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Massachusetts Law About Homestead

Massachusetts Laws

MGL c.188 Homesteads

Forms

Homestead Forms

Selected Case Law

In Re Cunningham, 354 B.R. 547 (2006). Where land subject to debtor's homestead exemption was sold, the exemption applied to the sale proceeds.

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.

In Re Garren, 338 F. 3d 1 (2003). Debtor was not allowed to "stack" two homestead exemptions in order to avoid judicial lien on his property.

In Re Hildebrandt, 313 B.R. 535 (2004). Debtor's failure to reserve homestead exemption in conveyance of property from debtor and a tenant in common to the debtor terminated the Homestead.

In Re Kelly, 334 BR 772 (2005). Debtor may not claim a homestead exemption, pursuant to MGL. Ch. 188, sec. 1, in a manufactured mobile home. Although MGL Ch. 188, sec. 1A provides for such protection, section 1 does not. "The most persuasive argument that subsection 1 does not include a manufactured home, however, is the fact that subsection 1A does provide for such a homestead."

In Re Vasques, 337 BR 255 (Bkrtcy. D. Mass., 2006). [Only one family member may file] Daughter who co-owned residential property was member of same "family" as mother and therefore protected by mother's declaration of homestead without either the obligation or ability to file a declaration of homestead on her own behalf.

Walsh v. Yarossi, Mass. Land Court, December 5, 2006. A prejudgment attachment filed before a homestead declaration is a valid preexisting lien, negating the homestead protection, even when the judgment is obtained after the homestead.

North Registry District of Bristol County v. Spinelli, 38 Mass. App. Ct. 655 (1995). "the homestead statute does not provide for the application of the statute to property held in trust."

Homestead and Bankruptcy

Massachusetts Law

MGL c.235, s.34 (cl.14) Bankruptcy exemption for estates of homestead

Selected Case Law

In Re Weinstein, 217 B.R. 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.

Other

How to File for Chapter 7 Bankruptcy, Nolo.com, Appendix 1. State-by-state listing of State and Federal bankruptcy exemptions, including homestead. Library card needed. Requires Library Card for access.

Other Web Sources

Homesteads, Lowell Deeds Blog. Addresses the critical question: Do I have to re-file my homestead if I refinance my mortgage?

The Homestead Act Questions and Answers, Mass. Secretary of State. "This webpage has been designed to answer some of the basic questions asked every day pertaining to the Homestead Act." Includes who may file, where to file, and an overview of the protections homestead offers.

Homestead Information from Registries of Deeds:

Norfolk Registry of Deeds answers: If two people own the home, do they both fill out separate Homestead forms?. "Section 1: Homestead Declaration under Section 1 may be filed by an owner of a home for the benefit of his or her family. Although only one owner files, a declaration filed by one spouse benefits both, and their children. Section 1A: An elderly (age 62 or older) or disabled person may declare a Homestead under Section 1A. The Section 1A homestead benefit does not extend to other family members, but each qualified owner may file separately."

You Can Protect Your Family's Home -- Even if Someone Sues:" A Guide to The Homestead Act, Suffolk Registry of Probate. Provides a handy list of "qualifiers" to see if you can file a homestead.

Print Sources

Estate Planning for the Aging or Incapacitated Client in Massachusetts. MCLE, loose-leaf, vol. 2, Chapter 18 (Includes forms).

Massachusetts Practice, vol. 5 (Methods of Practice) West Group, 2000 with supplement, sec. 5:4-5:7 (Includes forms); vol. 28 (Real Estate Law), West Group, 2004 with supplement, sec. 6.8-6.16 and forms at secs. 61.16, 61.17, and 61-34.

Massachusetts Registries 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.