In re Kimble

Case No. 05-53517, Ch 7 (Judge Hoffman May 25, 2006)

Trustee objected to Debtors’ exemption under the homestead provision of Ohio Revised Code § 2329.66(A)(1)(b) claiming that a remainder interest in the property is not exemptible under Ohio law.  The parties stipulated that the Debtors have lived in a mobile home on the property since 1993.  Debtors had a verbal agreement permitting them to reside on the property.

The Trustee argues that the Debtors’ remainder interest does not entitle them to the property’s present possession or use.  He also argues that the oral lease is not enforceable under the statue of frauds. 

The Court explains that they do have a lease for present possession and that the trustee has no standing to object to the oral agreement where there is no dispute between the parties to the agreement.

Ohio courts have yet to address the question of whether the holder of a remainder interest in real property on which he/she resides may claim a homestead exemption in that property if it is subject to the rights of a life tenant.   Therefore the Court must make the ‘best prediction, of what the Supreme Court would do if confronted with the question

The Court finds that the Debtors have an interest in the Property and that it has been continuously used as their residence since September 1993.  Thus, the Debtors may claim the property exempt as a homestead under Ohio Revised Code § 2329.66(A)(1)(b).