Megan Guetzkow, et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1328

Megan Guetzkow, et al.,
Respondents,

vs.

Brian John Irgens (OID No. 247545),
Appellant,

and

all other persons unknown having or claiming an interest
in the property described in the Complaint herein,
Defendants.

Filed May 2, 2022
Affirmed
Larkin, Judge

Pope County District Court
File No. 61-CV-21-119

Gerald W. Von Korff, Rinke Noonan, Ltd., St. Cloud, Minnesota (for respondents)

John G. Westrick, Savage Westrick, P.L.L.P., Bloomington, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant judgment debtor challenges the district court’s grant of summary
judgment to respondent s judgment creditor s in their declaratory-judgment action to
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determine the validity of appellant’s notice of homestead for property that he inherited but
had never occupied. Because current or former occupancy is a requirement of Minnesota’s
homestead exemption, and it is undisputed that appellant ha d never occupied the subject
property, we affirm.
FACTS
Respondents Megan Gue tzkow, on behalf of her minor daughter E.I., and Mariah
Guetzkow, have a judgment for damages in the amount of $841,621.15 against appellant
Brian Irgens. 1 The award of damages was based on Irgens’s sexual abuse of the minor
respondents. Irgens was criminally convicted for that sexual abuse and is currently serving
a 144-month executed prison sentence, which began in 2015.
Irgens inherited 1.56 acres of real property in Pope County (the Property) while
incarcerated.2 On August 2, 2018, Irgens’s attorney recorded a notice of homestead for the
Property on his behalf. The notice asserted that
2. The [P]roperty is claimed by [Irgens] as
[Irgens]’s dwelling place.
3. [Irgens] intends to occupy upon release from
incarceration as his homestead.
4. [Irgens] claims that, to the extent permitted
thereunder, the Property continues to be [Irgens]’s homestead
under Minn. Stat. Ch. 510 even though [Irgens] is not
occupying the [P]roperty.

1 This court affirmed the award of damages. Guetzkow v. Irgens, No. A19-2075, 2020 WL
4743464, at *1 (Minn. App. Aug. 17, 2020), rev. denied (Minn. Oct. 28, 2020).

2 Irgens inherited the Property upon his father’s death in April 2018. A deed of distribution
purportedly conveying the Property to Irgens was recorded in Pope County on June 27,
2019.
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In a 2019 deposition, Irgens admitted that he had never lived at the Property, that he
did not keep personal possessions at the Property, and that he did not claim the Property’s
address as his residence on his driver’s license. He explained that he claimed the Property
as his homestead because “[i]t was [his] preferred place of residence” after his release from
prison.
Respondents initiated the underlying action in 2021 , alleging that Irgens had
wrongfully claimed the Property as his homestead and had “resisted collection efforts” on
the judgment. 3 Respondents sought a declaratory judgment that the 2018 notice of
homestead was “fraudulently modified” and that the Property “does not qualify as a
homestead.” Respondents also sought to determine their adverse claim to the Property.
Respondents moved the district court for summary judgment. They included
excerpts from Irgens’s 2019 deposition testimony as evidence that Irgens ha d never
occupied the Property. They also included a copy of a pro se motion to dismiss that Irgens
mailed to respondents’ attorney after receiving respondents’ complaint.
The district court considered and denied Irgens’s motion to dismiss . The district
court granted respondents’ motion for summary judgment, reasoning that Irgens could not
claim a homestead exemption because he did not own the Property when he applied for the
exemption and because he had never occupied the property.
Irgens retained counsel and sought permission to request reconsideration of the
district court’s grant of summary judgment , arguing that he became the owner of the

3 Collection efforts included docketing the judgment in Pope County with intent to execute
a judgment lien on the Property and sell it at a sheriff’s sale.
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Property upon his father’s death in April 2018. The district court denied the request for
reconsideration, reasoning that “[e]ven if [Irgens] were the owner, it remains undisputed
that [Irgens] never occupied the premises.” Irgens appeals.
DECISION
A district court “shall grant summary judgment” if “there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ.
P. 56.01. We review a grant of summary judgment de novo. Riverview Muir Doran, LLC
v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010).
Minnesota statutes provide that a “house owned and occupied by a debtor as the
debtor’s dwelling place . . . shall constitute the homestead of such debtor . . . and be exempt
from seizure or sale . . . .” Minn. Stat. § 510.01 (2020). It is established law that
the test to be used in determining whether the house is ‘owned
and occupied’ by the debtor should be whether the ownership
and occupancy affords a community con nection of such
significance as to give reason to believe that the preservation
of that connection will in the long run make the debtor and his
family better able to fulfill their social obligation to be self -
sustaining.

Denzer v. Prendergast, 126 N.W.2d 440, 444 (Minn. 1964).
However, “actual residence upon the premises ” is necessary to establish a
homestead. First Nat’l Bank of Mankato v. Wilson, 47 N.W.2d 764, 767 (Minn. 1951). “It
has never been supposed that a homestead could exist without actual occupancy.” In re
Baillif’s Est., 41 N.W. 1059, 1059 (Minn. 1889). The “test to be used in determining”
whether a homestead exemption may be claimed presumes both “ownership and
occupancy.” Denzer, 126 N.W.2d at 444. Even though the occupancy requirement is given
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a “reasonable construction,” “‘[a]ctual occupancy, as distinguished from mere possession
. . . is the prominent idea associated’” with a homestead. Muscala v. Wirtjes, 310 N.W.2d
696, 698 (Minn. 1981) (quoting Clark v. Dewey, 73 N.W. 639, 639-40 (Minn. 1898)).
The undisputed facts show that Irgens had n ever occupied the Property when he
claimed the homestead exemption in 2018.4 Irgens was incarcerated at that time. Indeed,
the notice of homestead states that Irgens claims the Property as his homestead “even
though [Irgens] is not occupying the [P]roperty.” Moreover, Irgens admitted in deposition
testimony that he had never resided at the Property, claimed it as his residence, or kept his
personal possessions at the Property.
In In re Est. of Bonde, this court determined that a decedent did not establish
“occupancy for purposes of homestead classification” and that the property at issue “should
be classified as non -homestead.” 694 N.W.2d 74, 78 (Minn. App. 2005). This court
reasoned that “the decedent had not resided in the . . . home for over twenty years, not even
seasonally” and that “[a]side from a few furnishings,” the decedent “kept her personal
effects” at another home “where she had lived . . . sinc e 1978.” Id. Irgens’s claim to the

4 Although Irgens submitted an affidavit in district court stating, “I have resided, occupied,
and used as a dwelling the [Property] in the pa st,” that statement is inconsistent with his
deposition testimony that he had never resided at the property. Irgens’s affidavit did not
attempt to explain that inconsistency. Nor did it provide any details regarding his alleged
use of the Property as a d welling. The district court correctly determined that Irgens’s
statement regarding his use of the Property as a dwelling contradicted his deposition
testimony and therefore could not create a genuine issue of material fact for the purpose of
avoiding summary judgment. See Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881
(Minn. App. 1995) (“A self-serving affidavit that contradicts earlier damaging deposition
testimony is not sufficient to create a genuine issue of material fact. ”). Irgens’s attorn ey
does not rely on Irgens’s contradictory affidavit in this appeal or assign error to the district
court’s rejection of it.
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homestead exemption is weaker than the claim in Bonde because it is undisputed that Irgens
has never resided at the Property.
Irgens argues that an incarcerated person should be allowed to c laim a homestead
exemption based on intent to occupy a property in the future, if the person is unable to
establish occupancy due to incarceration . He relies on a statute that allows a property
owner to preserve his existing homestead rights against a presumption of abandonment if
the owner is absent from the property “for more than six consecutive months.” See Minn.
Stat. § 510.07 (2020) (allowing an absent owner to “file with the county recorder of the
county in which [the property] is situated a notice . . . describing the premises and claiming
the same as the owner’s homestead). He also relies on caselaw stating that a person under
a legal disability such as incarceration or involuntary commitment does not abandon his
homestead for purposes of the abandonment statute. See Eustice v. Jewison, 413 N.W.2d
114, 118 (Minn. 1987) (holding that a decedent had not abandoned h is homestead even
though he had not lived there for eight years because he was under an involuntary
commitment order and was not “free to return to his home”).
Irgens’s reliance on such law is unavailing. The abandonment statute presumes the
prior establishment of a valid homestead, including occupancy. See Minn. Stat. § 510.07
(stating the statute applies if the owner “shall cease to occupy” their homestead (emphasis
added)). Moreover, the issue of occupancy was not before the Eustice court; in that case,
it was undisputed that the decedent had resided at the homestead property until his arrest
and resulting involuntary commitment. 413 N.W.2d at 116. Here, it is undisputed that
Irgens has never resided at the Property.
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Irgens further argues that if he cannot claim the Property as his homestead, then “the
sale . . . should at least be tolled until [he] has had the opportunity to actually occupy the
premises.” We reject that proposition because it is inconsistent with the legislature’s policy
decision that th e homestead exemption —and its attendant protection from creditor
claims—does not apply unless the debtor occupied the property. Allowing Irgens to claim
the protection of the homestead exemption based on his intent to occupy the Property in
the future, or allowing him to avoid debt c ollection efforts until he is able to occupy the
Property, is inconsistent with Minnesota statutes and caselaw. See Muscala, 310 N.W.2d
at 698 (holding that “[i]ntent does not grant a continuing exemption” from the homestead
statutes). Such a policy change is for the legislature or Minnesota Supreme Court and not
this court . See Sefkow v. Sefkow , 427 N.W.2d 203, 210 (Minn. 1988) (“The function of
the court of appeals is limited to ide ntifying errors and then correcting them.”); Tereault v.
Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (“[T]he task of extending existing law falls
to the supreme court or the legislature, but it does not fall to this court.”), rev. denied (Minn.
Dec. 18, 1987).
Finally, Irgens makes an argument that was not contained in his briefing. He argues
that he has established occupancy because he keeps his personal possessions at the
Property. As support, he notes that he inherited and now owns all of his father’s personal
possessions, which are currently located on the Property.
Irgens’s argument that occupancy may be established based on the presence of his
inherited personal property in a home where he has never resided is as novel as his assertion
that occupancy may be established based on his intent to occupy the property in the future.
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Recognition of a homestead exemption under these circumstances could be based only on
a policy decision to extend the homestead exemption beyond currently established limits
and to remo ve the occupancy requirement for incarcerated persons in certain
circumstances. We are not at liberty to change existing law based on policy decisions. We
therefore hold that Irgens is not entitled to claim a homestead exemption for the Property,
and respondents are entitled to judgment as a matter of law.
Affirmed.