HOMESTEAD RIGHTS

The right of Homestead Exemption Massachusetts is governed by General Laws Chapter 188. Chapter 174 of the Acts of 2000, effective November 2, 2000, increased the ordinary homestead exemption as well as the elderly exemption to $300,000.00. This increase automatically applies to existing homesteads without the need to file new declarations. An estate of homestead may be acquired by an owner of a home or lessee who has a family and occupies or intends to occupy the home as a principal residence. The homestead right exempts such property from attachment and levy on execution and sale for the payment of debts except in the following cases:

1. Sale for taxes
2. For a debt contracted prior to the acquisition of the homestead;
3. For a debt contracted for the purchase of the home;
4. Upon an execution from the Probate Court for alimony or child support; and
5. Where buildings on land not owned by the owner of a homestead estate are attached, levied upon, or sold for the ground rent of the lot where they stand. 
6. 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.

An estate of homestead may be acquired by a designation that the property will be held as a homestead in the deed of conveyance by which the property is acquired; or after the title has been acquired, by a writing duly signed, sealed and acknowledged and recorded in the Registry of Deeds designating the property as homestead.

Only one person may claim homestead in any given dwelling, however, in case of elderly (62 years of age or older) or disabled people, both husband and wife can declare homestead.

Practical Note to Conveyancers: In Atlantic Savings Bank v. Metropolitan Bank and Trust Company, 9 Mass. App.Ct.286, 1290 400 N.E.2d 1290 (1980), the court held that execution of a mortgage with mortgage covenants subordinates homestead interest to the mortgage lien, but only if both spouses are mortgagors or otherwise joined in the mortgage. Therefore when there is a recorded homestead, both husband and wife must sign a mortgage even though only one of them is in title. Normally, in Massachusetts, a spouse does not need to join in a mortgage on property owned only in the name of the other spouse.