concurring.
I concur in the result of this case. I agree that one of the issues is whether Mr. Stenzel occupied any portion of the 155 acres in question. As the majority opinion notes, the exact size of this parcel has not been determined. In accordance with the majority opinion, I will also call it the 155-acre parcel. On remand, the exact size of this parcel should be determined.
A separate parcel has been identified as a five acre parcel. I believe that is incorrect. It may become important because a debtor in Minnesota may not claim more than 160 acres as a homestead. The legal description on the deed conveying the small parcel where Stenzel’s home is located is: “31 rods off from the West side of the South half of the Northwest Quarter of Section 31 ...” No mention is made in the deed of any number of acres. Nothing was platted. This, of course, is not a metes and bounds description. If you multiply 31 rods (i.e. 511.5 feet) by 1,320 feet (the length of the South half of the Northwest Quarter) you have 675,180 square feet. Since there are 43,560 square feet in one acre the parcel is obviously, as a simple matter of mathematics, 15.5 acres, not five acres. The bankruptcy court and the parties failed to look at or explain this matter of mathematics. Thus, we could not be talking about combining the 155 acres with a five acre parcel. Subtracting 15.5 acres from 160 acres leaves only 144.5 acres possibly available from the possible *951155 acres as part of Stenzel’s entire homestead.
I believe we should not state that Sten-zel “uses a portion” of the 155-acre parcel for farming. Apparently, sometime prior to and at the time of the bankruptcy filing, Mr. Stenzel was using no 'portion of the 155-acre parcel for anything. The 148 tillable acres had been leased by Stenzel’s mother to a third party; certainly Stenzel had no right to be interfering with the tillable acres and the leasehold rights. As a remainderman, Mr. Stenzel would have had no right to interfere with the use by the life tenant as well (unless, of course, waste was being committed). Mr. Stenzel had not farmed the tillable acres or used them for anything else since the late 1980’s. Stenzel had ceased using, prior to filing for bankruptcy, even the small area (part of the 155-acre parcel) on which sheds had been used by Stenzel earlier to raise hogs. I agree with the conclusion of the BAP that Stenzel had no “legally valid present possessory interest” in the 155-acre parcel. Nevertheless, as the majority opinion states, this is apparently not the controlling legal standard under Minnesota law.
I do not think we should state that Stenzel “had express permission from his mother to occupy the 155-acre parcel for fanning purposes.” Stenzel’s mother had already executed and recorded a deed reserving only a life estate to herself and naming Stenzel and his sisters as the “remainder-people”. The two sisters held 2/3 of the total remainder interest. For all we know, the two sisters did not want to ultimately have Mr. Stenzel farming the land. At a minimum, all these issues are factual issues to be determined on remand. I frankly do not understand how Stenzel’s mother could legally grant permission for Mr. Stenzel to occupy or use any of the tillable acres after she had leased that land to a third party who was paying the rent to her and after she had conveyed a remainder interest to three people. There is nothing in the record as to any oral or written agreement between Stenzel and his mother. I do not understand how the bankruptcy court could possibly have found that Stenzel “occupied” the tillable acres “with the permission of the life tenant.” I agree with the majority opinion that the bankruptcy court did not answer the question whether the 155-acre parcel is part of the “land upon which [Stenzel’s house] is situated” and the question should first be addressed there. I also agree with the majority opinion that the bankruptcy court erroneously came to the conclusion that Stenzel’s ignorance of his 1/3 remainder ownership interest in the 155-acre parcel is irrelevant. I do not agree with language in the majority opinion that this fact is “hardly dispositive.” I believe it may well be entirely dispositive. Minnesota law is clear that a debtor’s intent is relevant and that there must be a bona fide intention of occupying the 155-acre parcel as part of the homestead. See Clark v. Dewey, 71 Minn. 108, 73 N.W. 639, 640 (1898). I have great difficulty understanding how Stenzel, a person who was not using or living on the 155-acre parcel when he filed for bankruptcy, a person who apparently had no knowledge of any remainder interest that he or his sisters had in the parcel, and a person who apparently thought he had no ownership or occupancy interest of any kind, can claim retroactively (after a creditor has discovered the interest), that he did have a homestead covering such real estate and so intended. If anything, it seems to me that Mr. Stenzel intended to not have any interest of any kind in the 155-acre parcel. Otherwise, he would have reported it as an asset in his bankruptcy filing and he did not do so. I do not believe that, in this context, intent can exist in the presence of ignorance.
*952I am troubled by some of the concepts employed by the bankruptcy court. Reference was made to Stenzel’s “intentions” for the land. Reference is made to a possible “resumption and continuation.” I fail to understand how Mr. Stenzel could have intended any future use of the 155-acre parcel when he obviously would have known the tillable acres were leased to a third party and Stenzel had no information about his 1/3 remainder interest. I agree with the remand since the bankruptcy court should determine in the first instance exactly what Stenzel’s intentions were and the factual basis for any such intentions. I would be surprised if a person may legally claim a homestead interest based upon some aspiration (however unrealistic it may be) to later (on some unknown date) occupy and use a parcel. I have not heard of any legal concept that homestead rights as of the date of filing may be based on “future intentions”, “wishes”, “hopes” or “aspirations.” The bankruptcy court found that it was “undisputed” that Stenzel was “even then (I assume the bankruptcy court was referring to the time of filing) maintaining its physical integrity (I do not understand this at all as to Mr. Stenzel - or as to any of this real estate) for the resumption of his past patterns of usage as soon as it was economically feasible ...” These are, very frankly, legal concepts that I have not previously encountered. If Mr. Stenzel hoped to sometime resume the occupancy, this would seem to me to rule out “present occupancy.” I do not understand what standards could be used to judge whether and when future use and occupancy might become “economically feasible”, especially given the dire economic conditions farmers and ranchers now face in our country.
This is a difficult case. Our task as federal judges, whether Article III or bankruptcy judges, is made difficult by what the majority opinion in a kindly manner refers to as a “pragmatic” approach by Minnesota state courts in determining the extent to which contiguous farmland qualifies for a homestead exemption.