                     EA~~ORNEY                  GENERAL
                               OF-TEXAS

PRICE DANIEL
ATTORNEY
       GENERA,.

                         December    20. 1950   ’


     Non. Robert S. Calvert
     Comptroller of Fublic Accounts
     Audin, Texas                      Opinion No. V-l 135

                                        Ra:   Eligibility of a hounc or
                                              house trailer located ,on
                                              leased land for residence
                                              homestead tax exemption.

     Dear Mr. Calvert:

                  Your request states that a recent audit of the 1950
     Tax Roll from Victoria County reflector that the tax ,a8sessor-
  “‘,’
     collector of that county has in a number of in&awes allowe’d the
     taxpayer to claim a homestead exemption on a house located on
     leased land. In other instances the exemption war, allowed on
     house trailers located on leased land. Based on theB,efacb you
     have requested our opinion on the following queltionr:

                 1. Does the homertead exemption with ref-
         erence to taxation (Article VIII, Section l-a. Con&i-
         tution of Texas; Article TQ4%, Section 2, Vernon’s
         Civil Statutes) extend to a dwelling located on leased
         land and occupied by the family as a home?

                 2. Is a house trailer of ouch a nature and eub-
         ject to such use as to acquire the stattu of a dwelling
         and come witbin the homestead exemption?

                   Section 51 of Article XVI of the Texas Constitution
     rete out the constitutional requirements of a homestead as follows:

                  “The homestead, not in a town or city, shall
         consist of not more than two hundred acres of land,
         which may be in one or more parcelr, with the im-
         provements thereon; the homestead in a city, town
         or village. shallconsistof lot or lots, not to exceed
         in value five thousand dollars, at the time of their
         designation as the homestead, without reference to
         tbe value of any improvements thereon; provided,
         that the same shall be used for the purposes of a
      Hon. Robert 6. Calve&     page 2 (V-1135)



          home, or as a place to exercise the calling or
          business of the head of a family; provided alao,
          that any temporary renting of the homestead
          shall not change the character of the same, when
          no other homestead has been acquired..

                    Article 3833, Vernon.8 Civil Statutes, repose   there
      larue   proviaioru in defining the term ‘homertead.e

                   13ia well settled that the homertead exem$ioa doei
      not. red upon ownership in fee of the land upon which $be etruc-
      ture ir rituated. Wheatlay v. Griffin, 60 Tex. 209 (1883); Cul-
      lerr v. James, 66 ‘I’ex. 494 1 S W 314 (1886)f Fir& NatiBBank
      V.    0mua4r, k41 S.W. 199 iTex.‘Civ. App. 1922). Any poreeuory
      Tiatereet rn%nd less than the fee simple title ie eufficient to en-
      title a claimant to the benefito of the provi#iona of the homertead
      law and ‘it followa logically that the homestead right and privila~
      attacher to a tenement or building, coupled with the required oc-
      cupancy, erected upon leaned or rented premieee.” Firrt Nation-
      al Banh v. Dismukes. su ra. Further, a poase~aory%Itetest,       even
      %hOUghOnly permissive+ I) wafficient to support the cbini of home-
      stead exemption where it ia peaceably held and occupied a8 a home
      by tie family. Birdwell v, &rleeon,~lt     S.W. 446 (Tex. Civ. Aep.
      1,902:irror refq.

                     Nor would it appear that the leaae on a pwticular lot
       or tract of land would have to be of long tima duration. Aa raid
       in First National Bank v. Dismukes, au ra, “where a head of a
       faniily is in the exclusive posireasion,-5aa ere, of a lot. . . OcCO-
       pied by him as a . . . homestead, it does uot concern the judgment ~’
       creditor whether such claimant possessee a leare for a kmg term
      ‘of pars or of less duration.”

                    You are therefore  advised in aamwer to yoor fir8t ~
        uertion that the homestead exemption with reference to taxation
       ?Article VIII, Section 1-a; Con&it&on   of Texan, and Article 78488,
       *3&8.~) does apply to a dwelling located on leaeed laud aud OCCU-
      ,$h&bf,,a family under such condition9 a6 to mahe it a &nemtiad.’

                    Your second question canuot be answered cahlpr-
 ,.   .icr;r&. The queationof whether a particular _ dw@ug    ir entitled
4z,~,~,,tuexemption ,from taxation as the hotMntead of Oe owner OCcUpp-
      ,i‘ngthe same am such is one of fact requiring indepeudent deter-
      ~miuatiti in each instance. Arto v. Maydole, 54 Ten. 244 (188l)t
       #%hper Co. v. Werner, 11 S-d       U&3 (Tax. Civ. App. 1937). Like-’
      ~a,     whether the homestead &trader has become fixed le t0
Hon. Robert S. hlvert,    page 3 (v-1135)



specific property i8 a fact question. Alamo Lumber Co, v.
Walkarc 103 S.W.2d 792 (Tex. Civ. A&TV?).

            In common acceptance the term ‘homestead* meanm
the residence of the family, the place where tb honn is. 40
C.J.S. 430, Homesteads, Sec. 1. “A homestead necessarily    in-
cludea the idea of a house for a reeideace, or maneion house.
The dwellings may be a splendid mansion, a cabin, or tent.”
Garret v. Getaendaner, 115Okla. It, 242 Pac. 525 (1925).

              Coming now to a determination of whether a house
trailer may meet the requiremeate necessary to make it a home-
rtead, we find only two Texas calem which have pamed on the
question. In the firat came, Clark v. Vitz, 199 S.W.2d 736 (Tex.
Civ. App. 1945, error ref.), &e nemption wao allowed, but the
factr clearly ertablished that the house traileF had in effect
been made a part of the claimant’s home and ‘1188wed by the
family as a part of tbe home. In the lecoud came, Gann v. Mout-
          210 S.W.td 255 (Tex. Civ. App. 1948, error ref. n.r.o.),
   e court refused the homelrtead exemption, sayiug~
l!F=

             “Aseuming for tbe purpose of argument that
    appellant did have such poamermory i&exert la the
    land upon which tbe trailer warn parked lo would oup-
    port the homestead claim, we muet decide wketker
    the trailer was ouch type of ltrucume as to aome with-
    in the rule which regard6 the houae a# part of the land,
    witbin tbe contemplation of the coustitutioru%l provision.
            u
                . .   .


            “It is settled that the exemption may be claimed in
    a house owned by the claimant, tboughtbe Iaad bslong to
    another. Where the ownership of ,a hotme is in one person,
    and the ownership of the land is in mother, tie house may
    properly be referred to for some purposes aa a chattel,
    and in such a case it might properly, be aaid tbat the home-
    rtead exemption can attach to a chattel. Etutit does not
    follow that the exemption can attach to any kind of chattel,
    merely because the chattel rests on a tract of land by per-
    mission of the owner of tbe land. . . .
            . . . . To hold that the homestead exemption ap-
    plieo to tbe trailer in tbe case before us would be to
.




      ~Rcn. Robert S. Calvert,   pa~ge4 (V-1135)



           hold, as a practical matter, that it applies to al-
           most every trailer which is occupied by the owners,
           if they constitute a family which does not own another
           home. It is not unreasonable to assume:that they are
           usually parked, when they are not traveling along the
           highways, on some plot of ground with the permission         .~
           of the owner of the ground. It might be consistent with
           the policy of our homestead laws to enact another law
           exempting automobile trailers wbich,are occupied.as
           homes, but. . . there are no exemptions except those
           provided by law, and the courts cannot protect that
           which is not a homestead.”


                   Thus it is to be observed that the question of home-
      stead status with respect to house trailers must be determined
      from all the facts and circumstances, in each individual case,.
      It may or ‘may not acquire a homestead status, depending upon
      the particular facts and circumstances.    In our opinion the courts
    ” of Texas would find a house trailer to be a homestead if located
      on land owned by or in which the claimant held a possessory in-
      terest. and was so used in connection with the land and occupied
      by a,far&)y in such a manner as to give it the factual character-
      istics of a home. On the other hand, were the trailer not so
      used, as in the Gann case, it would not be held to be a homestead.
                #




                                   SUMMARY


                   The exemption’from taxation 'as a homestead
           (Article VIII, Section l-a, Constitution of Texas,, and
           Article 7084a, V.C.S.) extends to a dwelling’ located
           on leased land and occupied by the family as a home.
           Firat National Bank v. Dismukes, 241 S.W. 199 (Tex.
           cb. App;9             ouse   al er may become exempt
           as a homestead, depending upon the facts and circum-
           stances in each’individual case. Clark v. Vitz, ~190
           S.W.td 736 (Tex. Civ.~App. 1945, error ref.); Gami
                     .

    :;r~r~wt~~10         8.W.2d 255 (Tix.Cb.     App.,1948,   ”                     _I,,

                                                                                j
                             Vert,bd)    mm       ,,,.                          /
                                                                       :        ;~
                                                                  I:       .,
                             ‘PRIcEpANiEL
                              Attorney Oeneral      ‘,,‘.’



APPROmDt
                                  Charles D. Mathawi
-w. v. oeppert                    Fir& Aarirtant
Tsxation Divhfoa

Everett Hutchi~Ison
Executiw Assistant

Price Daniel                                                                    ,

Attorney   General
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