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Homestead Act


May 7, 2004

A Homestead is a statutory protection for owners of real property that limits the ability of creditors to reach one’s home. The Homestead protects against attachment, levy, execution or sale by unsecured creditors of an individual’s real property up to three hundred thousand dollars ($300,000.00). The Homestead is available to individuals who own a primary residence in the Commonwealth of Massachusetts.

In order to gain the benefit of the Homestead’s protection, one must file a Declaration of Homestead with the Registry of Deeds in the county where the real estate is located. The Homestead may only be filed upon an individual’s principal residence or domicile and not upon a second home, vacation home or investment property. The fee to record a Declaration of Homestead is thirty-five dollars ($35.00).

Although only one homeowner per household may file a Homestead; the document isdesigned to protect the family. Under the statute, “family” is defined to “include either a parent and a child or children, a husband and wife and their children, if any, or a sole owner.”

The Homestead Act also offers specialconsiderations for the elderly and disabled. Under the Act, any elderly property owner,defined as age sixty-two (62) or older, is entitled to file for Homestead protection, regardless of marital status. Thus, if twoindividuals own a residence and both are age 62 or older, they may each file a Homestead and each, individually, are afforded the full benefit of the $300,000.00 protection.

Similarly, a disabled person is afforded the same protection as elderly individuals detailed above. Under the Act, a disabled person is defined as one who has a permanent physical or mental impairment, which would meet the requirements of supplemental social security. There are special filing requirements associated with a disabled property owner filing a Homestead, including proof of disability.

The Homestead does not serve as a complete bar to the ability of creditors to reach one’s real property. The Homestead’s protection only extends to unsecured creditors of the property owner, not to secured creditors such as mortgage holders, including second mortgagees, and creditors who have placed a lien or other security interest upon the property. Therefore, the Homestead does not protect propertyowners against foreclosure proceedings.

A Homestead may be terminated in several ways, both voluntarily and involuntarily. The Homestead is automatically terminated when the property is sold or transferred, when arelease of Homestead is recorded at theRegistry of Deeds, or when the property is no longer used as a principal residence. The Homestead is also terminated upon the death of the declarant; however, the Act providesfor extended protection under certain circumstances. Upon the death of the declarant, the family, as defined above, is protected until the youngest unmarried child reaches the age of eighteen (18) and until the remarriage or death of the surviving spouse, so long as they continue to live in the residence.



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