Browse Proptionary encyclopedia

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Involuntary Lien

DEFINITION

Liens placed on real property without the agreement of the property owner. This typically includes creditors, judgments, mechanics’ liens, and others.

EXPLANATION

A lien that is imposed by a creditor without a direct agreement between the debtor and creditor. Involuntary liens are used so that a creditor can recoup the money lent to the borrower or, in the case of real estate, the party that owns the property. If the property owner does not pay the debt, the creditor’s debt will have to be cleared off the title before the property is sold. If this process is not followed, there is a significant risk associated with making the property marketable.

Although agreements between the debtor and creditor may not exist, current laws allow involuntary liens to be made to collect unpaid debts. Different tax obligations that may result in a lien are: property taxes, state income taxes, and federal income and estate taxes.

When a borrower consensually agrees to pay back a debt — for example, in the case of a mortgage — it is called a voluntary lien. The borrower acknowledges the debt by allowing a lender to place a lien on the property as security indicating their interest in the property.Conversely, a lien placed on real property without the borrower’s permission is called an involuntary lien. A borrower’s failure to make payments on a debt allows a lender to claim a lawsuit against the borrower; if the lender wins, he/she has the ability to place a lien on the borrower’s property.

An involuntary lien is typically made at the direction of the courts. It is one of the primary methods lenders and others use to secure payment from the borrower. It is usually ordered due to a borrower’s failure to make payments. If an involuntary lien is placed on the borrower’s real property and they fail to make payments or arrange a payment schedule with the lender, the lender may have the right to foreclose on the property.

Tax Liens and Their Involuntary Nature

A tax lien is an involuntary lien resulting from the property owner being substantially behind on real property taxes. Put more simply, a tax lien refers to unpaid property taxes.

In the United States, tax liens hold seniority over all other liens, regardless of the loan amount or the date another loan was initiated. In the event that a defaulting borrower’s property forecloses, a tax lien will always be satisfied first.

Tax liens must be paid off in order for someone to live on the property. Therefore, a potential buyer of a foreclosed property must pay the unpaid property taxes before he or she may take ownership of the property.

Mechanic’s Liens and Their Involuntary Nature

A mechanic’s lien — or construction lien — is an involuntary lien filed against a property by a contractor who has performed services on behalf of a property owner, but is subsequently not paid for those services.

Any licensed contractor who supplies labor and/or materials may file a mechanic’s lien if a property owner defaults on his or her payment obligations. Such liens serve to protect a contractor’s financial interests. However, a property owner must have equity in the property in order for a mechanic’s lien to have an effect.

Judgment Liens and Involuntary Liens

A judgment lien is a court-ordered, involuntary lien that grants a lender the ability to take possession of a borrower’s property if the borrower fails to meet his or her financial obligations to the lender. Because unsecured debt is difficult to collect after a borrower stops making payments, a judgment lien is the best way for lenders to recoup their losses.

A judgment lien prevents a property owner from refinancing or selling his or her property until a debt has been repaid. If a debtor does not satisfy his or her debt, his or her property may be seized and/or sold.

A lender may only place a judgment lien on a borrower’s property if the lender files a lawsuit against the borrower and wins.

Writ of Attachment and Involuntary Liens

A writ of attachment — also known simply as an “attachment” — is a specific, involuntary lien that grants the courts the right to seize (or “attach” to) a property in order to satisfy a judgment against a borrower. A writ of attachment is the next step after a lien has not delivered a satisfying result for the party that is owed money.

To do so, a lender must file a lawsuit against a borrower. Lenders must supply the court with documentation of the amount of debt owed by the borrower, as well as demonstrate the vital facts detailing why an attachment lien is necessary to protect its financial interests.

H.O.A. and Involuntary Liens

A homeowners’ association (HOA) can place an involuntary lien on a property owner’s property for being delinquent on 12 or more months of HOA fees. The minimum unpaid balance must be at least $1,800 in order to place a lien on the property, or to foreclose.

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