Massachusetts Homestead Protection Act

by Bill Gassett on March 26, 2010 · 91 comments

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Massachusetts Homestead Protection Act

Massachusetts Homestead Protection Act

The Massachusetts Homestead Protection Act is one of the biggest no- brainers for any homeowner in Massachusetts to take advantage off.

Quite simply, an estate of homestead is protection for a persons residence from most creditors. The declaration of homestead protects the equity in your home for up to $500,000 in the event you are sued. In other words, if you are sued, $500,000 of your equity could not be touched by an attachment and subsequent levy on execution of sale. Unfortunately today we live in a litigious sue happy society. The chances of getting into an accident and someone suing you can not be overlooked!

The Homestead form is filed at the registry in the county that your home is located in.  All that is required is the preparation and recording of a Declaration of Homestead and the payment of a state recording fee. The total cost is typically around $100 to prepare and record the instrument. You could ask your attorney to prepare this document for you or possibly even the lenders attorney if you don’t have legal representation with your home purchase.

If you are married it only needs to be filed by one person and the other spouse is protected as well. You will typically see this document filed at the registry with all the rest of the closing papers on the purchase of a home.

There are some things that the homestead declaration does not protect against.

The following are exempt from the Homestead Law:

  • Federal, state and local taxes, assessments, claims, and liens;
  • Mortgages used to purchase the residence, and in the case of the elderly homestead, first and second mortgages held by financial institutions or others;
  • An execution issued from the Probate Court to enforce its judgment that a spouse pay for the support of a spouse or minor children;
  • Where buildings on land not owned by those declaring of a Homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand;
  • Upon an execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, mistake, duress, undue influence or lack of capacity;
  • Debts contracted prior to the acquisition of the homestead.

The protection only extends to one primary residence. You can not have homestead protection on multiple properties.

Changes to Homestead Protection Act

There are some changes that have been proposed that would change how the mechanics of how the Massachusetts Homestead Protection works.

The new bill was filed on January 2nd 2010 and is known as House Bill No.1584. Below is a summary of the changes:

Automatic Homestead. The bill as proposed would automatically provide protection up to $125,000 of home equity for all homeowners, regardless of whether the homeowners have filed a declaration or not. Homeowners who record a homestead declaration would still receive protection of their equity up to $500,000.

Signature. A flaw in the homestead protection statute is that only one of the owners may file a homestead in any home. Under the current statute, joint owners, including spouses, currently have to decide which of them is more likely to have liability for a claim that is not covered by insurance or who is more likely to get sued. The proposed Bill would allow both spouses to file, even if only one spouse is named on the title.

Second Homestead. Under the new Bill, a second homestead filing would relate back to the date of the first filing. This would protect against liability incurred between the two filings that could compromise the second declaring parties equity.

Trust. Completely changing the current statute, the Bill would provide protection to beneficiaries of trusts that hold title to the residence, provided that the home is, in reality, the beneficiaries’ principal residence.

Transfer of Title Between Spouses and Co-owners. Currently, spouses or co-owners who transfer title between themselves without explicitly retaining homestead rights inadvertently terminate their right to protection. Under the new homestead protection act, transfers among family members will not terminate a previously declared homestead  even if the homestead is not reserved in the deed.

Home Sale Proceeds. Under the current homestead protection law there is no protection for homeowners who sell their home and do not immediately reinvest the proceeds in a new principal residence. With the new revision proceeds from the sale of a home would be protected for up to a year and two years for casualty/insurance proceeds.

Mortgage. Lastly, the Bill would prohibit mortgage lenders from requiring homeowners to terminate their homestead rights in order to secure a mortgage.

Whether these new modifications take place or not, having Massachusetts Homestead protection is one of the wisest investments any home owner can make!

UPDATE ~ As of December 2010 the Massachusetts Homestead amendment has passed. The highlights of the bill as described above are the automatic homestead protection up to $125,000 without having to file a homestead document at the local registry, homestead remaining valid if the home is transferred to another family member, homestead remaining in force under a refinance, as well as providing additional protection for home owners who receive insurance proceeds from fire or other damages.

The homestead protection act also now provides coverage for those who have put their home in a trust. Lastly, closing attorneys in mortgage transactions must now provide borrowers with a notice of availability of a homestead.

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About the author: The above Real Estate information on the Massachusetts Homestead Protection Act was provided by Bill Gassett, a Nationally recognized leader in his field. Bill can be reached via email at billgassett@remaxexec.com or by phone at 508-435-5356. Bill has helped people move in and out of many Metrowest towns for the last 24+ Years.

Thinking of selling your home? I have a passion for Real Estate and love to share my marketing expertise!

I service the following towns in Metrowest MA: Hopkinton, Milford, Upton, Southboro, Westboro, Ashland, Holliston, Mendon, Hopedale, Medway, Franklin, Framingham, Grafton, Northbridge, Shrewsbury, Northboro, Bellingham, Uxbridge, and Douglas.

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{ 91 comments… read them below or add one }

Bill Gassett May 24, 2011 at 1:13 pm

Tina you will file the Homestead declaration in the registry of deeds for the county in which you are located.

May August 7, 2011 at 1:00 pm

My husband and I are looking into homestead insurance because we pay our bills, but I am unemployed and have not found a job so far and am running out of time. If I do not get a job in time, I want to protect our home from creditors if it comes to that point. We have a 718 credit score, so we pay our bills, but if I do not get a job we will not be able to pay some of our creditors.

Will our home be protected, we are an older couple and we have a 12 and 19 years children we are all very scared at this point. I even went back to school to enhance my resume as an Executive Assitant.

Warmest regards.

Bill Gassett August 7, 2011 at 3:16 pm

May the equity in your home would be protected to the extent that a creditor could not force you to sell your home to pay them back. This would apply to creditors you owed money to after the homestead was placed. It will not protect you against a lender who holds the mortgage to your property or a creditor who has placed a lien on the home prior to you filing for Homestead. I would speak to a lawyer about your specific situation.

joseph pucillo October 3, 2011 at 4:40 pm

I have a letter from a Attorneys stating a judgment against us. We do have a Homestead filed in Massachusetts. They have not put a lien against our home as of yet. I don’t know what I can do to protect our home from this. Do I have to get a declaration and do i still have time? Thank you.

Bill Gassett October 3, 2011 at 7:27 pm

Joseph what you wrote does not make much sense. You write that you have a homestead filed and then go on to ask if you need to get a homestead and do you still have time? Do you have a Massachusetts Homestead Declaration or not? The Homestead will only protect you from not being forced to sell your home for the equity you may have. You do can still file for a homestead if you have not done so already.

jeremie October 25, 2011 at 8:31 pm

Does the homestead protection act effect property tax at all?

Bill Gassett October 25, 2011 at 8:56 pm

Jeremie there is no effect that I am aware of as far as the Massachusetts Homestead Protection act and taxes.

Fred S. Tarbox Jr. November 28, 2011 at 6:34 pm

Does The Homestead Act also protect your money? I am covered by The Homestead Act.

Bill Gassett November 28, 2011 at 6:39 pm

Fred the Massachusetts Homestead Protection Act protects the equity in your home from creditors. It does not protect other assets.

Fred S. Tarbox Jr. November 28, 2011 at 6:50 pm

Does the $500,000 coverage also include what money you have or only what the house is worth?

Bill Gassett November 28, 2011 at 6:52 pm

Fred it is the equity in your home. It has nothing to do with anything else.

Bob Brinkman December 7, 2011 at 3:18 pm

Hi Bill, I’ve got a question for you. Do liens filed by a condo association or HOA count as “first and second mortgages held by financial institutions or others;” which are exempt from the homestead protection? Can an HOA foreclose on a homestead protected Condo for a lien?

Bill Gassett December 7, 2011 at 4:31 pm

Bob this is a very good question. My best guess is that they could not force a sale with Homestead protection in place but to be sure I would consult with an attorney.

maria December 13, 2011 at 1:33 pm

Hi Bill I have a question. I filed for homestead on 11/14/11 it was recorded on 11/15/11. A creditor put a levy on my home on 12/8/11 and it recorded 12/9/11. What does this mean? One day I came home and the sheriffs department stuffed the papers in the door. Can creditors put a lien on your home for $5000? I don’t really know to much about this. I am doing a lot of reading on it. I will pay them back when I start working again. I just wanted to know is this something to worry about right now or do I have time to repay?

Bill Gassett December 14, 2011 at 2:49 am

Hi Maria – with Massachusetts homestead protection in place up to $500,000 of your equity is protected from creditors. If the loan was made to you before the homestead was put on your home then you do not have protection. If the loan was made after then your equity is protected and they can not force you to sell your home to collect the debt.

Mary December 16, 2011 at 2:58 am

Hi,Bill I have a question. When I bought my house on 2008 I had put homestead protection but in the same year I got a 5000.00 loan.1 yr later I refinanced my home and lost my homestead protection. That same year I lost my job and I couldn’t paid my loan. So this year (2011), I decided to put a homestead again on the property just in case they put a lien on my home. Could the homestead protect me from a lien even if the loan was done in 2008 . Thank you

Bill Gassett December 16, 2011 at 11:58 am

Mary the question becomes whether of not you had homestead protection before the loan was granted to you. If the loan was done first then you have no protection from that creditor from collecting the debt.

Mary December 18, 2011 at 2:07 am

Hi Bill it is Mary again. I have another question for you. When I got the loan I did have homestead protection. But in 2009 I refinanced my home so homestead was removed. In 2011 I reapplied for homestead protection again . Could I be protected still from any creditor. Even if the Homestead was on and off . Thank you!

Nancy December 18, 2011 at 6:20 pm

Am I protected by Homestead, if I sign a document after-the-fact, allowing a bank to hold the equity in our principle residence as collateral for a business loan taken by my spouse and his partners.

Bill Gassett December 18, 2011 at 7:08 pm

Mary by what you described it does not sound like you have Homestead protection as the creditor put on the attachment while you had no protection.

Bill Gassett December 18, 2011 at 7:09 pm

Hi Nancy – I don’t see why you wouldn’t be but I would consult with an attorney to be certain.

tom miranda February 2, 2012 at 6:06 pm

If a married couple has a homestead in the husband’s name and he then dies, is the wife still protected by the homestead, or does she need to file a new homestead?

Bill Gassett February 2, 2012 at 11:14 pm

Tom the wife would be protected under the homestead law.

Bob Dugan April 27, 2012 at 11:08 am

I’m in the process of trying to get a loan modification.
If I get it how will that effect my homestead declaration
I live in Massachussetts.
Thanks

Bill Gassett April 27, 2012 at 11:21 am

Hi Bob – Modifying your loan will have no bearing on the homestead protection.

joe June 27, 2012 at 1:48 am

i own a 3 family house in massachusets and a condo i live in with a homestead act. If i am sued at the 3 family property, can they touch my condo at all?

Bill Gassett June 27, 2012 at 11:31 am

Hi Joe – under the homestead act the equity in your condo would be protected from a lawsuit.

Patricia August 9, 2012 at 12:36 am

Bill, My elderly mother-in-law has my sister in law living with her. My sister in law and her daughter, my niece, are very irresponsible. My sister in law lets her daughter drive her car that my mother in law unknowingly cosigned for. My niece has been involved in many accidents in this car. We are deathly afraid that someone will sue my sister in law. My mother in laws house is in my husband’s name because we were afraid she would loose it due to my sister in laws bad credit etc. Is the best way to protect the house by putting it into a homestead act? My sister in laws name is on nothing now, just my husband’s. Thank you for your help.

Bill Gassett August 9, 2012 at 11:33 am

Patricia the homestead protection is one of the cheapest forms of insurance you can ever purchase. I think it makes sense for every home owner to have it!

Jean August 31, 2012 at 4:37 pm

I have recently purchased a restaurant with some down payment and a loan of $100,000 from the seller. I signed the agreement with my personal security. I was wondering if the restaurant doesn’t work out and if I walk away from it, the seller might be able to go after my home. Can Homestead protect me with this? Of if it can, is it too late to take Homestead? From what it says above that The following are exempt from the Homestead Law, the last one says “Debts contracted prior to the acquisition of the homestead.”

Thanks
Jean

Bill Gassett August 31, 2012 at 5:37 pm

Jean if you have a loan for your business already in place against the house the homestead is not going to protect you. If that is not the case the Homestead Protection will guard against someone suing you and collecting the equity in your home up to $500,000.

Nicholas Ortiz August 31, 2012 at 11:50 pm

I just wrote a brief blog post about the recent Massachusetts bankruptcy court homestead decision:
http://www.bkmass.com/blog/index.php/remainder-interest-homestead/

–Nicholas Ortiz

Bill Gassett September 1, 2012 at 12:24 pm

Interesting information Nick on Homestead and ownership interests.

Matt March 26, 2013 at 1:23 am

I had a homestead on a two family that I lived in until 2011. During that time I had a business that I owned go under with substantial personal credit card debt. One of the creditors attached a lien to this property in 2010, and another is threatening to do so now for a debt from 5 years ago. Since I was living in the home at the time the first CC attached the lien, am I protected from that, and secondly since the debt for the 2nd creditor was accumulated in that time as well, do I have any protection. I transferred the Homestead in 2011 to another property.

Thank You,

Matt

Bill Gassett March 26, 2013 at 11:19 am

Hi Matt – In a legal matter such as yours my advice would be to speak to a Real Estate attorney. Most would be familiar with the homestead protection act.

bruce May 11, 2013 at 12:31 pm

I received a writ of execution on judgement of credit card debt. The levy is on my home. I have homestead. Do I have to file a claim of exemption or is it automatic?

Bill Gassett May 11, 2013 at 7:10 pm

Bruce as far as I know with Homestead protection you can not be forced to sell your home for a collection of debt as long as it occurred after protection was issued.

Henry Sullivan June 1, 2013 at 9:02 pm

I filed a Declaration of Homestead back in 2012. I had a credit card go into collection years before I did this, of course they tacked on an absurd amount of interest and now it’s triple what it was when I first opened it. I just got an execution in the mail today saying that they “seized and took all the right, title and interest which the within named judgement debtor(s) XXX (my name) on XXX date. (2 days ago)… in and to the following described real estate and is bounded and described as follows, viz:” then it goes on to describe my property, which they took from public record. This credit card collection company has filed this with the MA land records and now it’s on record. Does this mean that they now “own” my home or does the Homestead Act protect me from this type of execution even though it was filed after the credit card went into collection?

Bill Gassett June 1, 2013 at 9:08 pm

Henry – the homestead protection act is not going to protect you if the debt took place before you filed for protection.

June June 19, 2014 at 6:42 pm

Hello Bill-

My name is June. I am inquiring about the Homestead Protection act.

Both of my parents are now deceased and they have a home in their name, myself and my siblings want to protect our home.
There is a lien on the property, will the Homestead be a good way to start to protect the home?

Thank you-
June

Bill Gassett June 19, 2014 at 6:43 pm

Hi June – I think having a homestead is always a good idea. One thing to be clear though is it does not protect against a lien that is already on the property.

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