Why is it Improtant to Understand Real Estate Liens?

real estate leins

A legal claim against an asset which is used to secure a loan and which must be paid when the property is sold. Liens can be structured in many different ways. In some cases, the creditor will have legal claim against an asset, but not actually hold it in possession, while in other cases the creditor will actually hold on to the asset until the debt is paid off. The former is a more common arrangement when the asset is productive, since the creditor would prefer that the asset be used to produce a stream of income to pay off debt rather than just held in possession and not used.

Types of Real Estate Liens: There are two main types of real estate liens: voluntary liens and involuntary liens.

Voluntary liens are created by a contract between the creditor and the debtor. The most common type is a mortgage, which is essentially a bank loan that is secured by the property itself. Banks give homebuyers sums of money in exchange for a promise to pay back that sum, with additional interest and costs, over a certain period of time.

The bank, of course, retains ultimate legal ownership of the property until the loan is paid off. Voluntary liens like mortgages are easily found and quantified; after all, you are most likely the person who agreed to its terms. At some point, you as the homeowner agreed to the terms of the mortgage and you (theoretically) have a plan for when you will pay it off and gain ownership of the property outright.

Involuntary liens tend to be peskier, because they weren't created by the homeowner. Many of them are either tax liens or construction liens.

Tax liens are imposed by the federal, state, or local government based upon back property taxes that are due and owing against a particular parcel. Not only can these seriously impact your credit report, but until they're paid off, they hamper your ability to sell the property.

Construction liens are usually the result of unpaid renovations conducted on your property. As an example, imagine that you hire a contractor to re-landscape your backyard. You give the general contractor a sum of money to complete the job, which might include planting, installing a pool, and constructing a fence. The general contractor might, in turn, use some of that money to hire subcontractors to complete specific tasks (e.g., excavating the pool) or supply specific materials (e.g., stone walkway).

What happens if your general contractor fails to pay one of these subcontractors or suppliers? These subcontractors and suppliers are not in contract with you as the owner, meaning that they cannot sue you for breach of contract. However, they can file a lien on your property in the office of the county clerk. Typically, this would cause a dispute between you and your general contractor, and you would try to force the contractor to pay off the lien. But meanwhile, this lien (sometimes called a “mechanic’s lien”) represents a cloud on your title.

Other, less common involuntary liens include judgment liens, which are imposed to secure payment of a court judgment, and child support liens, which can be imposed based on unpaid child support. Both require court approval before they can be imposed on the homeowner.

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