Code of Virginia

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Code of Virginia
Title 34. Homestead and Other Exemptions
Chapter 2. Homestead Exemption of Householder
9/23/2021

Chapter 2. Homestead Exemption of Householder.

§ 34-4. Exemption created.

Every householder shall be entitled, in addition to the property or estate exempt under §§ 23.1-707, 34-26, 34-27, 34-29, and 64.2-311, to hold exempt from creditor process arising out of a debt, real and personal property, or either, to be selected by the householder, including money and debts due the householder not exceeding $5,000 in value or, if the householder is 65 years of age or older, not exceeding $10,000 in value, and, in addition, real or personal property used as the principal residence of the householder or the householder's dependents not exceeding $25,000 in value. In addition, upon a showing that a householder supports dependents, the householder shall be entitled to hold exempt from creditor process real and personal property, or either, selected by the householder, including money or monetary obligations or liabilities due the householder, not exceeding $500 in value for each dependent.

For the purposes of this section, "dependent" means an individual who derives support primarily from the householder and who does not have assets sufficient to support himself, but in no case shall an individual be the dependent of more than one householder.

Code 1919, § 6531; 1918, p. 487; 1975, c. 466; 1977, c. 496; 1978, c. 231; 1990, c. 942; 1997, cc. 785, 861; 2009, c. 387; 2020, c. 328.

§ 34-4.1. Additional exemption for certain veterans.

Every veteran residing in this Commonwealth having a service connected disability of forty percent or more, as rated by the U.S. Department of Veterans Affairs, shall be entitled, in addition to the property or estate which he is entitled to hold exempt from creditor process under §§ 34-4, 34-26, 34-27, 34-29, and 64.2-311, to hold exempt from creditor process his real and personal property, or either, to be selected by him by the writings required by §§ 34-6 and 34-14, including money and debts due him, not exceeding $10,000 in value.

1966, c. 499; 1977, c. 496; 1978, c. 231; 1990, c. 942; 1993, c. 150; 2009, c. 388.

§ 34-4.2. Additional exemption for parents of dependent children.

A. Where a parent supports a dependent minor child or children residing with him, that parent can hold exempt from wage garnishment, in addition to the property or estate that he is entitled to hold exempt from creditor process under §§ 20-108.1, 34-4, 34-4.1, 34-26, 34-27, 34-29, and 64.2-311, an additional amount for the support of the child or children as follows: $34 per week for one child; $52 per week for two children; and $66 per week for three or more children. This additional wage exemption amount shall not be available to a parent whose household gross income, including any support payments for children living in the home, exceeds $1,750 per month. For purposes of this section, "household gross income" means all income from all sources, and shall include, but not be limited to, salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, child support, spousal support, rental income, gifts, prizes or awards paid to any adult living in the household or to the dependent child.

B. To claim this wage exemption, the parent shall attach to the claim for exemption form set forth in § 8.01-512.4 an affidavit and two items of proof showing that the debtor is entitled to this additional wage exemption. The affidavit shall contain the following statement:

AFFIDAVIT CONCERNING DEPENDENT CHILDREN AND HOUSEHOLD INCOME

Having been duly sworn, I, ____________________, depose and state the following to be true, accurate and complete:

1. I support __________ (number) dependent children, whose names and ages are as follows. For each child I have included the amount of monthly child support I receive (including voluntary support payments and payments made pursuant to a court or administrative order), and, if the child is employed or has other income, the amount of the child's gross monthly income. (If you receive no support for the child and the child has no income, insert zero.)

aFull legal name of childAgeChild's gross monthly support and income
b_____________________________________________________________________________
c_____________________________________________________________________________
d_____________________________________________________________________________
e_____________________________________________________________________________

(attach additional pages if necessary)

2. My personal gross monthly income, not including any of the above amounts, is $__________.

3. The following are the names and gross monthly incomes of all people who reside with me in the same house, apartment or other dwelling, other than the above-named dependent minor child or children. (If the household resident has no income, insert zero.)

aFull legal name of household residentsGross monthly income
b___________________________________________________________________
c___________________________________________________________________
d___________________________________________________________________
e___________________________________________________________________

(attach additional pages if necessary)

4. I swear or affirm that no person other than the above-named individuals resides with me and that I reside with no person other than the above-named individuals.

________________________________________ (signature of debtor)

____________________ (date)

Commonwealth of Virginia:

City/County of ____________________, to wit:

Subscribed and sworn to before me, the undersigned Notary Public, this __________ day of __________ (month), __________ (year)

Notary Public: ________________________________________

My commission expires: ____________________

2009, c. 332.

§ 34-5. To what debts exemptions shall not apply.

The property exemptions created under this Code shall not be claimed against the following debts:

1. For the purchase price of such property or any part thereof. If the property purchased and not paid for is exchanged for or converted into other property by the debtor, such last named property shall not be exempted from the payment of such unpaid purchase money.

2. For spousal or child support obligations.

Code 1919, § 6531; 1918, p. 487; 1956, c. 637; 1986, c. 218; 1990, c. 942; 1991, c. 256; 2010, c. 550.

§ 34-6. How exemption of real estate secured; form to claim exemption of real property.

In order to secure the benefit of the exemptions of real estate under §§ 34-4 and 34-4.1, the householder, by a writing signed by him and duly admitted to record, to be recorded as deeds are recorded, in the county or city wherein such real estate or any part thereof is located or, if such property is located outside of the Commonwealth, in the county or city in the Commonwealth where the householder resides, shall declare his intention to claim such benefit and select and set apart the real estate to be held by the householder as exempt, and describe the same with reasonable certainty, affixing to the description his cash valuation of the estate so selected and set apart. However, if such real estate is claimed exempt in a case filed under Title 11 of the United States Code, the official Schedule of Property Claimed as Exempt filed in the United States Bankruptcy Court claiming such exemptions shall be sufficient to set apart such property as exempt. Equitable as well as legal estates may be so selected and set apart. The following form, or one which is substantially similar, shall be used and shall be sufficient for the writing required by this section:

HOMESTEAD DEED FOR REAL PROPERTY

Name of Householder __________________

Name of title holder of record (if different)

__________________

Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1? ________________

Address of Householder __________________

Name(s) and age(s) of dependent(s) __________________

County/city/state in which real property claimed as exempt is located

__________________

__________________

Description of property claimed as exempt

__________________

__________________

Value of property described above __________________

Number of homestead deeds that have been filed by the Householder

__________________

Exemption amount previously claimed on prior homestead deeds

__________________

List the jurisdictions where previous homestead deeds were filed

__________________

__________________ (Signature of Householder)

__________________ [ACKNOWLEDGMENT]

Such writing or deed shall not be required to secure any exemption under this Code except those exemptions created by §§ 34-4 and 34-4.1.

Code 1919, § 6532; 1990, c. 942; 1993, c. 150; 1998, c. 331; 2008, c. 224; 2019, c. 492; 2020, c. 328.

§ 34-7. Real estate, subject to encumbrances, may be set apart; if sold, how surplus disposed of.

Such real estate may be selected and set apart as aforesaid, subject to any paramount encumbrances thereon. If a sale be had to satisfy the encumbrances, the surplus of the proceeds, if any, not exceeding the amount to which the householder is entitled under § 34-4, shall be paid to the householder and invested by him in such other property as he may select.

Code 1919, § 6533.

§ 34-8. Partition or sale of real estate held as exempt by joint tenant, etc.

If the estate so set apart be held by the householder as joint tenant, coparcener or tenant in common, partition or sale may be had as provided by Article 11 (§ 8.01-96 et seq.) of Chapter 3 of Title 8.01 and in case of sale the share of the proceeds to which the householder is entitled shall be paid to the householder and invested by him in such other property as he may select.

Code 1919, § 6534.

§ 34-9. How real estate set apart as exempt may be encumbered or aliened.

Real estate set apart as aforesaid may be sold and conveyed as other real estate held by the householder and the proceeds invested in other property, or it may in like manner be exchanged for other property, but in no case shall the purchaser be bound to see to the application of the purchase money.

Code 1919, § 6535.

§ 34-10. Repealed.

Repealed by Acts 1981, c. 580.

§ 34-13. Householder may set apart exemption in personal estate.

If the householder does not set apart any real estate as before provided, or if what he does or has so set apart is not of the total value which he is entitled to hold exempt, he may, in addition to the property or estate which he is entitled to hold exempt under §§ 34-26, 34-27, 34-29, and 64.2-311, in the first case select and set apart by the writing required by § 34-14 to be held by him as exempt under §§ 34-4 and 34-4.1, so much of his personal estate as shall not exceed the total value which he is entitled to hold exempt and, in the latter case, personal estate, the value of which, when added to the value of the real estate set apart, does not exceed such total value.

Code 1919, § 6539; 1975, c. 466; 1980, c. 167; 1990, c. 942; 1993, c. 150.

§ 34-14. How set apart in personal estate; form to claim exemption of personal property.

Such personal estate selected by the householder under § 34-4, 34-4.1, or 34-13 shall be set apart in a writing signed by him. He shall, in the writing, designate and describe with reasonable certainty the personal estate so selected and set apart and each parcel or article, affixing to each his cash valuation thereof. Such writing shall be admitted to record, to be recorded as deeds are recorded in the county or city wherein such householder resides. However, if such personal estate is claimed exempt in a case filed under Title 11 of the United States Code, the official Schedule of Property Claimed as Exempt filed in the United States Bankruptcy Court claiming such exemptions shall be sufficient to set apart such property as exempt.

The following form, or one which is substantially similar, shall be used and shall be sufficient, when duly admitted to record in the county or city in which the householder resides, to exempt such described personal property from creditor process:

HOMESTEAD DEED FOR PERSONAL PROPERTY

Name of Householder __________________

Is the householder a disabled veteran entitled to claim the additional exemption under § 34-4.1? ________________

Address of Householder __________________

Name(s) and age(s) of dependent(s) __________________

County/city in which householder resides ____________________________________________________________

Description of property claimed as exempt and its value

__________________

__________________

Number of homestead deeds that have been filed by the Householder

__________________

Exemption amount previously claimed on prior homestead deeds

__________________

List the jurisdictions where previous homestead deeds were filed

__________________

__________________ (Signature of Householder)

__________________ [ACKNOWLEDGMENT]

Such writing or deed shall not be required to secure any exemption under this Code except those exemptions created by §§ 34-4, 34-4.1 and 34-13.

Code 1919, § 6540; 1990, c. 942; 1993, c. 150; 2010, c. 186; 2020, c. 328.

§ 34-15. Repealed.

Repealed by Acts 1981, c. 580.

§ 34-17. When exemption may be set apart; garnished wages.

A. The real or personal estate that a householder is entitled to hold as exempt may be set apart at any time before it is subjected by sale under creditor process or by a trustee in bankruptcy, or, if such creditor process does not require sale of the property, before it is turned over to the creditor.

B. A claim of homestead exemption to protect garnished wages may be filed by the debtor after the garnishment summons is served on the employer but prior to or upon the return date of the garnishment summons and shall be considered by the garnishing court.

Code 1919, § 6543; 1944, p. 489; 1974, c. 272; 1981, c. 580; 1985, c. 521; 1990, c. 942; 2003, c. 1000; 2005, c. 367; 2020, c. 328.

§ 34-18. Rents and profits exempt; increase in value of estate set apart.

The rents and profits of the property set apart shall be exempt in the same manner as the corpus of such property and if the whole real and personal estate set apart be not of greater value than the amount the householder is entitled to exempt at the time it is so set apart, the exemption thereof shall not be affected by any increase in its value afterwards, unless such increase consists of permanent improvements placed upon real estate set apart by means derived from some source other than exempt property.

Code 1919, § 6544; 1975, c. 466; 1977, c. 496; 1990, c. 942.

§ 34-19. How excess in value set apart subjected to debts.

Any creditor, against whom an exemption is claimed, may file a bill in equity, alleging that the value of the estate at the time it was set apart was more than the amount the householder is entitled to exempt or, that by reason of permanent improvements made on the real estate after it was set apart by means derived from some source other than exempt property, the whole estate set apart is of greater value than the amount the householder is entitled to exempt. If the court is satisfied from the proofs in the cause that the allegations of the bill are true, it shall make such decree or order as may be necessary to subject the estate set apart, so far as it exceeds the amount the householder is entitled to exempt, to the payment of the debt or demand of such creditor.

Code 1919, § 6545; 1975, c. 466; 1977, c. 496; 1990, c. 942.

§ 34-20. Proceeds of sale of estate exempt; how evidenced.

The estate or property in which proceeds of sale are invested, or which may be acquired in exchange, under any of the preceding sections of this chapter, shall be held exempt in like manner and to the like extent as the estate sold or exchanged was held. But such estate or property when acquired in exchange or otherwise than by investment under an order of court, or unless when set apart by a court, shall be set apart, if real estate, by such a writing as is prescribed by § 34-6; if personal estate, by such a writing as is prescribed by § 34-14; and such writing shall be recorded as provided by the same sections, respectively. In addition to the requirements of such sections, the writing shall state from what source the estate was derived and with what means acquired. When such estate is invested or set apart under an order of court, a copy of the order and of any report of a commissioner or other officer making the investment thereunder, if confirmed, and a copy of the order of confirmation, duly certified by the clerk of the court, shall be recorded in the deed book of the county or city wherein the writing, if the estate had been set apart by a writing, is required to be recorded.

Code 1919, § 6546.

§ 34-21. When householder's right to exemption is exhausted.

When an amount of property, whether real or personal, or both, has been set apart to be held by a householder as exempt under § 34-4, 34-4.1, or 34-13, such amount shall for a period of eight years from such setting apart be applied against the maximum amount to which the householder is entitled to set apart as exempt under § 34-4, 34-4.1, or 34-13.

Code 1919, § 6547; 1975, c. 466; 1977, c. 496; 1990, c. 942; 1996, c. 330; 2020, c. 328.

§ 34-22. Waiver of exemption; its effect; form of waiver.

If any person shall declare in a bond, bill, note or other instrument by which he is or may become liable for the payment of money to another or by a writing thereon or annexed thereto that he waives, as to such obligation, the exemption from liability of the property or estate which he may be entitled to claim and hold exempt under the provisions of this chapter, such property or estate, whether previously set apart or not, shall be liable to be subjected for such obligation, under legal process, in like manner and to the same extent as other property or estate of such person. But such waiver shall not extend to or affect the exemption of the property or estate exempt under §§ 34-26, 34-27 and 34-29. The following or equivalent words shall be sufficient to operate as the waiver hereinbefore provided for: "I (or we) waive the benefit of my (or our) exemption as to this obligation." If a debt which is superior to the homestead, or as to which the homestead is waived, be paid off by a surety therein, the principal shall not be allowed to claim the homestead as against such surety.

Code 1919, § 6548.

§ 34-23. How claim enforced when exemption waived, etc.

In any proceeding for the enforcement of a claim, which by reason of the waiver aforesaid or otherwise, is paramount to the exemption, if there be in the county or city wherein the proceeding is estate of the debtor other than that which has been set apart as aforesaid, such other estate shall be subjected and exhausted before the estate so set apart is resorted to. If, however, the claim is secured by mortgage, deed of trust or other specific lien on the estate set apart, nothing in this section contained shall prevent the enforcement of the security in the first instance and before resorting to other estate of the debtor.

Code 1919, § 6549; 1974, c. 272; 1981, c. 580.

§ 34-24. When the exemption ceases; lien of judgment or decree against householder.

When any person, entitled as a householder to the exemption provided for in § 34-4, ceases to be a householder or when any person removes from this Commonwealth, his right to claim or hold any estate as exempt under the provisions of this chapter, shall cease; but the lien of a judgment, or decree for money, rendered against a householder, and which is not paramount to the exemption provided for in this chapter, shall, as to the real estate held as exempt by him, attach to such only of that estate as he may be possessed of or entitled to at the time the exemption thereof ceases, as aforesaid, and until that time the lien shall not be enforced. Such judgments shall attach in the order of their priority, respectively, subject to the provisions of Article 2 (§ 64.2-309 et seq.) of Chapter 2 of Title 64.2.

Code 1919, § 6550; 1972, c. 825; 1974, c. 272; 1981, c. 580.

§ 34-25. When homestead waived judgments and executions to so state.

Whenever a judgment or decree is rendered on an instrument waiving the homestead or upon a demand against which the homestead cannot be claimed the court shall include in its judgment or decree words to the following effect, as the case may be: "Upon an instrument waiving the homestead," or "upon a claim against which the homestead cannot be demanded." This statement shall be endorsed upon the executions issued upon such judgments or decrees. In any action or suit when it is not apparent from the face of the pleadings that the demand is not subject to the homestead exemption the plaintiff shall not have the benefit of the foregoing provision of this section unless in his declaration he alleges that his demand is not subject to such homestead exemption. But no presumption of nonwaiver or that the judgment or decree was rendered upon a demand against which homestead could be claimed is to be drawn from the silence of any judgment, execution or decree on the matters provided for by this section.

Code 1919, § 6551.