Thursday, January 19, 2012

Deeds and Homestead releases

We're starting to see some documents come across the recording counter containing the caption "Affidavit Related to Homestead Pursuant to MGL c. 188, s.13" which states:

Section 13. A deed, release or mortgage containing a statement of the marital status of a grantor may be relied upon by a good faith purchaser for value. As to acts undertaken in good faith reliance on such deed, release or mortgage, an affidavit executed and acknowledged by the grantor, releaser or mortgagor under penalty of perjury stating that, at the time of delivery of the deed, release or mortgage, the affiant had no spouse then entitled to claim the benefit of an existing estate of homestead, shall be conclusive proof of the nonexistence of such benefit at that time. The affidavit may be recorded in connection with the execution and delivery of a deed, release or mortgage and shall be accepted in the appropriate registry of deeds and registry district of the land court. The subsequent residency or renewal of residency in the home by a spouse of the grantor, releaser or mortgagor shall not defeat the priority of a mortgage, release or conveyance accepted in reliance on such affidavit.
As I understand it, simply by living in the home, a non-titled spouse, possesses a homestead estate in the property that cannot be defeated by the title-holding spouse.  Let me illustrate: Husband holds title in his own name with wife using the property as her personal residence.  Simply by reason of (1) her status as spouse and (2) her occupancy of the home, she automatically has an estate of homestead in the property under the automatic homestead provisions of the 2011 law.  This means that should the husband convey the property to a third party, that conveyance does not defeat the wife's homestead rights.  In fact, her right to occupy and use the home would be superior to that of the new owner.

To protect against this, deeds to property owned by just one spouse should also be signed by the non-titled spouse in order to release those homestead rights.  But how does anyone know whether a sole owner of property has a non-titled spouse?  That's the purpose of this affidavit.  Here's an example of one that involved not a spouse-seller, but an executor of an estate/seller:

I, Mary Jones, execturix of the estate of Jane Doe, do under oath depose and say that at the time of the Decedent's death, she had no spouse entitled to claim the benefit of the existing estate of homestead in and to the property located at 360 Gorham Street, Lowell.  Executed under the penalties of perjury this 7th day of January 2012.
The above cited-statute certainly allows for this kind of affidavit and makes it legally effective.  One problem, however, is the added cost for the $75 recording fee.  It's too bad that the revised homestead law, intended to help consumers, now imposes on some an additional charge of $75 to sell their homes.  It would be better if the legislature, the legal community, and the registers of deeds all agreed to have this additional affidavit embedded in the deed itself and to not charge an additional fee for it.  That would deal with the title issue while not imposing an additional cost on home sellers.

1 comment:

Anonymous said...

What is the course of action for release of homestead with respect to the sale of a home in which the sole owner (seller) of a home has a spouse who is not entititled to claim the benefit of the estate of homestead (as the non-title holding spouse is the sole owner of a different property to which [s]he principally resides and to which is already entitled to claim the benefit of an existing state of homestead)?