A. A homestead may be abandoned by any of the following:
1. A declaration of abandonment or waiver.
2. A transfer of the homestead property by deed of conveyance or contract for conveyance.
3. A permanent removal of the claimant from the residence or the state. A claimant may remove from the homestead for up to two years without an abandonment or a waiver of the exemption.
B. A declaration of abandonment or waiver shall be executed by the claimant and acknowledged. A declaration of abandonment or waiver is effective only from the time of its recording in the office of the county recorder in the county in which the homestead property is located.
C. This article shall not be construed to repeal the provisions of section 25-214, subsection C, pertaining to the acquisition, conveyance or encumbrance of community property.
D. Any recorded consensual lien, including a mortgage or deed of trust, encumbering homestead property shall not be subject to or affected by the homestead claim or exemption.
E. Notwithstanding the provisions of subsection A, paragraph 2 of this section, a transfer of the homestead property by deed of conveyance or contract for conveyance under a trust, as defined in section 14-1201, in which the claimant retains the power to administer and revoke the trust shall not constitute an abandonment of the homestead.
Notes of Decisions
Cited in
17
cases (
1 in the last 5 years), 1958–2023 · leading case:
Pac. W. Bank v. Castleton, 434 P.3d 1187 (Ariz. Ct. App. 2018).
Pac. W. Bank v. Castleton, 434 P.3d 1187 (Ariz. Ct. App. 2018).
· cites it 5× “Abandonment of the Homestead ¶18 PWB next argues that even if the homestead exemption prevented the Judgment Lien from attaching to the Home, the Sepics abandoned the protection of the homestead, and the superior court erred by finding otherwise. As relevant here, a homestead…”
Herberman v. Bergstrom, 816 P.2d 244 (Ariz. Ct. App. 1991).
· cites it 4× “Accordingly, the lender could refuse to make the loan unless the borrower waives the homestead declaration, A.R.S. § 33-1104, or the lender could make the loan with or without a waiver.”
Rogone v. Correia, 335 P.3d 1122 (Ariz. Ct. App. 2014).
“In addition, § 33-964(B) provides that a recorded judgment shall not become a lien on any homestead except as provided under § 33-1103, and § 33-1104 articulates the ways by which a person may abandon a homestead.”
Gaughan v. Cavan (In Re Strasser), 303 B.R. 841 (D. Ariz. 2004).
· cites it 2× “A.R.S. § 33-1104(A)(2). Finally, even if the funds were exemptible under state law, which they are not, the exemption is lost by application of the bankruptcy code, due to debtor’s voluntary transfer of the proceeds.”
State v. Smith, 628 P.2d 65 (Ariz. Ct. App. 1981).
· cites it 2× “Appellant’s presentencing expression of willingness to sell his home in order that restitution might be accomplished must be interpreted as a willingness to waive his homestead exemption rights.”
Morrisey v. Ferguson, 753 P.2d 1192 (Ariz. Ct. App. 1988).
· cites it 2× “The abandonment statute, A.R.S. § 33-1104, applies only after a valid exemption has first been established.”
Zachary Ober & Jennifer Ober (Bankr. E.D. Pa. 2020).
· cites it 11× “Because the Debtors moved out of the Arizona Property less than two years prior to filing this bankruptcy case, a presumption arises under Ariz. Rev. Stat. § 33-1104 (A)(3) that the Debtors had not abandoned the Arizona Property as of the petition date.”
In re Fix, 542 B.R. 502 (Bankr. D. Mont. 2015).
“§ 33-1101, which was not waived because no waiver was recorded under Ariz. Rev. Stat. § 33-1104 . Ex. 2 is a Montana cadastral “Property Record Card” for 21335 Old U.”
Phlegar v. Elmer, 325 P.2d 881 (Ariz. 1958).
“She bottoms this contention upon the provisions of section 33-1104, A.R.S., which states:that a “homestead may be abandoned only by a declaration of abandonment or waiver, or by a grant thereof * * These two sections of the homestead law must be construed together in order to…”
Arthur Benson Moore (Bankr. D. Ariz. 2019).
· cites it 3× “3 Ariz. Rev. Stat. Ann. § 33-1104 (A)(1)-(3).”
Rogone v. Sasser (Ariz. Ct. App. 2017).
· cites it 2× “¶8 The Rogones contend the court should have conducted an evidentiary hearing to determine whether Rose “intended to permanently remove herself from the Bronco Trail Property and thereby abandon her homestead” under A.R.S. § 33-1104(A)(3). Rose supported her claim with two…”
Stange v. Johns, Jr. (Ariz. Ct. App. 2019).
· cites it 2× “A homestead may be abandoned by “a permanent removal of the claimant from the residence or the state.”
— Ariz. Rev. Stat. § 33-1104(A) — 1 case
Pac. W. Bank v. Castleton, 434 P.3d 1187 (Ariz. Ct. App. 2018).
“Abandonment of the Homestead ¶18 PWB next argues that even if the homestead exemption prevented the Judgment Lien from attaching to the Home, the Sepics abandoned the protection of the homestead, and the superior court erred by finding otherwise. As relevant here, a homestead…”
— Ariz. Rev. Stat. § 33-1104(A)(2) — 2 cases
Gaughan v. Cavan (In Re Strasser), 303 B.R. 841 (D. Ariz. 2004).
“A.R.S. § 33-1104(A)(2). Finally, even if the funds were exemptible under state law, which they are not, the exemption is lost by application of the bankruptcy code, due to debtor’s voluntary transfer of the proceeds.”
— Ariz. Rev. Stat. § 33-1104(A)(3) — 5 cases
Pac. W. Bank v. Castleton, 434 P.3d 1187 (Ariz. Ct. App. 2018).
“Abandonment of the Homestead ¶18 PWB next argues that even if the homestead exemption prevented the Judgment Lien from attaching to the Home, the Sepics abandoned the protection of the homestead, and the superior court erred by finding otherwise. As relevant here, a homestead…”
Rogone v. Sasser (Ariz. Ct. App. 2017).
“¶8 The Rogones contend the court should have conducted an evidentiary hearing to determine whether Rose “intended to permanently remove herself from the Bronco Trail Property and thereby abandon her homestead” under A.R.S. § 33-1104(A)(3). Rose supported her claim with two…”
Stange v. Johns, Jr. (Ariz. Ct. App. 2019).
“A homestead may be abandoned by “a permanent removal of the claimant from the residence or the state.”
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