25. Homestead

(May 1, 2000, revised February 27, 2009). This Guideline was superseded by the Chief Title Examiner memo dated March 16, 2011. This memo can be found linked under the 'Related' section on the right-hand side of the page.

1. Estates of homestead may be acquired pursuant to G.L. c. 188, § 1, and, by persons 62 years of age or older, or by disabled persons, pursuant to G.L. c. 188, § 1A. A claim of homestead must be in the deed or a later instrument in writing, signed, sealed and acknowledged. It should contain a statement that the person claiming the homestead occupies or intends to occupy such property as his or her principal residence.
2. A declaration of an estate of homestead to be acquired under Section 1 of the statute may be accepted for registration with the understanding that the court, by accepting the document, is not adjudicating the validity or effectiveness of the filing, which may be determined at a future date by a court of competent jurisdiction. A declaration of homestead will be accepted for filing and will be noted as a “Purported Homestead.” Subject to the further caveat that the court’s acceptance of a declaration of homestead will not constitute the court’s determination of the validity or effect of the filing:
   1. Only one party who holds title as tenant by the entirety may file a declaration of homestead under Section 1 of the statute for the benefit of his or her family;
   2. All parties who hold title as tenants in common may file declarations of homestead;
   3. No party who holds title as trustee as to any interest, may file a declaration of homestead as to the interest held as trustee;
   4. All parties who hold title as joint tenants may file declarations of homestead; and

   5. Life tenants may file declarations of homestead.

      The Court will not prohibit multiple filings of homestead declarations, with the understanding that multiple filings by parties who are related may not be valid or effective, and that the acceptance of said filings by the Court is not a judgment on the validity of said filings or the impact of the filing of subsequent declarations on the validity of the initial filing.

3. The amount of an estate of homestead acquired under Section 1 has been increased by the legislature; it is now $500,000.00.
4. A section 1 homestead estate is acquired for the benefit of the declarant's family. The word “family” is defined as a parent and child or children, a husband and wife and their children, if any, or a sole owner.
5. Under Section 1A of the statute, the principal residence, including real property or manufactured home, of a person 62 years of age or older, regardless of marital status, or of a disabled person, is protected to the extent of $500,000 per qualified person who declares the homestead. The Section 1A homestead estate is available to each individual who has an ownership interest in the property and qualifies by reason of age or disability.
6. A disabled person is an individual who has any medically determinable permanent physical or mental impairment, which would meet the disability requirements for supplemental social security income under the U.S. code. Such persons must file with any claim of homestead:
   1. An original or certified copy of a disability award letter issued by the United States Social Security Administration; or
   2. A letter signed by a physician licensed in Massachusetts certifying that the claimant meets the disability requirements of the United States Code.
7. As the Social Security Administration will not issue certified copies of the award letter, claimants are limited to a physician’s letter or the original award. Claimants should be advised that original documents are not returned from the Registry District.
8. There are several obligations of the owner which are exempt from the protection afforded by the Homestead Act, see sections 1 and 1A.
9. Termination

   1. Both the regular and the elderly or disabled homestead can be terminated by

      • a conveyance of the property subject to homestead signed by the owner and the owner’s spouse without a specific reservation of homestead;
      • a signed, sealed and acknowledged release by the owner and the owner’s spouse filed in the appropriate Registry District;
      • the acquisition of a new estate or claim of homestead; and
      • the abandonment of a residence.

      The elderly or disabled homestead is also terminated by:

      • a sale or transfer of real property or manufactured home, or the declarant’s interest therein, during the declarant’s lifetime;
      • the death of the surviving declarant;
      • a deed conveying the homestead property signed by the declarant;
      • a signed, sealed and acknowledged release of a homestead in real property by the declarant filed in the appropriate Registry District; and
      • a signed, sealed and acknowledged release of the claim of homestead in a manufactured home filed with the appropriate city of town clerk’s office.
   2. Execution of a mortgage with mortgage covenants subordinates any homestead interest to the mortgage lien, Atlantic Savings Bank v. Metropolitan Bank and Trust Company, 9 Mass. App. Ct. 286 (1980), provided both spouses are mortgagors or otherwise joined in the mortgage.
   3. Homestead is a matter of fact and proof claimant has claimed homestead elsewhere, has abandoned the residence, or has never used the property as a principal place of residence will be sufficient cause to strike from the encumbrance sheet. This can be accomplished by a Supplemental Petition.

10. Problem Period - Where Minor Children Are Involved - December 5, 1977 Though August 30, 1979.

    Homesteads created between December 5, 1977 and October 18, 1978, can be released only by the guardian of the property of minor unmarried children of the homesteader by the license of the probate court, unless the instruments creating the homestead specifically reserved the right to release the interests to the children. Between October 18,1978 and August 30, 1979, parents could release the right for their children, but they had to indicate clearly that they were doing so. After August 30, 1979, a homestead can be terminated by simply executing a deed of the premises.