Massachusetts laws
MGL c.188 Homesteads:
- Automatically protects up to $125,000 in home equity without filing
- Protects up to $500,000 for those who file for homestead protection
- Allows both spouses to file
- Clarifies that there is no need to re-file after refinancing
- Provides coverage for homes kept in trusts and much more
Forms
Declaration of homestead for homes owned by natural persons, Mass. Secretary of Commonwealth.
File with your local Registry of Deeds. Can be filed by mail with notarized signatures and check. Filing fee is $35 for the state but check with your Registry of Deeds for any additional county fees.
Declaration of homestead for homes owned by trustee(s), Mass. Secretary of Commonwealth.
Selected cases
Boyle v. Weiss, 461 Mass. 519 (2012)
Under 2004 (not 2010) law, "a holder of a beneficial interest in a trust which holds title to real estate and attendant dwelling in which such beneficiary resides may not acquire an estate of homestead in said land and building under G.L. c. 188, § 1. "
In Re Desroches, 314 BR 19 (2004)
Homestead protection was denied where the mortgage was filed after an earlier homestead declaration and mortgage did not specifically reserve the debtor's homestead rights.
Hartog, Baer & Hand, A.P.C. v. Clarke, 99 Mass. App. Ct. 460 (2021)
"A judgment creditor may levy on an execution upon property protected by homestead and then suspend any further action to collect on the execution until the homestead has lapsed or the homeowner's equity in the home exceeds the amount protected by the homestead exemption."
In re Shove, 585 BR 250 (2018)
The debtors' use of a portion of the property for commercial purposes does not remove the property from the protection of homestead exemption claimed under Massachusetts law. The building does not have to be used predominantly as their home. "This Court does not read the Homestead Statute as imposing a predominant use requirement."
Homestead and bankruptcy
Massachusetts Law
- MGL c.235, § 34 (cl.14) Bankruptcy exemption for estates of homestead
Selected Case Law
- In Re Cunningham, 354 BR 547 (2006)
- Where land subject to the bankruptcy debtor's homestead exemption was sold, the exemption protected the sale proceeds from any obligations acquired before the debtor filed the bankruptcy petition.
- In Re Weinstein, 217 BR 5 (Bkrtcy. D. Mass., 1998)
- Agrees with Whalen-Griffin and goes on to include both unsecured and secured pre-homestead debt under bankruptcy protection.
- In Re Whalen-Griffin, 206 BR 277 (Bkrtcy. D. Mass., 1997)
- Court said that federal bankruptcy statute preempted Massachusetts homestead exemptions. Effect is to protect homesteads from liens, even where debts are incurred prior to homestead recording.
Web sources
Deeds and homestead releases, Lowell Deeds Blog.
Discusses the issues involved with a non-titled spouse and the transfer of property.
Homestead, Lowell Deeds Blog.
Collection of blog posts from the ever-helpful Lowell Register of deeds. Explains the law in some detail.
Homestead protection, MassLegalHelp.org.
Explains homestead protection and how to file for it.
The Homestead Protection Act, Mass. Secretary of State.
Includes a questions and answers pamphlet on who may file, where to file, and an overview of the protections homestead offers and forms.
Massachusetts Registry of Deeds, Mass. Secretary of State.
Provides links to all of the Registries of Deeds, which then provide access to addresses, phone numbers and websites for the individual registries.
Print sources
Bankruptcy practice in Massachusetts, 1st ed., MCLE, loose-leaf, Chapter 8.
How to navigate the ongoing complexities of the Homestead Act, MCLE, 2020.
Latest techniques for middle class estates, MCLE, 2016.
Contact
Online
| Last updated: | May 22, 2023 |
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