Tuesday, August 30, 2022

REBA’s Legislation Corrects and Clarifies the Homestead Law

 Lisa J. Delaney

On August 10, 2022, Governor Baker signed legislation, Session Law - Acts of 2022 Chapter 175, §§30A-30G, which included technical corrections and


clarifications in the Massachusetts Homestead Law, G.L. c. 188.   Ever since the enactment of the omnibus legislation that rewrote chapter 188 in 2011, the Bankruptcy and other courts have construed certain language in the statute in ways that were not intended, in fact denying the reasonable expectations of homeowners who believed that they had homestead protection.  Also, title examiners have noted the lack of certainty in certain deeds and other instruments that purport to release homestead rights in property being transferred, and unnecessary confusion has been the result. 

Highlights of the legislation include:

·  Specifies the owner of a remainder interest, in addition to a life-tenant, is entitled to the benefits of a homestead providing they occupy or intend to occupy the home as their principal residence.

·   Clarifies the allocation of the homestead exemption to trust beneficiaries and co-owners residing in the home as their principal residence without reducing the value of their exemption through a misplaced allocation to owner beneficiaries or co-owners who do not reside there.

·   Excludes holders of future and contingent beneficial interests in a trust from the definition of trust beneficiaries entitled to homestead protection.

·     Adds the lessee of a residential cooperative housing unit as a person entitled to the benefits of a homestead, so long as the person occupies or intends to occupy the property as a principal residence.

·      Removes “mistake” as a statutory exemption to the homestead while retaining the statutory exemption for fraud, duress, undue influence and lack of capacity.

·      Provides for the inclusion of certain statements in a deed regarding the marital status of the grantor, or the nonresidential status of the property, that will support the termination of the homestead upon the execution and delivery of the deed and recognizes the validity of an affidavit containing such information.

·       Recognizes that divorce and other court judgements can effectively terminate the possessory rights of one spouse, and that lawful possession is required to claim that the home is a principal residence.   

REBA is grateful for the efforts of Senator Cynthia Creem (D-Newton) and Representative Brian Murray (D-Milford), both of whom seized the opportunity late in the session to attach this legislation to the courts’ IT bond bill.  It had already been approved by the Committee on the Judiciary in a separate bill earlier in the session, but needed concerted advocacy as formal sessions were concluding.  Also supportive were the Judiciary Committee co-chairs, Senator James Eldridge (D-Acton) and Representative Michael Day (D-Stoneham).  Representative Day and Senator Will Brownsberger (D-Belmont) co-chaired the joint conference committee that reported its recommendations to the House and Senate on August 1st.

The legislation was signed by Governor Baker  on August 10th.  It will take effect in 90 days from that date. 

Editor’s Note: Inspiration for the legislation was provided by Legislation Section member Lisa Delaney, who co-authored the 2010 Act with Michael Goldberg and Erica Bigelow.

An At-large member of the REBA Board of Directors and owner of the law firm of Carvin & Delaney LLC, Lisa Delaney’s practice centers on large commercial transactions, where she offers clients complex title services and advice. Her practice also includes negotiating and drafting commercial contracts with a focus on leasing and purchase agreements, as well as title and trust clearance actions.  Lisa can be contacted at ldelaney@carvindelaney.com.

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