Saturday, January 30, 2010
James Tawney (2010 J.D. candidate, Texas Tech University) has published his comment entitled Calling All Criminals, Our State Will Protect Your Crack House: Homestead Protection's Application to Forfeiture Resulting From Criminal Conduct, 2 Estate Plan. & Community Prop. L.J. 227 (2009).
The introduction to the comment is below:
As America continues to criminalize conduct, state courts struggle to hold on to the value that homestead protection represents. At the same time, homestead protection becomes limited because of new laws prohibiting criminal conduct and the illegal use of property. This comment addresses whether homestead protection should exempt property from forfeiture that has resulted from criminal conduct or illegal use of the property. Upon addressing this issue, this comment justifies the need for states to adopt legislation that specifically allows forfeiture of the homestead. To defend this assertion, Part III discusses the history and intentions behind both homestead protection and forfeiture of assets in America. part IC examines cases highlighting the argument that states should not allow the seizure of a person's property protected under homestead exemption. Part V focuses on case law holding that forfeiture law trumps homestead protection. Part VI of the comment addresses how federal law applies to state homestead protection and why the federal courts allowed federal forfeiture statues to preempt state homestead protection. In addition to the history of homestead protection and forfeiture, this comment uses case law to show that states must adopt legislation that prohibits the use of homestead protection as a defense against forfeiture resulting from criminal conduct.