Releasing Lien On Home For Sale
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM #LAW 673
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A reader is trying to sell their
home but is having difficulty settling a lien held against the property. Ilyce
and Sam discuss the options a homeowner has in trying to release a property
from a lien, inlcuding paying off the lien, posting a security bond and hiring
a real estate attorney.
Q: I was selling a property in a different state. When I listed the house went
up for sale, someone filed a lien against the property for attorney’s
fees. I knew that I owed this amount and agreed to pay it.
(article continues below useful links)
When I asked for a payoff from the lien holder, the attorney sent me a payoff
amount for ten times the amount of the lien. My sale fell through because I
could not get the lien released.
Is there something that I can do to protect my property and sell it? I tried
to reason with the lien holder with no progress. Someone told me that I can
file a bond on the property to get the lien released and sell it. Is that true?
A: Under certain circumstances, creditors have the right to file a lien against
a person’s home for money that person owes them. Most frequently, contractors
and subcontractors file liens against homes when the homeowner fails to that
contractor or subcontractor for repairs or improvements.
In some other cases, when a homeowner loses a court case, the winner can place
a lien on the losing party’s home. There are other instances that allow
some other people to place liens on a home and when the lien is in place, the
homeowner has to pay the lien holder what is owed to have the lien removed.
If the lien holder does nothing and the homeowner doesn’t pay, the lien
becomes invalid after several years.
In your circumstances, you have two courses of action. One is to sue the lien
holder to force him to give you the proper release upon payment of the amount
owed on the lien. However, you should be aware that if you do owe the larger
amount, the lien holder can eventually get a lien on the property for the full
amount if he prevails in a suit against you for the amount owed.
The second course or action is to work with the title company or closing agent
that would handle the sale of your property. Frequently, title insurance companies
will request that the owner post a bond or other security, including cash, to
insure that there are funds available to pay off the lien holder should the
lien holder attempt to foreclose on the lien – that is sue to get his
money and try to sell the home to satisfy the debt.
If you are working with a real estate attorney in the sale of your home, you
should discuss your options with him or her. If you are not working with an
attorney, you might want to hire one. Your attorney should be able to work with
the title company to find a way sell the property and give the buyer comfort
that they won’t be left footing the bill if the lien holder comes after
them. Good luck.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com