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Understanding Homesteads

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Spring 2006, Volume 5, Number 2

Understanding Homesteads
by Gary F. Casaly, Special Counsel

Homesteads are one of the most mysterious and misunderstood areas of conveyancing, possibly up there with such esoteric things as the Rule Against Perpetuities — or maybe even tax law! It’s interesting that a vehicle that’s designed to protect the homestead of a family is fraught with questions concerning its creation, its preservation and its termination or release. This article will explore the various aspects and issues that surround homesteads and will attempt to make some sense of this whole body of law.

What is a homestead? I think most people would agree that it is something that preserves some interest in property against the onslaught of creditors. But what exactly is it, what does it preserve, and how does it do it? And (the classic question) how is it released? The first thing that needs to be touched upon in helping to understand homesteads is to recognize that a homestead is a possessory estate. That fact needs to be focused on in order to be able to deal with the many attributes of this mysterious interest in real estate. By the term possessory estate I mean that it is not an interest in the fee simple title to land, but rather is a vehicle for protecting the use and occupation of that land for the benefit of the declarant and members of his or her family. Once this aspect of the homestead is fully understood it is then that the other elements of our inquiry — the creation of the estate, the preservation of the estate and the release of the estate — can be addressed.

If I were to say that a life estate permits the life tenant to possess the property, although he or she does not own the fee, the concept would be fully understood by the reader. If I were to say that under G.L.c. 209, §1 the nondebtor spouse may not be expelled from a property he or she owns with the debtor spouse for debts of the latter, that concept would be easily comprehended. But once I say that a homestead is a possessory estate and protects the use and occupation of the property by the homestead declarant and of his or her family, confusion quickly sets in. But in actuality using these analogies are not far off base. When a homestead is created its purpose is to prevent creditors from dispossessing the declarant and his or her family from the property, up to a dollar value of that occupation. In other words, a homestead prohibits creditors from kicking the declarant and the family out of the property, but does not prevent the creditor from proceeding against the property itself. Just like a creditor against property in which a life tenant has an interest, the creditor can acquire and sell an interest in the property, but will nonetheless have to permit the occupant (life tenant or homesteader, as the case may be) to continue to occupy the property. This simple concept will be helpful as we explore homesteads generally. We’ll first discuss how homesteads are created, then what kinds of claims they protect against and what is being protected, and finally how they are released. As we explore things, we’ll occasionally return to this possesory estate concept.

There are two types of homesteads in Massachusetts — both of which can be created only by an appropriate declaration or declarations being recorded with the registry of deeds or the registry district of the land court. These two types are generally called “Section 1” homesteads and “Section 1A” homesteads, the designations corresponding with the respective section numbers of the G.L.c. 188. Section 1 of the statute provides as follows:

An estate of homestead to the extent of $500,000 in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home or one or all who rightfully possess the premise (sic) by lease or otherwise and who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except in the following cases:

(1) sale for taxes;

(2) for a debt contracted prior to the acquisition of said estate of homestead;

(3) for a debt contracted for the purchase of said home;

(4) upon an execution issued from the probate court to enforce its judgment that a spouse pay a certain amount weekly or otherwise for the support of a spouse or minor children;

(5) where buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand;

(6) upon an execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud, mistake, duress, undue influence or lack of capacity.

When it comes to a Section 1 homestead, the statute additionally provides:

For the purposes of this chapter, an owner of a home shall include a sole owner, joint tenant, tenant by the entirety or tenant in common; provided, that only one owner may acquire an estate of homestead in any such home for the benefit of his family; and provided further, that an estate of homestead may be acquired on only one principal residence for the benefit of a family. For the purposes of this chapter, the word “family” shall include either a parent and child or children, a husband and wife and their children, if any, or a sole owner.

Note a few things about this statute:

  1. The statute makes reference to an “estate of homestead.” Here’s where that possessory concept comes in. An estate of homestead is not, but it could be compared to, a life estate. It’s much more complicated than the latter type of interest, but the analogy works, at least to some extent. It’s this estate of homestead — the right to possession and occupation — that is “exempt from the laws of . . . attachment [and] levy on execution.
  2. The “owner or owners” of a home can make the declaration (as well as one or all “who rightfully possess the premise[s] by lease or otherwise”).
  3. The declarant(s) must “occupy or intend to occupy” the property as a “principal residence.”
  4. Only one principal residence can be the subject of a declaration.
  5. The statute defines who an “owner” and a family is, and states that “only one owner may acquire an estate of homestead in any such home for the benefit of his family.”

Right off the bat, it appears that (ii) and (v) are in conflict — the statute permits the “owner or owners” of property to declare a homestead, but then goes on to state that “only one owner may acquire an estate of homestead for the benefit of his family.” In Dwyer v. Cempellin, 424 Mass. 26, 673 N.E.2d 863 (1996) the Supreme Judicial Court, to which a federal court had certified a question, noted that the latter court had characterized this part of the statute as “internally inconsistent.” In point of fact, however, the characterization is not correct. There is no inconsistency. When read closely, it is clear that what the statute means is that only one member of a family can make a Section 1 declaration “for the benefit of his family” in connection with any particular piece. If the owners of a parcel are unrelated then either or both them — the owner or owners of the property — can make a declaration because each one would have different “families.”

In regard to the foregoing the case of In re Cassese, Bkrtcy.D.Mass. 286 B.R. 472 (2002) is instructive. There the federal court held that under Massachusetts law, an owner/cotenant, who was not already protected by being in the same family as the initial homestead declarant, may file a separate homestead declaration on the same property for the benefit of his or her separate family, the court holding that it is only a cotenant who is already covered by an existing homestead exemption filed by a family member (such as a husband or wife), who may not file a separate homestead. Assuming that “friends” (no matter how friendly they are) don’t constitute a “family,” then it would appear under this ruling that two owners who are not from the same family could declare separate declarations regarding the same property. On the other hand, if they do constitute a “family” then it would seem under G.L.c. 188, §2 that the second homestead would trump the first. Section 2 states that the acquisition of a new estate or claim of homestead shall defeat and discharge any such previous estate.” See also, Garran v. Citizens Bank of Massachusetts, Bkrtcy.D.Mass.2002, 280 B.R. 292, affirmed 338 F.3rd 1.

Another important point to note is that only a “principal residence” is qualified to be the subject of a Section 1 declaration and that “only one principal residence can be the subject of a declaration.” (This latter provision seems superfluous because under §2 of the statute it is stated that “[t]he acquisition of a new estate or claim of homestead shall defeat and discharge any such previous estate.”) Property that does not fall into the category of a “principal residence” — a business holding, perhaps a vacation home and likely vacant land — cannot be the subject of a Section 1 declaration.

The statute defines an “owner” to be “a sole owner, joint tenant, tenant by the entirety or tenant in common.” (It is presumed that a declaration by a joint tenant would not sever the joint tenancy.) A “family” is defined as “a parent and child or children, a husband and wife and their children, if any, or a sole owner.” There are obvious questions and issues with this definition, which we don’t have to explore in depth, but I will make these observations: Why does the statute refer to “child or children” (singular and plural) in connection with “a parent,” and yet uses the phrase “and their children” (plural only) in connection with a “husband and wife”? And this latter phrase, no doubt, will be applicable and enforced in connection with same-sex couples. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003).

The statute provides that an estate of homestead “to the extent of $500,000” may be acquired. We’ve noted above that the estate of homestead is a “possessory” estate, so what does this dollar amount mean? It does not mean that the property is exempt from the attachment of liens up to that amount; an attaching creditor or other lienor can get to the title and levy against it. What the dollar amount does mean is that in the event that a creditor proceeds against the fee title of the property a part of the property which has a value of $500,000 will be set off for the occupation of the declarant and his family. The title will not be set off, but only that part of the property, up to that amount in value, for the continued occupation of the homesteader and his or her family.

The above point is a very important one for the conveyancer to understand. When faced with a title on which a homestead has been declared, after which an attachment or other lien appears of record, it is very dangerous to assume that the homestead has somehow prevented the lien from “catching” the title and has insulated it from the lien. Although the possessory nature of the homestead will protect the declarant’s and his family’s continued occupation of the property, the title to the land is nonetheless impressed with the lien.

And for whose occupation will this set off be made? This depends upon whether the declarant is alive or has died. Section 1 of the statute states that the homestead is made by the declarant for the benefit of his family, which is defined generally as the parent(s) and the children. In the case of the children, Section 1 does not mention whether they need to be minors or of age. However, Section 4 provides that [t]he estate of homestead existing at the death of a person holding a homestead shall continue for the benefit of the surviving spouse and minor children and shall be held and enjoyed by them, if one of them . . . occupies the premises, until the youngest unmarried child is eighteen and until the marriage or death of the spouse.” So, once the declarant dies the homestead continues on, but the rules change a bit.

Before we get into the questions of the intentional (or inadvertent) release of a homestead, or efforts that must be observed if the homestead is to be preserved — questions that conyeyancers would be most interested in — let’s take a look at the Section 1A homesteads. Section 1A states:

The real property or manufactured home of persons sixty-two years of age or older, regardless of marital status, or of a disabled person, as herein defined, shall be protected against attachment, seizure or execution of judgment to the extent of $500,000; provided, however, that such person has filed an elderly or disabled person’s declaration of homestead protection as provided in section two; and, provided further, that such person occupies or intends to occupy such real property or manufactured home as his principal residence. A disabled person’s declaration of homestead protection shall be accompanied by either of the documents referred to in the second paragraph of this section.

* * *

Each individual having an ownership interest in the real property or manufactured home which serves as that individual’s principal residence and who qualifies under the provisions of this section shall, upon filing of an elderly or disabled person’s declaration of homestead protection, be eligible for protection of such ownership interest up to a maximum amount of $300,000 per individual, regardless of whether such declaration is filed individually or jointly with another.

The following shall be exempt from the provisions of this section: federal, state and local taxes, assessments, claims and liens; first and second mortgages held by financial institutions or others; any and all debts, encumbrances or contracts existing prior to the filing of the declaration; an execution issued from the probate court to enforce its judgment that a spouse pay a certain amount weekly or otherwise for the support of a spouse or minor children; where buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand.

The elderly or disabled person’s estate or claim of homestead shall be terminated upon the sale or transfer of the real property or manufactured home during the declarant’s lifetime or upon the sale or transfer of the declarant’s interest in the real property or manufactured home during the declarant’s lifetime or upon the death of the surviving declarant. An elderly or disabled person’s estate of homestead created by this section shall be terminated during the lifetime of the declarant by deed conveying the property in which such an estate of homestead exists signed by the declarant; or by a release of the elderly or disabled person’s estate of homestead, duly signed, sealed and acknowledged by the declarant and recorded in the registry of deeds for the county or district in which such real estate is located; or by a release of the elderly or disabled person’s claim of homestead, duly signed, sealed and acknowledged by the declarant and filed in the city or town clerk’s office in the city or town in which the manufactured home is located; or pursuant to section two.

Note that while Section 1 of the statute creates an “estate of homestead,” in Section 1A the statute refers to “ownership interest” and provides that the declaration under this section makes the declarant “eligible for protection of such ownership interest.” It’s wondered whether this section of the statute actually protects the fee interest or is simply an attempt by the legislature to indicate that a Section 1A declaration cannot be made by one who “rightfully possess[es] the premise[s] by lease or otherwise,” as in the case of a Section 1 declaration. It is, nonetheless, still an “estate of homestead” — apparently a possessory estate only — because of the specific reference to the fact that the declaration is filed “as provided in section two.” See Garran v. Citizens Bank of Massachusetts, infra. Note also the misprint in the statute — the reference to $500,000 in the first paragraph, but a reference to $300,000 in the third paragraph. Hopefully, this will be corrected, or the courts, if they are required to interpret the statute, will do so liberally.

The simplest explanation of a Section 1A homestead can be outlined this way:

  1. Each owner of the property — whether in the same family or not, and regardless of marital status — can make a Section 1A homestead, so long as the requirements concerning age or disability are met.
  2. The homestead can be declared only with respect to a principal residence.
  3. In the case of a declaration by a disabled person, certain documentation must be recorded with the homestead.
  4. The homestead does not protect against federal, state and local assessments, taxes and liens, and first and second mortgages.
  5. Joint declarations are specifically permitted.

The last paragraph of the statute, relating to the release of the homestead, is a bit convoluted and seemingly repetitive, but I think this is what it says:

  1. A deed conveying any declarant’s interest in the property, or a release by any declarant will terminate that declarant’s homestead.
  2. A release from a non-declaring spouse is unnecessary.
  3. The death of any declarant (the statute refers to the “surviving declarant”) terminates that declarant’s homestead.
  4. The acquisition of a new homestead will terminate an existing homestead.

There seems to be a fair amount of confusion as to how a homestead is preserved (especially in the case of the refinance of a mortgage) and what is necessary to effectively terminate a homestead. The questions here are primarily with respect to Section 1 homesteads, because Section 1A of the statute specifically addresses mortgages and the release vehicles are more clearly set out in that section. Accordingly, this article hereafter will focus primarily on Section 1 (although Section 1A will creep into the discussion now and again).

The classic question as to the release (or preservation) of a homestead arises in connection with the granting of a mortgage, particularly in the situation of a refinance. Many mortgages contain an express release of homestead rights, and some believe that this language thereby terminates any homestead, requiring a new homestead thereafter to be declared. This argument seems to revolve around the tenet that “a mortgage is a deed” (which is correct), but the argument then takes on a life of its own and, citing G.L.c. 188, §7, attempts to validate the conclusion. Section 7 says this:

An estate of homestead created under section two may be terminated during the lifetime of the owner by . . . a deed conveying the property in which an estate of homestead exists, signed by the owner and the owner’s spouse, if any, which does not specifically reserve said estate of homestead . . .

Well, there it is: a “deed conveying the property” will terminate the homestead. A mortgage is a deed. Therefore, a mortgage will terminate the homestead. (One element that is required, at least in the case of a release of a Section 1 homestead, is that the owner’s spouse, if any, must join in the deed. Since Section 1A is complete within itself as to the question of a spouse’s joinder — none is required — section 7 must be referring only to a Section 1 declaration when it comes to the spouse’s participation. We’ll assume that if there was a spouse, he or she joined in the conveyance.)

So, how can the argument be flawed in view of the foregoing?

For some reason, the authors of the argument seem to have overlooked another section of the statute, namely §6. That section says this:

Property which is subject to a mortgage executed before an estate of homestead was acquired therein, or executed afterward and containing a release thereof, shall be subject to an estate of homestead, except as against the mortgagee and those claiming under him, in the same manner as if there were no such mortgage.

The above statute essentially states that when the release of homestead is contained in a mortgage its effect is limited: the release is only as to the mortgagee, and does not affect the homestead with respect to the rest of the world. True, a mortgage is a deed, but it is a special kind of deed, and the statute makes this distinction. In other words, it’s not what the release says, but rather where it appears that makes the difference. It’s not what you say, but where you say it. (Constitutional lawyers understand this very well: a United States senator who publically slanders someone can be sued; but if the derogatory statement is made on the floor of the Senate the congressman enjoys immunity. Constitution of the United States, Art. 1, §6. It’s not what he or she says, but where he or she says it.)

Speaking of releases, the case of Atlantic Savings Bank v. Metropolitan Bank and Trust Company, 9 Mass.App.Ct. 286, 400 N.E.2d 1290 (1980) is enlightening. In Atlantic Savings Bank the McHardys owned a property on which a homestead had been declared. They granted a mortgage, signed by both, but in which no words of release of the homestead occurred. The question was whether there had been a release (as to the mortgagee) even in the absence of words of release. The court tracked the history of the statute and noted that the mere signature of the spouse, without words of release, was a sufficient “release”:

The argument [by the McHardys] overlooks the features of the mortgage, as well as the provisions of [§7] . . . which defined the term “release” in [§6]. [S]ection [7] expressly provided that the spouse’s signature on a deed was sufficient to release her rights [in a homestead]. * * * The word “deed” as used in §7 includes a mortgage. [Citations omitted].

In our opinion, this expedited method for release changed the preexisting case law (relied upon by the defendants) which held, based on outmoded concepts of coverture, that in order to bar a wife’s right of homestead not only was the wife required to join with her husband in the conveyance by executing the instrument, but also the conveyance, so executed, must have contained apt words expressly releasing her homestead right.

Although basing its decision on slightly different reasoning, the bankruptcy court recently cited and agreed with the decision in Atlantic Savings Bank. See the case of In re Desroches, 314 B.R. 19 (2004).

In Atlantic Savings Bank the court indicated that the mere signature of the spouse (but she also happened to be named in the granting clause) was sufficient to release rights of homestead. Of course, where there’s a homestead, the spouse must participate in the conveyance. That raises an interesting question: how do you know that there’s a spouse to deal with? If there isn’t, how do you establish this fact on the record? It wouldn’t take much to fall into a trap here. What about the situation where John takes title to property in his own name. In fact, we’ll even assume that John’s not married, and the deed into him states this. John declares a homestead. Since a “family” includes a “sole owner” John can make the declaration. The next thing is that John shows up at your office for a closing, and you’re being asked to pass the title. He signs the deed, you record and John gets his money. What if John had married Mary after he took title? Nothing on the record discloses this, but the fact remains in such a case that Mary’s participation in the deed would be critical. And, what if John didn’t marry anyone in the interim? No spouse would have to join in the conveyance, but how would you know this, at least by the record title? The point, of course, is that once the homestead appears of record, John’s deed should contain enough information to establish his marital status. A lesson should be taken from some of the older deeds frequently found in titles, where the grantor states that he is a “single person” or a “married person.” Such recitations always appeared in the older deeds, because the interests of dower or curtesy had to be dealt with, even if no homestead had been declared. Dower or curtesy are relics from the past, and modern statutes have all but eliminated these interests, but the homestead issue, which needs to be dealt with in the same fashion, still remains and raises a title issue — or at least puts the title in doubt — unless proper recitations appear in the instrument of conveyance.

Many decisions that involve homesteads, like that in In re Desroches, 314 B.R. 19 (2004) cited above, are rendered by the bankruptcy courts. The reason, of course, is that the Massachusetts homestead serves as the basis for exemptions claimed in the bankruptcy proceedings. In this regard, the bankruptcy courts are not necessarily deciding what the law is in connection with homesteads (unless there’s a question of federal preemption, as was the case in Patriot Portfolio v. Weinstein, 164 F.3rd 677 (1999)), but rather trying to guess what the Supreme Judicial Court, the highest court of Massachusetts, would declare the law to be, if it were asked. In the decision in In re Desroches the bankruptcy court reviewed this standard:

At the outset the Court is mindful of the In re Miller court’s admonition that a bankruptcy court ruling on an issue of state law must rule as it believes the highest court of the state would rule. When the highest court has not addressed the issue, the Bankruptcy Court should not regard lower court rulings on the issue as dispositive. Rather, it should attempt to predict what the highest court would do and to that end should accord proper regard to decisions of other courts of the state.

So, what kind of “predictions” have the bankruptcy courts been making recently? Some of them will surprise you.

In the case of In re Hildebrandt, Bankruptcy No. 03-444-01 (2005), Brian Hildebrandt and his friend, Ann Renaud, purchased property together as tenants in common. Thereafter Brian declared a homestead. In April, 2003 Brian and Ann joined in a deed to Brian. The deed did not specifically reserve, and in fact made no mention of, the homestead. In July 2003 Brian declared bankruptcy.

Brian claimed a $300,000 exemption for the homestead in the bankruptcy proceedings. The trustee in bankruptcy objected to the exemption, claiming that the April, 2003 deed had terminated the homestead.

The court (originally the bankruptcy court and, in this case the Appellate Panel that affirmed the decision) discussed two issues, namely the provisions of the statute and its application to the deed.

The court said the homestead had been terminated:

The relevant subsection of the statute provides that an estate of homestead may be terminated by “a deed conveying the property in which an estate of homestead exists, signed by the owner and the owner’s spouse, if any, which does not specifically reserve said estate of homestead.” Accordingly, two conditions must be met for an effective termination under the section: (1) the “conveyance” of property in which a homestead exists, and (2) the absence of a reservation of the homestead. It is undisputed that the second condition is met. The remaining question is whether the property was “conveyed” for purposes of the statute.

Under the plain language of the statute, the 2003 deed was a “transfer” of title from the Debtor and Renaud jointly to the Debtor alone. The Debtor, however, asks us to interpret the plain language liberally, arguing that the 2003 deed was not a transfer “to another” since it did not pass title from him, but passed title from the tenancy in common to him as sole owner. * * * The 2003 deed transferred the ownership interest in the property from an undivided fractional interest [citation omitted] to the sole ownership. Accordingly, the entire estate was, in effect, conveyed.

Because the “entire estate” was conveyed, and because there was no reservation of the homestead in the deed the court held that the homestead was terminated.

The “mistake” that the homestead declarant made seems to have been joining in the deed with the co-owner. Had the co-owner simply conveyed her interest directly to the declarant, without his joining in the deed, the homestead, it seems, would have been preserved.

In re Melber, 315 B.R. 181 (Bankr.D.Mass.2004), like the Hildebrandt case, involved a conveyance and the question of whether the homestead survived the transfer. In the Melber case an individual, who had declared a homestead, thereafter conveyed the property to himself and his new wife, as tenants by the entirety. The wife did not join in the deed. In Melber the court said that the homestead was not terminated because, in the case of a homestead held by a person who is married at the time of the deed of conveyance, the statute requires that the spouse must join in the deed in order to terminate the homestead. Citing G.L.c. 188, §7, that provides that an estate of homestead is terminated by “a deed conveying the property in which an estate of homestead exists, signed by the owner and the owner’s spouse, if any, which does not specifically reserve said estate of homestead,” the court stated that the element of the spouse’s signature was lacking, and therefore the homestead survived the conveyance, even though the deed lacked a reservation of the homestead.

The trustee in bankruptcy had argued that §7 should not be read to require that a non-title holding spouse must sign the deed when she is a stranger to the title because to do so would be to create a potential “cloud on title,” a situation that the trustee maintained the legislature could not have intended when it enacted the statute. But the courts said:

[T]his court predicts that the Supreme Judicial Court would require the signature of a spouse, even if the spouse is not a record owner, to effectuate the relinquishment of the estate of homestead.

Because the spouse did not join in the deed, the homestead continued for the benefit of the declarant and his family.

Garran v. Citizens Bank of Massachusetts, Bkrtcy.D.Mass.2002, 280 B.R. 292, affirmed 338 F.3rd 1. In this case David Garran, who owned property with his wife Judith, as tenants by the entirety, declared a homestead as a disabled person under G.L.c. 188, §1A. Thereafter, Judith recorded a homestead under G.L.c. 188, §1. David then filed for bankruptcy.

David claimed two homestead exemptions in the bankruptcy proceedings — one for $300,000 in regard to his disabled person homestead and another for an additional $300,000 in connection with the homestead that Judith had filed. The question before the court was whether David could “stack” the two homesteads, one upon the other, and thereby “double” his exemption. The court analyzed the case in this way:

Subsection 1A [of G.L.c. 188] provides, in part, as follows: “The elderly or disabled person’s estate or claim of homestead shall be terminated [in various ways]; or pursuant to section two.”

Section 2 provides that “the acquisition of a new estate or claim of homestead shall defeat and discharge any such previous estate.” Thus the last paragraph of Section 1A provides that an elderly or disabled person’s estate or claim of homestead may be terminated by . . . the acquisition of a new estate or claim of homestead pursuant to section two.

Section 1 of G.L.c. 188 refers to the homestead exemption as an “estate in homestead.” A declaration under section 1 protects the entire equity in the property remaining after deduction of encumbrances from the fair market value, as opposed to only the debtor’s interest.

A Section 1A homestead protects individuals who are elderly or disabled. Section 1A, however, also refers to the exemption as an “estate or claim of homestead” as well as an “estate of homestead.” * * * [T]he Court concludes that the plain meaning of Sections 1A and 2 is that a subsequent declaration of homestead under Section 1 defeats a prior homestead declaration under Section 1A because, by its own terms, a Section 1A declaration is an estate of homestead.

Essentially, because the Section 1 homestead benefited David as a family member and entitled him to claim the advantages thereunder, the court ruled that his prior homestead estate, created under Section 2, had been terminated or defeated. Some very interesting points flow from this proposition. First, Section 2 states that the acquisition of a new estate of homestead shall terminate “any such previous estate.” (Emphasis added.) It is wondered whether the court missed this point and whether the word “such” should have been interpreted to mean the same kind of homestead. Second, if the Section 1 homestead was declared first, with the Section 2 homestead thereafter being created, what would have been the result? If, as the court states, the Section 2 homestead is for the benefit of individuals and “regardless of marital status,” how could its subsequent declaration adversely impact a previously declared Section 1 homestead, which protects “the entire equity”? Was the court saying that it did not think “stacking” could occur, or that it did not occur under the particular facts of the case?

More on homesteads in future issues . . . .