Can someone file a lien against me and my property without my knowledge?

Yes. There are different types of liens that may be filed against property that you own and some of them don’t require your signature. Of course, the most obvious lien is a Deed of Trust that is recorded when you take out a loan using your property as collateral. A Deed of Trust would require your signature, but there are scammers out there who will forge signatures and file fraudulent Deeds and Deeds of Trust against property in order to attempt to steal the property from the rightful owner.

The types of liens that do not require your signature include Mechanics and Materialmans Liens (“M&M Liens) judgment liens and tax liens. M&M Liens are liens that any worker who does work on your property can record to help ensure they are paid for the work. They have a one year statute of limitations in Tennessee to file a lawsuit in order to enforce that lien and if they do not file the lawsuit within one year, the lien will lapse and will no longer be effective. However, if you are trying to sell the property or take out a loan against the property within that one year period, it is likely the lien would need to be paid off. Judgments are issued by a judge when someone sues you and wins the lawsuit against you. Those judgments can be recorded in the Register’s Office and will attach to any property you own in that county. Most of the time, if you are sued and served process, you show up in court and are aware that there is a judgment against you. But if you do not show up in court and the plaintiff gets a default judgment against you, you may not remember the judgment and may not realize that it can attach to your property. In Tennessee, judgment liens have a ten year statute of limitations from the date the judgment is entered. Tax liens are when a homeowner doesn’t pay property tax, state tax or federal income tax. Those liens can be recorded without your signature and the property tax liens will attach to the property on which the taxes are delinquent and will eventually lead to a tax sale if not paid. State and Federal Income tax liens can attach to any property that you own, similar to a judgment lien.

How can I find out when someone files a lien or fraudulent deed against my property?

If your property is in Davidson County, the Davidson County Register’s Office has started an alert system that will inform you anytime anyone files a lien or a deed in your name. The Register has said that seniors, immigrants and people with multiple or vacant properties are especially at risk for this type of fraudulent activity. There are situations where a lien, such as a tax lien, is legitimate but the homeowner simple forgot to pay the bill. This system will alert them so they can make sure it is paid before they lose the property. To sign up for the free service, you must go to the Davidson County Register’s website and register your name and an email address to send notifications. The website is http://www.davidsoncorecords.com.

Why do I have to pay off a lien when the debt is not mine?

I have seen several situations where there is a lien that attached to real property, but is not a debt for which the seller is personally liable. In those situations, the seller technically does not owe the debt, but it needs to be paid if they want to sell the house.

The most recent situation I had is with a seller who inherited the house from her father, who died almost five years ago. Prior to his death, there was a judgment lien against the father that was recorded in the Register’s Office. He died about four years after the judgment and the judgment creditor did not file a claim against his estate. Since there was no estate claim filed, the estate did not need to pay the judgment and the fathers heirs were also not responsible for the judgment. However, in Tennessee, there is a ten year statute of limitations on judgments…it has been almost (but not quite) ten years. Since the judgment had already attached to the property, there is no way the judgment creditor could collect on the judgment, unless the house was sold. In this particular case, the seller didn’t want to wait about three months until the statute of limitations had run, so the judgment had to be paid in order to close on the property.

Another situation I have seen is when the property was vested in a husband and wife and they got divorced. After the divorce, the ex-husband filed for bankruptcy and signed a quit claim deed to convey the property to his ex-wife. There was a judgment only against the ex-husband and he listed that judgment in his bankruptcy. Once the bankruptcy was discharged, he was no longer obligated to pay the judgment. However, the judgment creditor had recorded the judgment in the Register’s Office and it attached to the property before the ex-husband conveyed the property to his ex-wife. The ex-wife was trying to sell the property and unfortunately, in order to sell, she had to pay off the judgment that was never her responsibility and that her ex-husband was no longer responsible to pay because of the bankruptcy. Of course, the ex-husband may have been liable to his ex-wife for that judgment because of the divorce decree, but it still needed to be paid off so she could sell the house.

One more situation I have seen is when there is a lien against a prior owner of the property that was not paid off when the current owner purchased the property. If the current owner had a title policy when they purchased the property, that would probably cover this issue, but if they do not have a title policy, a lien that attached to the property would need to be paid in order to sell the property. There may be warranties that the seller gave the prior owner that would make them responsible for the lien, but when that happens, it is at least likely to cause a delay in the closing.

These are just a few situations where someone must pay the debts of others in order to sell their property and it is very sad to see that happen. By the time the seller finds out about the lien attached to their property, they have usually already made plans to buy another property and it is too late to back out of the property they are buying without breaching the contract. We can’t avoid these types of situations altogether, but it is important to work with professionals, who will properly inform clients (whether that is estate attorneys, divorce attorneys or closing attorneys) and help to make sure these situations are minimized.

Cash Closings

Everyone (except a lender) loves a cash closing, whether you are a listing agent, selling agent, seller or even buyer. When a buyer is paying cash, you don’t have to worry about loan approvals, loan delays, providing mountains of paperwork for the lender or a dreaded loan denial. However, a cash buyer will still want to make sure certain things are done before closing

  • Insurance. Since there is no lender to require a buyer to provide proof of insurance, it is up to the buyer to make sure they have coverage as of the closing date.
  • Home Inspection. It is always a good idea to find out any issues a property may have, even if the buyer isn’t going to require the seller to make any repairs.
  • Appraisal. If the buyer is concerned about the value of the property, it is a good idea to get an appraisal and make sure the contract is contingent on the property appraising for at least the purchase price.

The buyer has completed all of the inspections they require and have the money ready to wire to closing, but doesn’t have time to drive across town…Since it is a cash closing and there is nothing that the buyer will sign that will need to be recorded, the title company will probably not need original documents. If that is the case, it may be possible to email documents to the buyer to print and sign, then scan back to the title company. However, there may be a couple of documents that need to be notarized before they are emailed back. That will save time for the buyer and not necessarily require them to take off work for the closing. Of course, there may be instances where the cash buyer will need to sign in person, but in most cases, that will not be required and can be handled electronically with the buyer also sending the funds by wire transfer.

A title company still has the same responsibility to a cash buyer as it would with a buyer who was getting a loan. If the buyer is getting an owner’s title policy, the title company would search the property and clear any liens or other issues it finds in the search, before closing. The title company should also inform the buyer if there will be any unusual exceptions in the title policy. When there is a lender, they would probably not allow any unusual exceptions (like lack of access to a public road), but a cash buyer is depending on the title company to inform him or her of those issues prior to closing. I would typically tell the buyer about any issues myself and if the buyer still wanted to close on the property, have them sign a form acknowledging that I am informing them of the issue in writing.

Know What The Contract Says

It is very important to pay close attention to the details in a contract. Most residential real estate contracts contain form language with some sections that are “fill in the blank”. Those sections are all very important details of the specific transaction. Some obvious items you want to check are:

  • Purchase price
  • Amount of Earnest Money or Trust Money
  • Closing Date
  • Inspection Period
  • Which costs are to be paid by the buyer and which costs are to be paid by the seller
  • Home Warranty

However, you should also pay close attention to what your buyer is contracting to purchase or your seller is contracting to sell. Here are a couple of situations I have seen that could have been resolved easily if it was more clear before the contract was executed:

  1. I recently had a contract where the buyer’s agent prepared the contract with the street address of the property, referenced the map & parcel number for the property and referenced the prior deed, where the seller acquired the property. That seems like a situation where it is pretty clear which property is being sold. However, the seller had recently subdivided the property so he could sell the part of the property with the house on it and build another house on the other part of the property. The two new parcels were also assigned new parcel numbers. All of that was done at about the same time the contract was signed, so there was no way for the buyer’s agent to know that the property had been subdivided. If you were to look at the only the contract, it would appear that the buyer was purchasing 123 Main Street, but it was the seller’s intention to sell Unit A on the 123 Main Street Subdivision. This grew into a dispute that has become costly for both sides, but could have been easily resolved if the seller or seller’s agent had noticed that the entire property (123 Main Street) was listed on the contract instead of just one of the units, before signing the contract. That way, the buyer would have known what the seller intended to sell and could have adjusted the offer price accordingly.
  2. In another similar situation, I once closed on a foreclosure property where the seller was selling 356 Oak Ave, which was the property that had been foreclosed on. The buyer closed on the property and thought they were getting a house and a vacant lot that was surrounded by a fence attached to the house, but after closing, realized that the property at 356 Oak Ave. was separate from the fenced vacant lot at 358 Oak Ave. The original owner of both 356 and 358 had a loan only on 356 Oak Ave. That meant that the lender could only foreclose on 356 Oak Ave, because it had no interest in 358 Oak Ave. The original owner still owned 358 Oak Ave. and didn’t even realize it because he thought it had been foreclosed on during the house foreclosure. A little more research by the buyer or his agent (and clarification in the contract) would have made the buyer aware of what the seller was able to sell, so he could decide if that was what he wanted to purchase.

Authority to sell. Who has the right to sell property?

When individual people own property, this is a very easy question to answer…those individual owners have the right to sell the property and only need to prove that they are the same person as the owner of the property. This is usually done by producing a drivers license or ID. However, when the owner of the property is not an individual, this requires more investigation. Property can be owned by a corporation, LLC, trustee of a trust, partnership, etc. If that is the case, it is not always clear who has authority to sign for that entity in order to convey the property.

Corporation

When property is vested in a corporation, the documentation that will typically be required is a copy of the Articles of Incorporation, a resolution regarding the transaction and appointing an individual to sign on behalf of the corporation, and proof that the corporation is active with the secretary of state. This documentation is required in order to confirm that the transaction is allowed in the corporate documents and to confirm who has authority to sign for the corporation. The corporation must also be active, in most cases, in order to convey property. If the corporation has been dissolved, we would likely need proof as to who the individual shareholders were so they could sign in an individual capacity or the corporation would need to be reinstated with the secretary of state. However, there may be some situations where a representative of the corporation may still be able to sign with proper proof of authority.

Limited Liability Company (LLC)

Proving authority to sign for an LLC is similar to the requirements for a corporation…the seller would need to produce a copy of the Operating Agreement, a resolution regarding the transaction and appointing an individual to sign on behalf of the LLC, and proof that the LLC is active with the secretary of state. Sometimes a “seller” will produce a power of attorney (“POA”) from an individual who is authorized to sign for an LLC or corporation, but an individual POA is not sufficient to transfer authority to someone else to sign on behalf of the entity. A resolution from the board or members would be required.

Trust

Trust property is controlled by the trustee of the trust and trust real estate is usually vested in that person as trustee (ie: John Wolfe, Trustee of the Wolfe Family Revocable Trust). To show that the transaction is allowed by the trust, the seller would need to produce a copy of the trust agreement and the trustee would also need to sign a Certification of Trust at closing. There are some situations where the trustee is no longer able to serve as trustee and the trust agreement may appoint a successor trustee or it may require more than one trustee to sign. The Certification of Trust will confirm the main clauses of the trust and will state that the trust is still an active trust.

Partnership

If the property is vested in a partnership, the seller would need to produce a copy of the partnership agreement. That agreement will confirm that the transaction is authorized by the partnership and will identify the partners. In a general partnership, any general partner can bind the partnership, but if all of the partners are available, it isn’t a bad idea to have all of them sign. I recall one situation where the property was vested in Joe, Sr. and there was a quit claim deed signed by Joe, Jr. under a POA, conveying the property to the Joe, Sr. and Joe, Jr. Partnership. The contract to sell the property was signed by Joe, Jr. as a general partner of the Partnership. In that situation, we required both Joe, Jr. and Joe, Sr. to sign the deed, because Joe, Jr. could have been trying to sell Joe, Sr’s property without his knowledge.

Why should a Buyer get a Title Policy?

There are many title issues that could cause problems for a buyer or may even cause the buyer to lose their home. Even a careful title search would not discover certain hidden risks and the buyer may not know about those problems until years later.

Here are a few issues that occur most frequently:

  1. Forged deeds, mortgages or releases of mortgages.
  2. Deed by a person who is mentally incompetent.
  3. Deed by a minor.
  4. Deed from a corporation given under a falsified resolution or not authorized by the corporate bylaws.
  5. Deed from a partnership that is not authorized by the partnership agreement.
  6. Deed from a trustee that is not allowed by the trust agreement.
  7. Deed challenged as being given under fraud, undue influence or duress.
  8. Deed following a non-judicial foreclosure, where the proper procedure was not followed.
  9. Deed executed under a falsified power of attorney.
  10. Deed executed under an expired power of attorney.
  11. Deed conveying property of a deceased person, not joined by all of the heirs.
  12. Conveyance by an heir or survivor of a joint estate, who murdered the decedent.

Some of these issues could be prevented by a diligent review of documents presented by the seller (for example: making sure a trust agreement allows the trustee to convey real estate), but many could not be discovered until someone comes forward at a later date making a claim to the property. A buyer should always consult with a reputable attorney or title company before purchasing real estate, to discuss the potential risks the buyer may encounter if they choose to not purchase a title policy.

What is a 1031 Exchange?

A 1031 Exchange originates from Section 1031 of the Internal Revenue Code and allows an investor to sell one property and reinvest the proceeds from that sale in a new property, deferring the capital gains taxes on that sale.  IRC Section 1031(a)(1) states: “No gain or loss shall be recognized on the exchange of real property held for productive use in a trade or business or for investment, if such real property is exchanged solely for real property of like-kind which is to be held either for productive use in a trade or business or for investment.”

Rules for a 1031 Exchange.

  1. Like-Kind Property.  In order to qualify for a 1031 Exchange, the property being sold and the property being purchased must be “like-kind.”  This is a very broad term that means that the original and replacement properties must be of the same nature or character.  For example, you cannot exchange an airplane for an office building.  However with real estate, you can exchange almost any type of real estate for almost any other type of real estate:  you could exchange an apartment building for a strip mall, you could exchange a single family rental property for warehouse property.  Foreign property cannot be part of a successful 1031 Exchange…both the original property and the replacement property must be within the US.
  2. Investment or Business Property Only.  A 1031 Exchange only applies to property held for investment or business purposes.  You cannot exchange an apartment building for your next primary residence and cannot exchange your current primary residence for a new primary residence.  A primary residence is not property that is held for investment or business purposes.
  3. Greater or Equal Value.  In order to completely defer paying taxes when you sell your property, the net market value and equity of the replacement property must be the same as, or greater than the property you sold.  If it isn’t, you will not be able to defer all of the tax.  For example, if the property you are selling is worth $1,500,000 and has a mortgage of $500,000, the new property would need to be worth at least $1,500,000 and would need to have a mortgage of at least $500,000.  You can exchange one property for multiple properties, so all of the replacement properties together could have a value of $1,500,000 and mortgages of $500,000.
  4. Cannot receive the Sale Proceeds.  In order to not pay any taxes on the gain from the sale, the proceeds must go to a Qualified Intermediary and the taxpayer cannot receive any of those proceeds.  Of course, it is acceptable to do a partial 1031 Exchange, where tax on some of the gain is deferred but you pay capital gains tax on the remainder.  For example: If you sell property worth $1,000,000 and complete an exchange for replacement property worth $800,000, you would pay the normal capital gains tax on $200,000.
  5. Same Taxpayer.  The taxpayer who owns the old “relinquished” property must be the same as the taxpayer who is purchasing the replacement property.  For example:  If John Smith, LLC owns the relinquished property, John Smith, LLC would also need to purchase the replacement property.  John Smith as an individual would not be able to take title to the replacement property and complete a successful 1031 Exchange.
  6. 45 Day Identification Period.  The taxpayer has 45 calendar days from the closing of the relinquished property to identify potential replacement properties.
  7. 180 Day Purchase Period.  The taxpayer has 180 days from the closing of the relinquished property to close on the replacement property or properties and complete the exchange.

What does tax deferred mean?

When you complete a successful 1031 Exchange, you are deferring the capital gains tax that would be due upon the sale of the relinquished property.  That does not mean the sale is tax free, but you are postponing the tax until you sell the replacement property.  You can defer taxes for as long as you still own the replacement property and can even do another 1031 Exchange when you sell the replacement property and exchange for a new replacement property, further delaying the tax.  If you do not sell the replacement property or if you do another exchange in the future, you could actually defer the tax until you die and the property is left to  your heirs or devisees. 

What is a Qualified Intermediary?

A Qualified Intermediary (QI) facilitates a 1031 Exchange by receiving the proceeds from the sale of the relinquished property and sending those funds to the purchase of the replacement property.  Your title company will need to work with the QI in completing documents and coordinating the transfer of the proceeds.  Anyone who is related to the taxpayer or who has had a financial relationship with the taxpayer within the two years prior to the closing of the exchange cannot serve as the QI unless the services were related to an exchange of property under section 1031.  The QI should be bonded and insured and have relevant experience such as tax, law or finance. 

What are the first steps?

You should talk to an accountant while you are considering a 1031 Exchange and make sure it is the best thing for your situation.  Once you and your accountant have determined that you should do a 1031 Exchange, you should contact a reputable QI.  If you are having trouble locating a QI, your title company may be able to provide you with some referrals as most of the major title underwriters have an affiliation with a QI.