Declarations of Homestead

If you are a homeowner in Massachusetts, you are entitled to the protections afforded by a Declaration of Homestead. A Declaration of Homestead is filed at the Registry of Deeds in the county where the property is located, and allows homeowners to protect up to five hundred thousand dollars ($500,000) of the value of their primary residence, per family, against any attachment, levy, execution or sale to satisfy debts arising subsequent to the date of the Homestead filing. Any owner occupying a home as a principal residence may file for the Homestead protection. Presently, only one owner may file a Homestead, though if you are married and own the property with your spouse as tenants by the entirety, both spouses and family members receive the benefit of the Homestead protection.

Certain claims are exempt from the Homestead Law. Matters against which a Homestead will not protect include (a) federal, state and local taxes and other liens; (b) mortgages used to purchase the home; (c) orders for payment of spousal or child support; (d) judgments based upon fraud, mistake, duress, undue influence or lack of capacity; and (e) debts contracted prior to the acquisition of the Homestead.

Under the current Homestead law, there are certain questions whose answers are not clear. May a person who owns a home in Trust file a homestead? If a homeowner refinances a first mortgage, is the Homestead terminated? Why is the Homestead available to only one homeowner?

A bill is currently pending in the Massachusetts legislature which would provide the answers to these questions. If the pending bill is passed, it will automatically protect up to $125,000 of equity protection to all homeowners, whether or not a Declaration of Homestead is filed. A filing will continue to protect up to $500,000 in home equity. The Bill will also allow both spouses to file, even if only one spouse is on the title to the house. The Bill would specifically permit filings on homes owned in Trust and protect beneficiaries of trusts which hold title to their principal residence. Finally, the Bill would prohibit mortgage lenders from requiring the release of a homestead in order to secure a refinancing mortgage and will verify that any language in a mortgage purporting to terminate a Homestead will be construed not as a termination of Homestead rights, but as a subordination of those rights to the lender. Stay tuned for the outcome of the vote on this bill.

A Declaration of Homestead is an easy way to protect the equity in your home, but it must be filed for you to have the protections. If you are unsure whether you have a Declaration of Homestead on file, it is simple both to verify and to file as needed.