Dear Mr. Williams:
This office is in receipt of your request for an opinion of the Attorney General relative to homestead exemptions. You ask if an heir in a succession who resides in the property may claim a homestead exemption before obtaining a judgment of possession.
Under Article 7, Section 20 of the Constitution of 1974 a person is entitled to a homestead exemption on property that is "owned and occupied" by that person. The Louisiana Supreme Court in discussing seizing and ownership has held in Baten v. Taylor, 386 So.2d 333 (La. 1979), "Ownership, on the other hand, is transmitted by operation of law at the moment of death to heirs and legatees designated by the Code, regardless of whether they have seizin of a particular succession or whether they can ever have seizin. . . . For example, although a legatee under a particular title cannot acquire seizin, he has ownership of the thing bequeathed to him from the day of the testator's death." (Emphasis added.)
For a homestead exemption the constitutional requirement is for occupancy and ownership. While the title may not be recorded in an heir's name, under the law he has ownership from the moment of the testator's death. In Culligan Water Cond. Inc. v. Heirs of Watson, 370 So.2d 129 (La. App 1979), cert. denied., 373 So.2d 525, the court recognized that the interest of the deceased vested in her heirs at her death, and stated the title to property acquired by inheritance does not require recordation to be effective against third persons. The court quoted Jackson v. D'Aubin,338 So.2d 575 (La. 1976), which stated, "The law of registry is inapplicable where the ownership of . . . immovable property. . . has been acquired by inheritance and title has become vested by operation of law".
However, while an heir has ownership and occupies the property, the question must be considered if he is the sole heir to the property. An heir who occupies property but is not the sole owner would not be entitled to the exemption as an owner indivision. Atty Gen. Op. Nos. 88-278, 80-337. Of course, in the Constitution an exception is made for the surviving spouse and minor children, specifying they are entitled to the homestead exemption.
Therefore, we find an heir who is otherwise qualified to a homestead exemption, may obtain the exemption before having a judgment of possession since his ownership commences from the moment of the testator's death. An affidavit establishing that the party is heir to the described property should suffice as evidence of the ownership.
We hope this sufficiently answers your question, but if we can be of further assistance, please do not hesitate to contact us.
Sincerely yours,
WILLIAM J. GUSTE, JR. Attorney General
BY: BARBARA B. RUTLEDGE Assistant Attorney General
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