Purchasing homes and other assets are now easier through loans; however, you should take caution of the legal right of the lender to repossess the property, which accrues by registration of liens on the property purchased. If this is your first time hearing the term ‘lien’ or your home, car or other assets have liens, then it is time for your doubts to end. This blog breaks down the term by explaining the types, when, how and who you can file a lien against. The paper also introduces you to our blogs and articles to assist you in understanding well.
Introduction
It is globally known that whenever a person borrows a loan to purchase property or purchases an asset under a loan agreement with a bank or any other institution, the lender will place a lien on the asset or property. This begets the question, what is a lien? The work of a lien is to ensure that a creditor obtains the right to the property if a borrower fails to meet his legal or financial obligations, the grantor/the owner of the property is called the lienee while the party that receives the lien is referred to as the lienor or lien holder.
For instance, if Ahmed wants to buy a new house worth $400,000 and to facilitate the purchase he borrows a loan of the same amount from Kenya Commercial Bank (KCB), KCB will need to guarantee the repayment. It will therefore require Ahmed to provide the house as collateral for the loan. KCB will file the document with the relevant government agency to register a lien, and if it is for a fixture, it is created according to state real property law.
This will allow KCB to hold the house as collateral and to serve as a security in case Ahmed fails to honour the repayment of the loan. If he fails to, KCB will have the right to take possession of the house, and it can exercise its right of sale to satisfy the obligation under the mortgage agreement.
From the example given, a lien in property law would refer to a charge upon property which secures the payment of debt or satisfaction of duty, the term is of French origin, but its foundational basis as a legal principle traces back to the early Roman where it was first recognized as a property right, so the security instrument on loan borrowed is what creates the lien.
Connect this to 2020 when events like Covid-19 forced lenders to struggle to create economic stability, then ask yourself how you would manage liens during that period.
Types of Liens
Liens can be addressed based on two major categories, that is, general or specific and voluntary or involuntary liens. A general lien is attached to all the assets/property of the borrower. An example is Internal Revenue Service (IRS) tax liens because they have the authority to sell a variety of the borrower’s property to settle the debt. A specific lien is attached to a specific asset/property offered as collateral in exchange for the loan credit, such as a mortgage.
The second category, voluntary lien, covers that an individual uses their property to secure a loan, so the loan securing the property becomes a voluntary lien. Involuntary lien refers to liens attached to property without the owner’s consent, like municipal liens in Florida, which are imposed according to chapters 159 and 170 of Florida Statutes.
Tax lien
These are involuntary liens imposed by state or federal statutes. They can also be defined as a legal claim that a local or municipal government places on an individual’s real property when the owner has failed to pay the property tax debt and the municipality or the IRS may seize your property to recover tax debt. Tax liens cover income, business and property taxes, which are usually attached to the property to ensure they get paid first.
How to remove a tax lien from public records?
Remove a tax lien. There are a few situations in which it may be possible:
- If the lien was mistakenly placed on your account (error).
- If you have fully paid off your tax debt balance.
- If the 10-year statute of limitations for the tax debt has expired.
The IRS may remove a tax lien in the following situations:
If there was an error in the imposition of the tax lien
In some cases, the lien may have been mistakenly placed on the wrong taxpayer. If this is the case, you should contact the IRS to notify them of the error. Once the IRS confirms the error, they will remove the lien.
If the tax debt balance has been paid or satisfied
It’s usually recommended to cooperate with the IRS and pay your tax debt in full. If you cannot afford to pay in full, you may be able to negotiate a payment agreement with the IRS to pay back the debt over time. Once the debt is paid or satisfied, the IRS will remove the tax lien.
There are situations in which the IRS may agree to accept a partial payment if you cannot repay the total amount of your tax debt due to financial hardship. Additionally, the IRS is legally allowed to collect tax debt for a maximum of 10 years, after which the statute of limitations expires. However, if a state-issued lien is involved, the timeline for collection may vary according to the relevant state laws governing the statute of limitations.
When the statute of limitations for a tax lien expires, it can no longer be enforced by the IRS. However, it’s worth noting that the IRS can refile the lien during that period, which means that you may be unable to avoid the debt you owe after 10 years. Additionally, if you are currently in a payment plan or agreement with the IRS to repay your tax debt, the repayment timeline can be extended beyond the statute of limitations.
Processes involved in tax lien removal
Tax lien withdrawal
To remove a tax lien before it is placed on your account, you must pay the tax debt balance in full immediately after receiving the Notice of Intent to File a Tax Lien. The IRS typically places a tax lien on your account 10 days after notifying you of their intent, so swift action is necessary to pursue this option.
Tax lien release
This is the process used to remove a tax lien that has already been placed against you. You can either make payments over time or pay the balance in full, depending on your agreement with the IRS. Once your tax debt is paid off, the IRS will issue a lien release to remove the tax lien from your account.
Judgment lien
This is attached to your property by the court when a creditor files a lawsuit against you and wins the court judgment. This type of lien varies from state to state, primarily based on the laws like the Texas Property Code. Mostly this provides the method through which your property can be sold or seized to satisfy the debt.
Mortgage lien
When you take a home loan, the lender attaches a lien to your real property until you pay off the loan, the lender will have a legal right to take possession of the house if you fail to repay your loan.
Mechanic lien
This is also called a construction lien, attached to your property by an unpaid contractor. Ideally, the contractor can impose a lien on your property and sue to enforce the lien. Material suppliers can also attach a lien to your property as a security interest. You cannot sell that property until you settle the lien claim by paying the material supplier or the contractor. For public projects, the unpaid party can recover payment by filing a bond claim, use the chance and get paid through the expertise of the LegaMart team.
Preliminary Notice vs Notice of Intent to Lien in Mechanic Lien
A preliminary notice and a notice of intent to lien are two documents that serve different purposes in the lien process.
A preliminary notice, also known as a notice to owner or notice of furnishing, is a document typically sent by a subcontractor, supplier, or another party providing labour or materials on a construction project. This notice is designed to inform the property owner and general contractor that the claimant is working on the project and has a potential lien right in the event of non-payment. It is typically sent before any work begins or a dispute over payment arises.
On the other hand, a notice of intent to lien is a document typically sent after work has been completed and payment has not been received. This document notifies the property owner and general contractor that the claimant intends to file a mechanics lien against the property if payment is not made within a specified period. A notice of intent to lien is often seen as a last resort for a claimant who has not been paid for their work.
Uniform Commercial Code (UCC) lien
This set of uniform laws governs commercial transactions in every state and across state lines. So if someone lends you money, they can submit the UCC filing, known as UCC lien, with the secretary of state, which puts a legal claim on your personal or real property until you pay off the debt. The debt is mainly from a loan taken but not for purchasing a specific asset. This type also belongs to the voluntary and specific category.
Procedure for filing a lien
Filing a lien is a complex process that must be approached with caution, and therefore one should first exhaust all the available options, including approaching the debtor for a payment plan, before following the below steps;
Notify the debtor: This should be done within the required time per the state rules, and first, you should make sure you have the right to file.
Review the state’s deadline: Most states, like Louisiana, give only 60 days from when the work was done for one to file a lien.
Conduct research on the property: This is to help you to know the actual owner and to understand the presence of any liens which may take priority. This will assist you in having the legal description of the property.
Draft the lien: This should mostly be one page containing the creditors, the debtors and the property details. Here it is essential to seek the advice of an attorney on the state rules as more documents might be required.
File the lien: This should be done in the country where the property is located, followed by a notice to all those included.
Enforcement: This follows if the debt hasn’t been paid after filing and will see the debtor’s property being sold to settle the debts; the enforcement is by filing a foreclosure lawsuit.
Who can you file a lien against?
A lien can be filed against assets, business property, vehicle or a newly purchased asset to secure the repayment of money owed or as a construction lien against the property of a person who hired you as a contractor.
Who can file a lien?
Any person can file a lien against a debtor to secure the repayment of money owed, like a contractor who hasn’t been paid or a winner of judgment for money owed can also file a lien.
How to Enforce a Lien
Enforcing a lien typically involves taking legal action against the debtor to recover the unpaid debt. Given that lien enforcement involves legal action, the process is similar to that of a regular lawsuit. This entails drafting a foreclosure suit that includes all relevant parties as defendants, submitting it to the court, and serving all parties involved. Here are the general steps to enforce a lien:
- Determine if you have a valid lien: To enforce a lien, you must have a valid lien against the debtor’s property. Review the preliminary lien notice, which must be served within a specified number of days from the commencement of work. Additionally, the lien must have been properly filed or recorded according to state laws and regulations.
- Notify the debtor: You may need to send a demand letter or notice to the debtor informing them that they have an outstanding debt and that you intend to enforce your lien.
- File a lawsuit: If the debtor does not pay the debt or come to an agreement with you, you may need to file a lawsuit against them to enforce the lien. Your lawyer will prepare the foreclosure suit, which needs to be served to all involved parties with a stake in the property. These parties may include the property owner, the primary contractor (if you’re a subcontractor or supplier), and the mortgage provider. Once the suit has been filed and served, the case proceeds similarly to a typical lawsuit.
- Obtain a judgment: If you win the lawsuit, you will obtain a judgment against the debtor. This judgment will allow you to enforce the lien and take further legal action to recover the unpaid debt.
- Execute the judgment: Once you have a judgment, you can take various legal actions to enforce the lien. The court may direct the property sale to fulfil your claim (auctions or sales), seize the debtor’s property, or garnish their wages or bank accounts.
How to Remove a Lien from Your Property?
Below are different ways to remove a lien from a property:
Paying Off the Debt
When you pay off the debt, the creditor will release the lien and file a release with the same authority that recorded the lien initially. This release removes the lien from your property, allowing you to sell, trade, or transfer it to another party.
Ask the court to remove the judgment lien.
In most states, you can petition a court to remove a judgment lien, but the outcome depends on the property’s nature. If you suspect the lien was obtained through fraud, you may sue the lienor, and if you win, the court may remove the lien. If the lienor didn’t follow proper legal procedures, you can ask a court to remove the lien. Some liens must be filed by a specific deadline, and if the lienor misses the deadline, you can petition a court to remove the lien. You may also be able to get the lien removed if you were not served a copy of the lien. It’s worth noting that a lawsuit to remove a lien can be costly and complex, so seeking the help of a real estate lawyer is advisable.
Negotiating a Partial Payoff
In the event that a creditor places a lien on your property, you can negotiate with them to settle the amount owed for less than what you owe. During these negotiations, requesting that the creditor release the lien is important. If you require assistance with the negotiations, hiring a debt settlement lawyer may be beneficial.
File for bankruptcy
Filing for bankruptcy could allow you to remove certain liens through techniques like “lien avoidance” or “lien stripping.” However, this option should only be used as a last resort and only if you have other debts that make filing for bankruptcy necessary. In addition, note that this option is only applicable to specific types of liens, such as judicial liens, and may have a limited enforceability period.
Wait for the Statute of Limitations to Expire
Lien can expire if a specific amount of time passes, but it’s important to note that the statute of limitations for a lien varies depending on the type of lien and state law. However, it’s important to remember that some state laws permit lienors to renew their lien.
Get help with filing a lien
Raise your concerns and questions on how to file a lien and get the quickest answer from our +2000 lawyers from LegaMart, who provide high-quality and affordable legal services from 100+ countries globally. You can also check the articles posted on our website for more simplified and free legal advice to understand lien waivers and releases. Reach out today and secure your lien rights.
Conclusion
Filing a lien is an essential legal right for contractors and suppliers seeking payment for their work. Understanding the rules and regulations involved in the lien process is crucial, as it can help ensure that your lien is properly recorded and enforced. By taking prompt action and seeking the guidance of a qualified attorney when necessary, you can help protect your financial interests and avoid costly disputes. Remember, a properly filed and enforced lien can effectively secure payment for your services and materials.
Frequently Asked Questions
Why should you remove a tax lien notice from public records?
It’s important to remove a tax lien notice from public records because having a tax lien on your record can negatively impact your credit score and make it difficult to obtain loans, credit cards, or other forms of credit in the future. Additionally, a tax lien notice can harm your reputation and make it harder to get hired for certain jobs, particularly those in finance or government. Therefore, removing a tax lien notice can help protect your financial and professional future.
What are the consequences of filing a lien?
Filing a lien can have serious consequences for both the property owner and the party filing the lien. For the property owner, a lien can negatively impact their credit score and make it difficult to sell or transfer property ownership. For the party filing the lien, failure to follow the proper legal procedures can result in the lien being deemed invalid or unenforceable.
What are the types of Loans that do not require Liens?
Several types of loans typically do not require liens, including unsecured personal loans, student loans, credit card debt, and medical debts.
