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(978) 835-5906
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The Commonwealth of Massachusetts provides homeowners with an estate of “homestead,” also referred to as the homestead act or a homestead deed, to protect the possession and enjoyment of the owners and their family against the claims of certain creditors by preventing the property from execution and forced sale, as long as such person occupies or intends to occupy such property as his or her principal place of residence.
In December 2010, Massachusetts updated Massachusetts General Law, chapter 188, §§ 1-10, originally enacted in 1851, giving homeowners expanded protection and also clarifying several ambiguities in the previous homestead law.
An estate of homestead is a type of protection for a person’s principal residence. Even if you don’t declare a homestead exemption with the Registry of Deeds, you’ll still benefit from an automatic homestead protection of one hundred and twenty-five thousand dollars ($125,000).
While this automatic protection may be sufficient to protect a deposit made upon your estate, it’s not likely enough coverage to protect the full value of your home. To protect the value of your property up to five hundred thousand dollars ($500,000) per residence, per family, you must file a document called a "Declaration of Homestead." You can file this form at the Registry of Deeds in the county or district where your property is located, referencing the title/deed to the property.
Homestead forms, or homestead deeds, are filed at the Registry of Deeds in the county in which the residence is located. The recording fee is $35.
Related: What Does it Mean When a Seller Pays for Closing Costs?
The Homestead Act provides protection for your primary residence, including manufactured homes, where you and your family reside or plan to reside. By filing a homestead declaration, you are safeguarded against attachment, seizure, execution on judgment, levy, or sale for debts up to $500,000 per residence, per family.
The Homestead declaration provides benefits to all owners listed on the homestead, as well as any family members who currently occupy or plan to occupy the home as their primary residence. Each family member is allowed to utilize, occupy, and enjoy the home.
(1). The new law provides additional protections to spouses that are not listed as owners in their principal residences. For example, protection extends automatically to a new spouse where an unmarried person declared a homestead and later marries.
(2). Also, divorcing spouses are protected against the loss of homestead through termination or divorce. Neither divorce nor remarriage will affect the homestead of the spouse who still primarily resides in the home.
(3). If you are purchasing your new principal residence, your closing attorney must provide you, as a mortgagor, with notice of your right to declare a homestead protection. At that time, you will be asked to acknowledge receipt of this notice in writing.
The homestead law does not protect against the following:
(1). Any sales for federal, state and local taxes, assessments, claims, and liens;
(2). Any mortgages on your home;
(3). Any Probate Court executions aimed at enforcing judgments for spousal support, former spousal support, or support for minor children;
(4). Any buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot where they stand;
(5). Any court-issued execution aimed at enforcing its judgment due to fraudulent activities, errors, duress, undue influence, or lack of mental capacity;
(6). Any liens on the home recorded prior to the creation of the homestead.
No, absolutely not! It is important to note that homestead protections do not serve as a replacement for home insurance or any other form of liability insurance. These are distinct types of protection that serve different purposes. Homestead protection comes into effect only after insurance has been utilized to cover any liability incurred under that specific insurance policy, such as home or automobile insurance.
If you are 62 years of age or older, or disabled regardless of age, the Homestead Act provides crucial protection for your real property or manufactured home. This protection shields your principal residence from attachment, seizure, execution on judgment, levy, or sale in order to settle debts. Regardless of whether the declaration is filed individually or jointly, each individual filing as elderly or disabled is granted protection up to a maximum amount of $500,000. For elderly individuals, regardless of marital status, there is a personal exemption of up to $500,000 each. In cases where two owners qualify for elderly or disabled homestead protection, the aggregate protection on the home increases to $1,000,000.
(1). It is important to note that the elderly or disabled homestead protection will cease upon the individual's passing. If there are multiple owners and only one qualifies for elderly or disabled homestead protection, it is advisable to file a separate homestead declaration for each owner to preserve the family's right to use, occupy, and enjoy the home.
(2). Furthermore, it is essential to seek the guidance of an attorney if there are dependent minor children under the age of 21 residing with elderly or disabled homeowners. This will ensure that a child's right to utilize, occupy, and relish the home is adequately protected. Remember to utilize the appropriate homestead form when submitting your documents.
The law defines a disabled person as an individual who has any medically determinable permanent physical or mental impairment that meets the disability requirement of supplemental social security income.
(1). For the purpose of the law, an individual is considered disabled if he or she cannot engage in any gainful employment as a result of the physical or mental impairment.
(2). If you are declaring a homestead to benefit a disabled person, it is necessary to include either an original or certified copy of the disability award letter issued by the United States Social Security Administration, or a certification letter signed by a licensed physician registered with the Massachusetts Board of Registration in Medicine.
(3). Disabled persons must meet the disability requirements stated in 42 U.S.C. 1382c(a)(3)(A) and 42 U.S.C. 1382c(a)(3)(C) as in effect at the time of recording.
All homestead declarations are automatically subordinate to a home mortgage that is executed by all of the home’s owners. If you previously executed a mortgage that included a waiver of the homestead protection, the "new" law applies to your existing homestead. This “waiver” is treated as a subordination, and the previously recorded homestead remains in full force.
As a result, you don’t need to immediately file a new homestead declaration after you refinance, take out a second mortgage or a home equity line of credit (HELOC).
You may still want to refile in certain cases. Under the new law, you can file a new declaration without penalty because the subsequent declaration relates back to the previous declaration.
If there are multiple owners, any mortgage executed by fewer than all of the owners is still subject to homestead, and is considered superior only to the homestead estate of those owners who are parties to the new mortgage, their spouses and minor children, if any. The homestead protections of any owners who were not parties to the new mortgage would remain intact.
It is strongly advised that consumers consult a licensed attorney for assistance in properly recording a declaration of homestead.
Closing attorneys in mortgage transactions should provide borrowers with a notice of the availability of a homestead.
The information on this Web site is not legal advice, but for informational purposes only. This information is not designed to provide any legal advice or address the practical effect of an estate of Homestead. As in all areas of the law, to fully understand your rights, you should consult an attorney of your choice. Please read the full disclaimer.
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