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Title 27 — Chapter 3: Estates of Homestead

Subchapter I. General Provisions

§ 101. Definition; exemption from attachment and execution

The homestead of a natural person consisting of a dwelling house, outbuildings and the land used in connection therewith, not exceeding $75,000.00 in value, and owned and used or kept by such person as a homestead together with the rents, issues, profits and products thereof, shall be exempt from attachment and execution except as hereinafter provided. (Amended 1967, No. 287 (Adj. Sess.), § 1; 1979, No. 67, § 7; 1995, No. 186 (Adj. Sess.), § 24a, eff. Jan. 1, 1997.) 

§ 102. Designating homestead in case of levy

When an execution is levied upon real estate of the person of which a homestead is a part or upon that part of a homestead in excess of the limitation of $75,000.00 in value, that person may designate and choose the part thereof, not exceeding the limited value, to which the exemption created in section 101 of this title shall apply. Upon designation and choice or refusal to designate or choose, the officer levying the execution, if the parties fail to agree upon appraisers, shall appoint three disinterested freeholders of the vicinity who shall be sworn by him or her and who shall fix the location and boundaries of the homestead to the amount of $75,000.00 in value. The officer shall then proceed with the sale of the residue of the real estate on the execution as in other cases, and the doings in respect to the homestead shall be stated in the return upon the execution. (Amended 1967, No. 287 (Adj. Sess.), § 2; 1995, No. 186 (Adj. Sess.), § 24b, eff. Jan. 1, 1997.) 

§ 103. -When real estate mortgaged

At the time of such levy of execution, if such homestead or real estate is encumbered by mortgage, the value and location of the homestead shall be fixed as provided in section 102 of this title and thereupon the sale shall proceed in the same manner as when a right to redeem mortgaged lands is taken. Only such portion of the mortgage as is in excess of the value of such real estate, aside from such homestead, shall rest on such homestead. 

§ 104. Products of homestead

When the personal property of such person is attached or taken on execution against him or her and the debtor therein claims that the same or a part thereof is the product of such homestead, appraisers shall be appointed and sworn as provided in section 102 of this title. They shall make division of such property, decide upon such claim and set out the products of such homestead to the debtor accordingly, and the doings thereon shall be stated by the officer in his return. 

§ 105. Surviving spouse's interest in homestead

If a person dies leaving a surviving spouse, his or her homestead to the value aforesaid shall pass to and vest in the surviving spouse without being subject to the payment of debts of the deceased, unless legally charged thereon in his or her lifetime; and the surviving spouse shall take the same estate therein of which her husband or his wife dies seized. The probate court in which the decedent's estate is pending shall set out such homestead to the surviving spouse. (Amended 1985, No. 144 (Adj. Sess.), § 1.) 

§ 106. -Forfeiture and sale

(a) When there are minor children living, an executor or administrator may make application to the probate court to sell such homestead, such application stating the facts on which it is based, where:

(1) The widow or surviving husband was not living with the deceased husband or wife at the time of the death of the other and had not resided at the homestead for two years immediately prior to such death through the fault of such widow or surviving husband, or

(2) Such widow or surviving husband has left the homestead and her or his residence cannot be ascertained after diligent inquiry by the executor or administrator of the deceased spouse.

(b) After personal notice where possible or after order of publication thereon complied with, the probate court may grant a license to the executor or administrator to sell the homestead if upon hearing it finds that such widow or surviving husband resided away from the homestead through his or her own fault or with the intention to abandon the minor children of the deceased. If the probate court shall embody in such license a clause to such effect, such widow or surviving husband shall lose all right in and to such homestead. The net proceeds of such sale shall be assigned by the probate court to such minor children for their use and benefit. 

§ 107. Liability of homestead for debts

Such homestead shall be subject to attachment and levy of execution upon causes of action existing at the time of acquiring the homestead, except as otherwise provided in this chapter. For that purpose, such time shall be the date of the filing of the deed of such homestead in the proper office for the record of deeds.

§ 108. Liability of homestead for taxes

Like other real estate, a homestead shall be liable for the payment of taxes assessed thereon.

§ 109. Acquisition of new homestead

When a person acquires a new homestead, the prior homestead shall be liable for his or her debts and may be conveyed by him or her like other real estate. Such new homestead shall not be liable for causes of action against him or her to which such prior homestead would not have been liable, if such new homestead is acquired with the consideration derived from the sale or other disposition of such prior homestead, or with other means not derived from the property of such person. 

Subchapter II. Conveyance of Homestead

§ 141. Execution and acknowledgment of conveyance

(a) A homestead or an interest therein shall not be conveyed by the owner thereof, if married, except by way of mortgage for the purchase money thereof given at the time of such purchase, unless the wife or husband joins in the execution and acknowledgment of such conveyance. A conveyance thereof, or of an interest therein, not so made and acknowledged, shall be inoperative so far only as relates to the homestead provided for in this chapter.

(b) When a mortgagee takes an accruing mortgage, the only debt which shall be secured thereby or become a lien upon the property described therein shall be the debt described in the mortgage and existing at the time of its execution, and any subsequent direct indebtedness of the mortgagor to such mortgagee; provided, that when the mortgage includes a homestead, the written consent of the wife or husband of the mortgagor to the creation of such subsequent direct indebtedness shall be required.

(c) If a mortgaged property includes a homestead, any amendment to the mortgage which increases the amount of the indebtedness secured thereby or extends the date of maturity thereof, shall be executed and acknowledged by both spouses. The failure to obtain the written spousal consent shall not affect the validity or priority of such amendment, but the lien created thereby shall be inoperative so far only as relates to the rights of homestead of such spouse in the mortgaged premises under chapter 3 of this title, provided the amendment is challenged by such spouse before his or her homestead interest is otherwise extinguished. (1999, No. 153 (Adj. Sess.), § 31, eff. May 24, 2000.) 

§ 142. -Homesteader under guardianship

When the guardian of a married person is licensed to sell the real estate of his ward, the wife or husband of the ward may join with the guardian in the conveyance and release her or his right of homestead in the granted premises, as she or he might have done by a conveyance thereof made jointly with the husband or wife if he or she had not been under disability. 

§ 143. -Spouse insane

(a) When the wife or husband of an owner of a homestead is insane and the owner desires to convey it or an interest therein, he or she may petition the probate court in the district in which the homestead is situated for a license to convey the same. Upon not less than ten days' notice of such petition to the kindred of such insane wife or husband residing in the state, and to the selectmen of the town in which such homestead is situated, which notice may be personal or by publication, such court may hear and determine such petition and may license the owner or convey such homestead, or an interest therein, by his or her sole deed. Such license shall be recorded in the office where a deed of such homestead is required to be recorded and such sole deed shall have the same effect as if such wife or husband has been sane and had joined therein.

(b) On granting such license, the court may make such special order as to the investment or disposition of the funds as the nature of the case requires.

(c) On the hearing of such petition for license, any of such kindred or the selectmen may appear and be heard in the premises and may appeal as provided for other appeals from decrees of the probate court. 

§ 144. Effect when spouse joins in conveyance

The joining by a wife or husband in such conveyance shall have no effect upon her or his right to a third in value of the real estate of which the husband or wife died seized. 

§ 145. Effect of spouse joining in mortgage

If the homestead or lands included therein are mortgaged by the joint deed of husband and wife, the joining of the wife or husband in the mortgage shall have no other effect than to bar her or his claim to the homestead as against the mortgage. If the mortgage includes lands other than the homestead, and the owner thereof dies, the other lands shall be first sold by the executor or administrator and applied on the mortgage and the residue only shall rest on the homestead. When the probate court orders the whole to be sold, the balance of the proceeds after the payment of the mortgage, not exceeding $75,000.00 shall be under the control of the probate court as in case of the sale of a homestead under this chapter. (Amended 1967, No. 287 (Adj. Sess.), § 3; 1995, No. 186 (Adj. Sess.), § 24c, eff. Jan. 1, 1997.)

Subchapter III. Severance and Sale of Homestead

§ 181. Appraisal and severance of homestead

When, in a case not otherwise provided for in this chapter, it is necessary in a proceeding to sever or set out a homestead from other real estate, the court in which such proceedings are pending may appoint three commissioners to appraise and set out such homestead who, after being sworn, shall appraise and set out such homestead as provided for setting out homesteads in case of the levy of execution, and make report of their doings to such court. Such report shall be confirmed by the court unless cause is shown to the contrary, and a record thereof shall be made in the office where a deed of such homestead is required to be recorded, which shall operate as a severance of the homestead from the other real estate. 

§ 182. Application to superior court for relief

When a dwelling house, outbuildings and lands in which a homestead right exists, exceed in value $75,000.00, and a severance of the homestead would greatly depreciate the value of the residue of the premises or be of great inconvenience to the parties interested either in the residue or in the homestead, either party may apply for relief to the superior court by a complaint setting forth the facts. (Amended 1967, No. 287 (Adj. Sess.), § 4; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1995, No. 186 (Adj. Sess.), § 24d, eff. Jan. 1, 1997.)

§ 183. Transfer or sale in lieu of severance

When it appears upon hearing that such homestead cannot be occupied in severalty without great inconvenience to the parties interested therein or in such residue, the court may order such homestead to be transferred to such other parties and the payment of $75,000.00 to the owner thereof, or, at the option of the owner, such court may order the parties to transfer such residue to him or her and order him or her thereupon to pay such other parties the value thereof to be fixed by the court. If the case requires, the court may order a sale of the whole premises and apportion the proceeds between the parties and the court may make such orders in the premises as are equitable. If such homestead is sold, the court may control the investment of the proceeds of the sale in a new homestead or make such disposition thereof as equity requires. (Amended 1967, No. 287 (Adj. Sess.), § 5; 1995, No. 186 (Adj. Sess.), § 24e, eff. Jan. 1, 1997.)

§ 184. Beneficial sale without severance

When it appears to the probate court that it would be beneficial to the widow or surviving husband of a deceased person, interested in the homestead, or when it appears that the severance of such homestead would greatly depreciate the value of the residue of the premises or would be of great inconvenience to the parties interested in such residue or in such homestead, on application of such widow or surviving husband or parties interested, the probate court may order the same to be sold as in case of the sale of real estate for the payment of debts. 

§ 185. Control of proceeds of sale

When a homestead is sold by the guardian of the husband or wife and the wife or husband joins in such conveyance, releasing her or his right of homestead or when it is sold under provisions of section 184 of this title, the probate court may control the investment of the proceeds of such sale in a new homestead or may direct the payment thereof to a trustee appointed by such court or to the wife or husband, as the case may be, under such regulations and restrictions as in the judgment of the court will be for the best interest of all concerned.