Homestead Pathfinder

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					          MASSSACHUSETTS HOMESTEAD LAW:
                  A PATHFINDER

MASSACHUSETTS STATUTES:

    St. 2004, c.218                     An Act Relative to the Estate of Homestead (amending Chapter 188 to
                                        increase protection to $500,000)
    Chapter 188 sec. 1                  Massachusetts Homestead Act: Right to Acquire; Exemptions;
                                        Definitions
    Chapter 188 sec. 1A                 Elderly or Disabled Persons; Protection from Attachment or Seizure
    Chapter 188 sec. 2                  Designation in Conveyance; Mobile Homes
    Chapter 188 sec. 3-10               General Provisions
    Chapter 235 sec. 34 (c1.14)         Property Exempt from Execution

FORMS:

    Several Registries of Deeds have homestead forms and descriptions of the homestead act available online.
    Links to Registries of Deeds are at http://www.sec.state.ma.us/rod/rodlst/lstidx.htm. Forms are available at
    http://www.lawlib.state.ma.us/formsf-l.html#homestead

SELECTIVE CASE LAW:

    In Re Cunningham, __ BR __ , 2005 Bankr. LEXIS 2419, 2005 WL 3348861 (2005). Where land subject
    to debtor’s homestead exemption was sold, the exemption applied to the sale proceeds.

    In Re Desroches, 314 B.R. 19, (2004). Homestead protection was denied where the mortgage was filed
    after an earlier homestead declaration and mortgage did not specifically reserve the debtor's homestead
    rights.

    In Re Garren, 338 F. 3d 1 (2003). Debtor was not allowed to “stack” two homestead exemptions in order to
    avoid judicial lien on his property.

    In Re Hildebrandt, 313 B.R. 535 (2004). Debtor's failure to reserve homestead exemption in conveyance of
    property from debtor and a tenant in common to the debtor terminated the Homestead.

    In Re Kelly, __ BR __, 2005 Bankr. LEXIS 2365, 2005 WL 3293309 (2005). Debtor may not claim a
    homestead exemption, pursuant to MGL. Ch. 188, sec. 1, in a manufactured mobile home. Although MGL
    Ch. 188, sec. 1A provides for such protection, section 1 does not. “The most persuasive argument that
    subsection 1 does not include a manufactured home, however, is the fact that subsection 1A does provide
    for such a homestead.”

    In Re Whalen-Griffin, 206 B.R. 277 (Bkrtcy. D. Mass., 1997). Court said that federal bankruptcy statute
    preempted Massachusetts homestead exemptions. Effect is to protect homesteads from liens, even where
    debts are incurred prior to homestead recording.

    In Re Weinstein, 217 B.R. 5 (Bkrtcy. D. Mass., 1998). Agrees with Whalen-Griffin and goes on to include
    both unsecured and secured pre-homestead debt under bankruptcy protection.

SECONDARY SOURCES:

    Elias, Stephen et al., How to File for Chapter 7 Bankruptcy, Nolo Press, 2004, Appendix 1. state-by-
    state listing of State and Federal bankruptcy exemptions, including homestead.

    Estate Planning for the Aging or Incapacitated Client in Massachusetts. MCLE, loose-leaf, vol. 2,
    Chapter 18 (Includes forms).

    Massachusetts Practice, vol. 5 (Methods of Practice) West Group, 2000 with supplement, sec. 5:4-5:7
    (Includes forms); vol. 28 (Real Estate Law), West Group, 1995 with supplement, sec. 6.8-6.16 and forms at
    secs. 127-128.
                                                                                       Homestead Pathfinder, Page 2



         Massachusetts Lawyers Diary and Manual, Lawyers Diary, 2004, p. 33-88, 190. Contains a complete list
         of all registry offices and districts. Filing fees are also listed.

ARTICLES:
         Scally, Jason M. "Debtors Home Unprotected Despite Homestead Declaration" 33 Massachusetts Lawyers
         Weekly 109 (September 13, 2004).

         "Homestead Exemption - Debts Contracted Before And After Declaration" 25 Massachusetts Lawyers
         Weekly 2671 (August 18, 1997).

         Oney, Walter, “Homestead in Massachusetts: Termination with Extreme Prejudice,” 33 Massachusetts
         Lawyers Weekly 907 (December 20, 2004)

         “Homestead Law Creating Uncertainty For Lawyers: File Declarations Again, Say Experts” 32
         Massachusetts Lawyers Weekly 47 (Sept. 8, 2003)

         “The Massachusetts Homestead Act: Throw out the Bathwater,” 44 Boston Bar Journal 12 (May/June
         2000).

         "Revisiting the Old Homestead: Update 2000," 29 Massachusetts Lawyers Weekly 307 (October 9, 2000).




INTERNET RESOURCES / ORGANIZATIONS:

See: Massachusetts Law About Homestead, http://www.lawlib.state.ma.us/homes.html



Compiled by the staff of the Massachusetts Trial Court Law Libraries. Rev. 01/05/06. A more current version may be
available at our web site http://www.lawlib.state.ma.us.

 Warning: This is only a guide to provide a starting point for research. It is not intended to be an exhaustive
compilation on the topic.

				
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