Massachusetts Real Estate Homestead, © 2014 Anthony N. Tomasiello, Jr., Esq.

 
Massachusetts Real Estate Homestead, © 2014 Anthony N. Tomasiello, Jr., Esq. 
 
Massachusetts Real Estate Homestead
© 2014 – http://www.tomasiellolaw.biz/
Anthony N. Tomasiello, Jr., Esq.
This document is for educational purposes only and does not constitute legal advice.

The following document outlines some of the features of an estate of homestead. In
Massachusetts, an estate of homestead can provide a homeowner (or homeowners) of a
principal residence, protection from certain creditors who might otherwise be able to levy
against (force a sale of) that residence, thereby causing the homeowners to lose their home.
Depending on your situation, rather than file the paperwork yourself, you should speak
with a Massachusetts attorney to get more information. But, if you are inclined to do it
yourself, please see this link: https://www.sec.state.ma.us/rod/rodhom/homidx.htm
Likewise, if you’d like to speak with a qualified Massachusetts attorney who specializes in
Real Estate; the author of this document, Attorney Tomasiello, invites you to call him at
(508) 363-3001 for a no-cost telephone consultation.

I. Origin of the estate of homestead
The original Massachusetts homestead law, which was passed by the Legislature in1851,
exempted “certain real estate, being the homestead of a householder”, from liability to be levied
on by execution for the purpose of selling said real estate to pay a debt of the householder. In
order to gain the protection, it was required to either be included in the deed when the
householder acquired the property or by recording a written declaration at the appropriate
Registry of Deeds if the property was already owned. A male homesteader did not lose his
homestead estate when his wife divorced him, obtained custody of their children, and moved out
of the homestead, or if he left temporarily to obtain work, but an unmarried woman without
children could not claim a homestead. A homestead extended to an entire dwelling, even though
only partially occupied, and included the land contiguous to a dwelling.
An estate of homestead was exempt from attachment, levy on execution and generally from
other laws of conveyance and descent, except in certain specified cases, including a sale for
taxes; for a debt contracted prior to the acquisition of a homestead (but this exception was ruled
not apply in bankruptcy settings unless the debt was secured by a mortgage, since Massachusetts
Massachusetts Real Estate Homestead, © 2014 Anthony N. Tomasiello, Jr., Esq. 
Massachusetts Real Estate Homestead, © 2014 Anthony N. Tomasiello, Jr., Esq. 
 
law was preempted by federal bankruptcy law); for a debt contracted for the purchase of a
home; and upon an execution from the probate court for alimony or child support.
The original homestead exemption was in the amount of $500, increased to $800 in 1855,
$4,000 in 1939, then increased several more times to an amount of $300,000. Also, a separate
type of homestead, the “special homestead for elderly or disabled persons” was created with
additional protections for those vulnerable classes of homeowners. Also, the homestead law was
amended to include a mobile home.
Homesteads have been the subject of frequent litigation, both in Massachusetts (state) courts
and in federal (bankruptcy) courts, between creditors and homeowner/debtors and also between
different creditors seeking priority over each other. In one case, a court decided, based on the
version of the homestead statute in effect at that time, that an estate of homestead did not
terminate at the death of a husband, but would continue in effect for the benefit of the widow
during her life, during her widowhood and for the children, until the youngest child attains the
age of majority (no longer a minor). A bankruptcy court case decided that a homestead
exemption applies to debtor's equity, not the property's total value, and thus would protect the
equity in a mortgaged property up to the limit of homestead protection. That interpretation (of
Mass. Law) in federal bankruptcy cases was not binding on state courts in a non-bankruptcy
setting, however in a later case, the Massachusetts Supreme J udicial Court (the highest court in
Massachusetts) validated the bankruptcy court’s interpretation, since the Mass. Court held
decided that the homestead legislation should be construed liberally in favor of the debtor.
However, some case law was disastrous for debtors- in one case it was decided that a homestead
could be accidentally terminated by a deed from owners to themselves to establish a different
type of co-tenancy between multiple owners; in another case beneficial owners (where the
property was owned by a trustee in trust for the former owners, who lived on the property as
their residence and who deeded the property to a trust) of real estate were denied homestead
protection.
II. The modern estate of homestead
The latest Massachusetts homestead statute (G.L.A. c. 188 created by 2010 Mass. Acts,
c. 395) makes Massachusetts homestead protection automatic. Under prior law, homeowners had
to record a written declaration in the registry of deeds where the property was located to protect
their homes from creditors' claims. Today, even though basic homestead protection is automatic,
homeowners should still record a written declaration of homestead, because the new “Automatic
homestead exemption” is only $125,000, while a “Declared homestead exemption” is $500,000.

The new homestead law also expressly includes within the definition of a “home” a 1to 4-
family dwelling, a “manufactured home”, a residential condominium unit, and a residential
cooperative unit. Also in the new homestead statute; sale proceeds from the sale of a home,
insurance proceeds in case of casualty loss, and eminent domain damages if there is a taking are
Massachusetts Real Estate Homestead, © 2014 Anthony N. Tomasiello, Jr., Esq. 
Massachusetts Real Estate Homestead, © 2014 Anthony N. Tomasiello, Jr., Esq. 
 
all protected for a period of time to give the homeowner(s) an opportunity to purchase another
residence or to rebuild a damaged or destroyed residence. Also, the new statute provides that the
definition of an “Owner” includes a natural person who is a sole owner, a joint tenant, a tenant
by the entirety, a tenant in common, a life estate holder or a holder of a beneficial interest in a
trust.
The new homestead statute provides that an estate of homestead shall be subordinate to a
mortgage encumbering the home executed by all the owners of the home, but a mortgage
executed by fewer than all of the owners of a home that is subject to an estate of homestead shall
be superior only to the homestead estate of the owners who are parties to the mortgage and their
non-titled spouses and minor children, if any. Therefore, the new statute provides greater
protection than the old statute, since before the new law took effect, the execution of a mortgage
by the owners of a home would subordinate the rights of all parties owning rights in an existing
homestead estate to the mortgagee. Also, under the new homestead statute, homeowners are
protected from inadvertently releasing their homestead by executing deeds among family
members or co-owners, since only a deed to a non-family member conveying the home will
terminate a homestead declaration. Finally, the new homestead statute provides that all estates of
homestead in effect on March 16, 2011 (the effective date of the new homestead statute) are
governed by the new statute.
Even if you had previously recorded a declaration of homestead at the appropriate Registry
of Deeds, due to the fact that the estate of homestead may have been inadvertently released as
described above, an attorney should be consulted before relying on the assumption that said
homestead was in effect on March 6, 2011 and therefore that the higher level of protection
afforded by the new homestead statute would apply.


Anthony N. Tomasiello, J r. was born in Worcester and grew up in Shrewsbury, MA, graduating
from Shrewsbury High School. His office is in Worcester MA, and he can be contacted at (508)
363-3001. He has the following credentials and experience:
 Bachelor of Science in Mathematics; WPI, Worcester.
 Additional Master’s Degree credits in Mathematics at Boston University.
 J uris Doctorate degree from Suffolk Law School in 1978.
 Admitted to the bar in the Commonwealth of Massachusetts in 1978
 Admitted to the bar, United States District Court, District of Massachusetts, in 1979.
 Member of the Worcester County Bar Association (Real Estate Section member)
 Member Massachusetts Bar Association.
 Fully familiar with all important aspects of Real Estate transactions