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.

Advertisements

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.

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 happens when the owner of the property is deceased?

There may be some similarities in different states, but the documentation required in a closing involving an estate is determined by state law and you should discuss these situations with an attorney licensed to practice in your state.  The title company insuring the transaction will also have specific requirements regarding how to handle a particular estate issue and those requirements may vary between different title underwriters located in the same state.  The analysis of different situations in this blog is based on Tennessee law.

Definitions of Estate Terms.

These are some terms you may hear when dealing with a closing involving an estate. 

  • Testate: having died with a will.
  • Intestate: having died without a will.
  • Holographic Will: a handwritten will.
  • Nuncupative Will: an oral will
  • Probate: the process of proving a will in court.
  • Executor (Executrix): the personal representative of a testate estate, named in the will and appointed by the court.
  • Administrator (Administratrix): the personal representative of an intestate estate, appointed by the court.
  • Muniment of Title Probate: probate with no administration for the purpose of establishing title to real or personal property.
  • Insolvent Estate: an estate where there is not enough personal property or assets to pay all valid claims against the estate.

The Seller signs a contract to sell real estate and dies before closing.

In this situation, it is likely that an estate will need to be opened in probate court.  After a personal representative is appointed, that person would be able to convey the property to the buyer.  This is different from a typical closing involving an estate because the seller actually signed the contract before she died.  Since she signed the contract, her estate is bound by the terms she agreed to in the contract and the personal representative of her estate is authorized to sign on behalf of the estate.  The typical estate requirements that we will discuss below do not apply.

A husband and wife own property, the husband dies and the wife wants to sell the property.

In order to sell the property, the widow will likely only need to provide a copy of the husband’s death certificate.  If both of them were not on title to the property or if she did not have a survivorship interest, she will need to provide more, as discussed below.  But if they were both on title to the property and had a survivorship interest (which can be determined by reviewing the deed to the husband and wife in accordance with the laws of the state where the property is located), she will only need to prove that he is deceased.

Sam owns a three bedroom house and dies intestate.  He is unmarried and has 2 adult children, who want to sell the house as soon as possible.

Sam’s children would not be able to sell the house within 60 days from the date of his death in Tennessee under any circumstances.  There is a Tennessee statute that gives priority to a deed from the decedent that is recorded within 60 days after death.  If an estate is being administered, creditors of the estate have 4 months to file claims against the estate, so the children would not be able to close until the 4 month claims period has run and the title company has verified that no claims have been filed.  However, in some situations, they may be able to close before the 4 month claims period if there is proof that the sale is an arm’s length transaction for market value, but the net proceeds would likely need to be held in escrow until the 4 month claims period has run.  If Sam was age 55 or older at the time of his death, the 2 children will need to obtain a TennCare Release before they would be able to close.  If Sam’s estate is not being administered, his 2 children may be able to close after 6 months from the date of his death as long as they have a TennCare Release.

Sally owns a condo downtown and dies testate.  She is unmarried and does not have any children.  Her will names her brother, Bob, as Executor and leaves her condo to her church.

Bob has admitted the will to probate and wants to list the property for sale.  He has told you that since he is the Executor that he has the right to sell the property.  If the will contains language that the real property is to be administered as part of the estate subject to the control of the Executor, Bob would be able to sell the property as the Executor of Sally’s Estate.  Also, if Sally’s estate is insolvent, Bob may sell the property to satisfy creditors of the estate.  This will likely require a court order declaring that the estate is insolvent.  If the will does not contain that specific language and the estate is not insolvent, a representative from the church would need to sign in order to convey the property.  However, before that transaction can close, there would need to be a TennCare Release (if Sally is age 55 or older) and the 4 month claims period has run, or it has been 1 year from the date of Sally’s death, whichever is earlier.

Steve owned a 20 acre farm that was only in his name and died intestate 15 years ago.  He had a wife, Sara, and 3 adult children.

Sara wants to sell the 20 acre farm and said that since she is Steve’s widow that she should be able to do that since she hasn’t spoken to her children in 5 years.  Under Tennessee laws of Intestate Succession, the wife and all 3 children would inherit the property and would all need to sign in order to convey the property to a buyer.  A TennCare Release would likely not be necessary since Steve died 15 years ago.  Affidavits of Heirship would probably be required from someone who had enough knowledge of the family to identify Steve’s spouse at the time of his death and all of the children he had during his lifetime.  Once all of those heirs are identified, they would all be able to sell the property.  Not being able to locate any of the children is not sufficient, as their interest must be conveyed in order for the buyer to have clear title to the property.

Consult a local attorney or title company.

These are just a few examples of situations you may encounter and some things that can be done to help close these transactions with as little delay as possible.  Since laws vary greatly from state to state and title underwriters may have different requirements based on their interpretation of state law, you should talk to a local attorney or title company about the specifics of your transaction and always inform your title company if one or more of the property owners is deceased, so they can research and find out what they will need in that particular situation.