The remainder of this article will address these general principles. The inherent conflict in applying statutes grounded in 19th century social policy to cases arising today must be kept in mind because it is this inherent conflict that courts struggle with in their opinions.Īlthough courts, when dealing with homestead issues, are likely to seek equitable resolutions to particular cases, general principles have developed in homestead law. Thus, when anticipating a court's application of the homestead right in a particular case, consideration must be given to the social policy behind homestead rights. Because the concept of a homestead is rooted in social considerations, courts will frequently seek to find equitable resolutions for specific cases instead of announcing broad rules. Ultimately a practitioner must consider the policy behind the homestead laws as they are applied to the family unit as it exists today. Alternatively, a persuasive argument may be made that homestead rights still effectuate society's interest in promoting stability within the family structure.
As the family unit evolves from a single to a dual wage-earner structure, one may argue that the social policy rationale behind homestead rights is becoming an anachronism. Unfortunately, the task of interpreting a homestead statute is not easy because many of these statutes were written in the 19th century to protect a family unit that has drastically changed. These rights are created by statute and their application is largely a matter of statutory interpretation.
Homestead rights were established to protect society's interest in providing a stable family residence. This article will provide a basic explanation of the nature of homestead rights in Illinois and a brief explanation of homestead issues involving married couples. Practitioners are often confronted with issues of who is entitled to claim a homestead interest and who must sign a waiver of homestead interest when homestead property is being conveyed. One particularly confusing area of homestead law involves the rights of married couples where only one spouse is a titleholder. A failure to recognize and properly address the pitfalls created by homestead rights may result in a cloud on a property's title. Homestead rights frequently present a threat to the marketability of residential property.