with the rents, issues, profits, and products thereof, shall be exempt from attachment and execution except as hereinafter provided.
HISTORY: Amended 1967, No. 287 (Adj. Sess.), § 1; 1979, No. 67 , § 7; 1995, No. 186 (Adj. Sess.), § 24a, eff. Jan. 1, 1997; 2009, No. 55 , § 8.
1953, No. 127 , § 1. V.S. 1947, § 2610. P.L. § 2559. 1921, No. 74 , § 1. G.L. § 2706. P.S. § 2544. V.S. § 2179. R.L. § 1894. G.S. 68, 1. 1860, No. 35 . 1849, No. 20 , § 1.
—2009. Substituted “$125,000.00” for “$75,000.00” after “exceeding” and made a minor punctuation change.
—1995 (Adj. Sess.) Substituted “$75,000.00” for “$30,000.00”.
—1979. Substituted “$30,000.00” for “$5,000.00”.
—1967 (Adj. Sess.). Substituted “$5,000.00” for “$2,500.00”.
1979 amendment. 1979, No. 67 , § 11, provided that section 7 of the act, which amended this section, shall apply only to judgments rendered subsequent to May 8, 1979.
Personal property exempt from attachment and execution, see § 2740 of Title 12.
- Construction with other laws.
- Court order.
- Date of filing bankruptcy.
- Equitable interest.
- Equitable subordination.
- § 12.} Mortgaged property.
- House under construction.
- Intent to acquire homestead.
- Intent to sell.
- Judgment liens.
- Judicial liens.
- Mortgaged property.
- Ownership and occupancy.
- Proceeds of sale of homestead property.
- Recovery of homestead property.
- Tenants in common.
- Type of dwelling.
Absence alone is not sufficient to constitute an abandonment of a homestead unless an intention to abandon is shown. In re Brent, 68 B.R. 893, 1987 Bankr. LEXIS 27 (Bankr. D. Vt. 1987).
The deciding consideration in determining whether a debtor’s absence represents an abandonment of the homestead is whether the debtor has an intention to return. In re Brent, 68 B.R. 893, 1987 Bankr. LEXIS 27 (Bankr. D. Vt. 1987).
If a debtor who is absent from a homestead intends to return to the homestead, then the homestead has not been abandoned and remains exempt during the intervening absence. In re Brent, 68 B.R. 893, 1987 Bankr. LEXIS 27 (Bankr. D. Vt. 1987).
Where husband and wife severally and independently removed from their homestead premises, each then with no intention of again living thereon, the homestead thereby ceased to exist, and could not be revived by an unexplained claim of an interest therein, asserted by wife a long time thereafter. Cushman v. Davis, 79 Vt. 111, 64 A. 456, 1906 Vt. LEXIS 109 (1906).
Where wife and children on granting divorce moved from premises and were absent two years, it was an abandonment of the homestead. Heaton v. Sawyer, 60 Vt. 495, 15 A. 166, 1887 Vt. LEXIS 96 (1887).
Where on left his homestead with intention of returning to it after temporary sojourn elsewhere for specific purpose, but his absence was protracted by accidents longer than he originally contemplated, and he carried intention into effect as soon as he recovered from his injuries sufficiently to be removed to his home, homestead was exempt during time of such absence. West River Bank v. Gale, 42 Vt. 27, 1869 Vt. LEXIS 34 (1869).
Where a creditor obtained a writ of attachment against property owned by the debtor and his nondebtor wife, the wife set forth sufficient facts to pursue a homestead exemption affirmative defense if and when the court determined that she was liable for the creditor’s debt, and the creditor sought to levy on the attachment against property the wife asserted to be her homestead property. Bourdeau Brothers, Inc. v. Montagne, 2010 Bankr. LEXIS 5058 (Bankr. D. Vt. Feb. 1, 2010).
Definition of a “homestead” in 27 V.S.A. § 101 is an exemption concept and describes the rest that the state has carved out as being protected from execution by creditors; it has nothing to do with security interests. In re Mayer-Myers, 345 B.R. 127, 2006 Bankr. LEXIS 1088 (Bankr. D. Vt. 2006).
United States Bankruptcy Court for the District of Vermont holds that: (1) the proportion of the Vermont homestead exemption available to a debtor is equal to the proportion of the debtor’s ownership interest in the homestead; (2) a debtor’s exemptible interest is equal to her equity, and equity is computed by subtracting the full amount of the debtor’s liability for liens against the property from the value of the debtor’s interest in the property; and (3) a co-tenant’s prior bankruptcy filing and claim of exemption have no effect on the debtor’s exemption rights. In re Norton, 327 B.R. 193, 2005 Bankr. LEXIS 1283 (Bankr. D. Vt. 2005).
The word “thereof” in this section modifies “a dwelling house, outbuildings and land used in connection therewith . . . owned and used or kept” by a person as a homestead. In re Evans, 51 B.R. 47, 1985 Bankr. LEXIS 6061 (Bankr. D. Vt. 1985).
This section does not vest in a natural person the absolute right to a homestead exemption, but is qualified by the words “except as hereinafter provided”; the exception is spelled out in section 107 of this title. In re Soter, 26 B.R. 838, 1983 Bankr. LEXIS 7024 (Bankr. D. Vt.), app. dismissed, 31 B.R. 986, 1983 U.S. Dist. LEXIS 15636 (D. Vt. 1983).
Construction with other laws.
Bankruptcy court found that it had jurisdiction to resolve an adversary proceeding Chapter 13 debtors filed against an LLC, which claimed that a mortgage the LLC held was invalid under 27 V.S.A. § 141 , because a determination of the validity of the LLC’s mortgage was essential and integral to a determination of the LLC’s secured status under 11 U.S.C.S. § 506(a), resolution of the LLC’s objection to confirmation of the debtors’ plan under 11 U.S.C.S. § 1325(a)(3), and resolution of the LLC’s objection to a homestead exemption the debtors claimed under 11 U.S.C.S. § 522(b)(1) and 27 V.S.A § 101. There was no merit to the LLC’s claim that the court should have used its equitable powers under 11 U.S.C.S. § 105(a) to decide the case, instead of determining whether the mortgage was valid under § 141. In re Orcutt, 2013 Bankr. LEXIS 1433 (Bankr. D. Vt. Apr. 2, 2013), app. dismissed in part, 2013 Bankr. LEXIS 2966 (D. Vt. July 22, 2013), aff'd in part and rev'd in part, 506 B.R. 52, 2014 U.S. Dist. LEXIS 25707 (D. Vt. 2014).
Homestead which a Chapter 7 debtor purchased in 2003 was not exempt from credit card debt the debtor began incurring in 2001. Although 11 U.S.C.S. § 522(c) provided that property excepted under § 522 was not liable for any debt the debtor incurred before she declared bankruptcy, that section did not apply because the debtor elected to claim her homestead exemption under 27 V.S.A. § 101 , and 27 V.S.A. § 107 provided that her homestead was subject to attachment and levy of execution upon causes of action existing at the time she acquired the homestead. In re Lewis, 400 B.R. 417, 2009 Bankr. LEXIS 220 (Bankr. D. Vt. 2009).
Statutory homestead exemption, purpose of which was to protect homeownership from loss to creditors, did not apply in context of divorce, and therefore family court did not err by imposing $15,000 lien on mother’s real estate in course of its division of marital property. Pearson v. Pearson, 169 Vt. 28, 726 A.2d 71, 1999 Vt. LEXIS 12 (1999).
Section 107 of this title does not fix the time for acquiring a homestead since the beginning words “such homestead” in the section presuppose the existence of a homestead which may be created and exempted under this section; rather, section 107 fixes the time at which existing causes of action shall make the homestead subject to attachment and levy of execution, i.e., the date of the filing of the deed on such homestead. In re Soter, 26 B.R. 838, 1983 Bankr. LEXIS 7024 (Bankr. D. Vt.), app. dismissed, 31 B.R. 986, 1983 U.S. Dist. LEXIS 15636 (D. Vt. 1983).
A debtor may acquire a homestead for purposes of the statutory exemption from attachment and execution under this section and section 107 of this title before the date of the recording of the deed of the homestead. In re Soter, 26 B.R. 838, 1983 Bankr. LEXIS 7024 (Bankr. D. Vt.), app. dismissed, 31 B.R. 986, 1983 U.S. Dist. LEXIS 15636 (D. Vt. 1983).
Farmer who declared Chapter 7 bankruptcy was allowed to claim a homestead exemption under 27 V.S.A. § 101 in a 3.69-acre parcel of land he used as his residence and to operate a wheatgrass business he owned, and because judicial liens an LLC and other creditors had placed on the property impaired the farmer’s right to claim an exemption, they could be stripped off pursuant to 11 U.S.C.S. § 522 and treated as unsecured claims; the fact that the farmer’s only source of water was a well in a greenhouse that was on the property was evidence that the farmer used the greenhouse and a garage that was attached to the greenhouse as part of his homestead. In re Rommer, 549 B.R. 72, 2016 Bankr. LEXIS 1016 (Bankr. D. Vt. 2016).
Creditor and trustee who objected to debtor’s homestead exemption failed to sustain their burden under Fed. R. Bankr. P. 4003 with respect to their request that the court limit the debtor’s homestead exemption to a single parcel of land, or a portion of one parcel. Here, the record was unequivocal that the total value of both of the debtor’s parcels was less than the allowable homestead exemption under 27 V.S.A. § 101 and, under that law, the debtor was neither limited to one parcel nor subject to the carve out under 27 V.S.A § 102 since that carve out applied only to situations where the value of the debtor’s interest exceeded the applicable monetary limit. In re Mead, 489 B.R. 363, 2013 Bankr. LEXIS 1265 (Bankr. D. Vt. 2013).
Where a debtor owned a one-half interest in homestead property with a co-tenant to whom she was not married, under 27 V.S.A. § 101 , the debtor’s equity equaled the total amount due on the mortgage less the value of her one-half interest. The co-tenant’s prior bankruptcy filing and claim of exemption had no effect on the debtor’s exemption rights. In re Norton, 327 B.R. 193, 2005 Bankr. LEXIS 1283 (Bankr. D. Vt. 2005).
The homestead law does not vest any title to the homestead in the wife of the legal and general owner during his lifetime, but only a contingent and inchoate right which, if not released or otherwise barred, may be enforced if the wife survives him. In re Avery, 41 B.R. 224, 1984 Bankr. LEXIS 5457 (Bankr. D. Vt. 1984).
One could not have a homestead in mere land; nor in land with no buildings but a barn on it; a dwelling house, owned, used, or kept as a home, was the first essential of a homestead. Rice v. Rudd, 57 Vt. 6, 1885 Vt. LEXIS 36 (1885).
A person can have but one homestead at a given time. Goodall v. Boardman, 53 Vt. 92, 1880 Vt. LEXIS 94 (1880); In re Estate of Wolff, 108 Vt. 54, 182 A. 187, 1936 Vt. LEXIS 150 (1936).
Owner of an exempt homestead could convey it even if he did so with intent to place it beyond reach of his creditors. Morse v. Andrews, 112 Vt. 456, 28 A.2d 393, 1942 Vt. LEXIS 146 (1942).
Owner of homestead was under no obligation to keep it until his death, so that his creditors could reach it, or, if he disposed of it during his lifetime, to sell it for value or obtain for it something which his creditors could reach. Morse v. Andrews, 112 Vt. 456, 28 A.2d 393, 1942 Vt. LEXIS 146 (1942).
Where debtors resided at their homestead on date of filing petition in bankruptcy, even though they had earlier rented said premises for a time and lived in another town they were entitled to an exemption under this section since the evidence showed that they never had an intention of abandoning their homestead permanently and had retained the homestead as a mailing address for voting and registration of their motor vehicle. In re White, 18 B.R. 95, 1982 Bankr. LEXIS 4844 (Bankr. D. Vt. 1982).
When a homestead ceased to be used and kept as such, it ceased to exist, regardless of whether another had been acquired. Cushman v. Davis, 79 Vt. 111, 64 A. 456, 1906 Vt. LEXIS 109 (1906).
An injunction against the use or occupancy of property as a homestead will not deprive the enjoined owner of a homestead exemption. In re Brent, 68 B.R. 893, 1987 Bankr. LEXIS 27 (Bankr. D. Vt. 1987).
A debtor whose intention to return to a homestead was thwarted by a court order in a divorce proceeding which the debtor sincerely, but erroneously, believed prohibited him from occupying the homestead had not voluntarily abandoned the homestead. In re Brent, 68 B.R. 893, 1987 Bankr. LEXIS 27 (Bankr. D. Vt. 1987).
A debtor’s failure to return to a homestead because of a mistaken belief that a court order in a divorce proceeding prohibited his return did not constitute an abandonment of the homestead in view of the debtor’s abiding intention to return. In re Brent, 68 B.R. 893, 1987 Bankr. LEXIS 27 (Bankr. D. Vt. 1987).
Date of filing bankruptcy.
Court having found that debtors were entitled to claim the property as exempt under 27 V.S.A. § 101 , 11 U.S.C.S. § 522 made clear that the “applicable” exemption was the exemption statute as it existed on debtors’ respective petition dates. In re Lavictoire, 2011 Bankr. LEXIS 1139 (Bankr. D. Vt. Mar. 29, 2011).
Federal bankruptcy law extends the 1995 exemption increase (from $30,000 to $75,000) to all prepetition debt, not only to debts incurred after the effective date of the increase. In re Skjetne, 213 B.R. 274, 1997 Bankr. LEXIS 1506 (Bankr. D. Vt. 1997).
Valuation of a homestead for purpose of exemption in a bankruptcy proceeding is the date of filing of the bankruptcy petition. In re Girard, 98 B.R. 685, 1989 Bankr. LEXIS 531 (Bankr. D. Vt. 1989).
In order for a bankruptcy debtor to claim a homestead exemption under this section, the debtor must own the subject property at the time a petition for relief in bankruptcy is filed. In re Gorman, 82 B.R. 253, 1987 U.S. Dist. LEXIS 13145 (D. Vt. 1987).
Ownership of the property as of the date of the filing of the petition for relief is a prerequisite for the assertion of a homestead right. In re Gorman, 68 B.R. 541, 1986 Bankr. LEXIS 4966 (Bankr. D. Vt. 1986), aff'd, 82 B.R. 253, 1987 U.S. Dist. LEXIS 13145 (D. Vt. 1987).
The date of the filing of a bankruptcy petition determines right of a debtor to a homestead exemption under this section. In re Evans, 51 B.R. 47, 1985 Bankr. LEXIS 6061 (Bankr. D. Vt. 1985).
Homestead rights are determined as of the date of the filing of the petition for relief. In re Avery, 41 B.R. 224, 1984 Bankr. LEXIS 5457 (Bankr. D. Vt. 1984).
Avoidance of creditor’s lien on debtor’s property pursuant to 11 U.S.C.S. § 522(f) was not warranted because debtor’s persistent use of the property during the period when his LLC held legal title to the property did not meet the demanding criteria established for equitable title under Vermont law; when debtor acquired the property, he acquired it subject to the creditor’s lien, by operation of 27 V.S.A. § 107 . In re Hewitt, 576 B.R. 790, 2017 Bankr. LEXIS 3859 (Bankr. D. Vt. 2017).
By filing for divorce, a wife did not acquire equitable title through the property settlement statute to property owned by the husband and therefore was not entitled to a homestead exemption with regard to the mortgage on that property. The family court’s injunction against the alienation of marital property did not affect this result, as it did not give either party a right to any item of property. Brattleboro S&L Ass'n v. Hardie, 2014 VT 26, 196 Vt. 144, 94 A.3d 1132, 2014 Vt. LEXIS 26 (2014).
One may have a homestead in premises in which he has only an equitable title. In re Avery, 41 B.R. 224, 1984 Bankr. LEXIS 5457 (Bankr. D. Vt. 1984).
One may have a homestead right in premises in which he has only an equitable title; and the avails of the sale of such homestead are exempt from attachment by trustee process. Executor of Doane v. Doane, 46 Vt. 485, 1874 Vt. LEXIS 27 (1874).
This section applies to equitable as well as legal ownership; an incumbered as well as unincumbered estate. Morgan v. Stearns, 41 Vt. 398, 1868 Vt. LEXIS 134 (1868).