Read CA CCP's that pertain. See nothing to prevent a sympathetic judge allowing an exemption. A precedent against an exemption would sure help.
Owner has lived on vessel for 5 years but commercial mooring facility has no live aboard policy. They turn blind eye as they do allow for watchmen/security. Has had a few short breaks in his slip rental history (went fishing) so not permanently affixed. Moved 4 months ago to new facility.
I doubt he filed homestead exemption or has paid property taxes. That forces burden of proof on him that the boat is his residence.
Only proof he lives aboard is slip fee's and witnesses. He has used private mail box service, has no utility bills, etc. Although he has had no other residence for years.
Getting Court ruling would show my hand an he may flee.
I should clarify that the mooring facilities have a "No Live Aboard" policy.
There is an interesting case below which points out that the interest must be the person's interest, and denied homestead to someone who put the propery in a corporation.
Thus entity may be a factor. A commercial vessel that is sole proprietor comes closer than if it were held in an entity.
My search analogy was to look for someone who lived in their own commercial warehouse but I see nothing affirmatively on point, but rather see a block where the entity is owned by a corp.
Does it do actual commercial fishing?
Might it be a hobby under IRS rules and therefore not be commercial?
Might it be a personal boat which is furnished to an entity for fishing on occasion?
How is it insured?
Lots of questions here; no answers; only one case of interest.
Good Luck in finding out this elusive principle.
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.
Chapter 7 Bankruptcy Attorney
The applicable code provision regarding the CA homestead exemption states as follows:
704.710. As used in this article:
(a) "Dwelling" means a place where a person resides and may
include but is not limited to the following:
(1) A house together with the outbuildings and the land upon which
they are situated.
(2) A mobilehome together with the outbuildings and the land upon
which they are situated.
(3) A boat or other waterborne vessel.
Thus, it appears that a boat/waterborne vessel can be exempted under 704.730. Based upon the facts provided it sounds as though the boat may qualify for the exemption. I don't know that the no live aboard policy of the facility is determinative, but it is an argument against exemption, but not really strong in my opinion given the other facts. Also, is this asset a personal residence or a business asset. It could be interpreted as either.
Also, the question would be why isn't the Chapter 7 or 13 trustee challenging the exemption. The are looking out for money to pay credtiors so they might have thought of challenging the exemption and then liquiding the asset to pay creditors.
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Statute cited by Mr. Wilson seems to answer the question. I assume he can testify he lives on the boat, which meets the burden of proof, and you concede that he has had no other residence for years, and lived on the boat for 5 years.