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Blog Post:
New Homestead
Law – Part 2

By Elliott Topkins, Esquire
4/7/11
Last week, in Part I, I described some of the features of the new Homestead Act which took effect on March 16. This week, I want to describe answers to questions which were frequently addressed regarding the old Homestead Law, which achieved more clarity because of the new Homestead Act.

Does the non-title spouse
have to execute a mortgage?
No, only the title spouse needs to execute the mortgage and no additional language needs to be added to the mortgage for the homestead to be subordinated to the mortgage. The requirement by the lender that the homestead be released is now prohibited.


How do you handle a change in marital status when a document is executed?
The new Homestead Act requires the identification of the non-title spouse as part of the declaration. The subsequent divorce, death or remarriage can alter the current information of those protected by the homestead. The change in status can be resolved by including the current information in the deed, release or mortgage. The document containing the statement regarding the marital status of the grantor may be relied upon in good faith. An affidavit must be executed by the grantor, releaser or mortgagor under the penalties of perjury, stating that at the time the document was executed that the affiant had no spouse or partner entitled to claim the homestead. The affidavit may be recorded with the deed, release or mortgage containing the recital.


If the single owner marries, do they need a new homestead?
If property is purchased by a single person who later marries the new spouse is automatically protected by the Declaration of Homestead right. As a result of this, every deed should include the marital status of the grantor and, if married, then the non-title spouse must also execute the deed.


What happens to existing homesteads?
All existing homesteads in effect as of March 16 shall continue in full force and effect, and shall be governed by the new Homestead Act notwithstanding the failure of the owner or owners to comply with the new execution requirements.


Special note regarding closings:
The closing attorney at each transaction must provide the mortgagor with a written notice that shall include a summary of the differences between the automatic homestead protection and the protection acquired by making a declaration.

A person desiring to create a homestead
should seek the assistance of a Massachusetts attorney with an understanding of the new Homestead
Act. We at Topkins & Bevans can provide this
service to you. You can contact me at (781) 849-5906 and my cell phone number is (617) 596-3184. Read
my posts on www.activerain.com, where I am
ranked No. 1 in America (by points) of all real
estate attorneys who write on that site. I also
direct your attention to a series on foreclosures in America (written by Brenda Huffman), during the week of March 28 where my views are quoted. www.Axcessnews.com.

(Mr. Topkins is an attorney with Topkins & Bevans, Braintree Executive Park, 150 Grossman Dr., Braintree, MA 02184. His blog can be found at http://realtorsresourceblog.com. His e-mail address is etopkins@topbev.com.)