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  • October 26, 2014

Legal Corner - Ladue News: Business & Wealth

Legal Corner

Beware of Liens

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Posted: Thursday, November 25, 2010 12:00 am

A lien is the legal right to claim possession of property if the owner owes money to the person making the claim. Lien filings have increased since the recession began: A Texas woman recently burned down her house rather than pay a batch of liens. But most homeowners won’t have to resort to such drastic measures if they just take a few precautions.

    “A very common type of lien is a mechanic’s lien, a legal process that seeks to guarantee payment for contracted services on an improved piece of property,” says attorney Jack Hilton of Carmody MacDonald. Originally, this kind of lien was sought out by an actual mechanic if, say, a car owner failed to pay for contracted repair services. “Today, the practice is most common in architecture or construction: If a contractor builds or improves a home and you don’t pay him in full, he can sell the home to settle his claim against you,” he explains.

    Seems straightforward, but it can get tricky. “If you pay the contractor in full but he doesn’t pay his subcontractors, they can file a lien against your property,” Hilton warns. “Luckily, if you’ve completely settled your debt, that’s generally considered a defense if subcontractors file. But you can save a lot of time and trouble by protecting yourself upfront.” He advises homeowners to request lien waivers from the contractor and subcontractors at various stages of the building process. “For example, if you’re adding a sunroom that costs $100,000 and you’re paying in increments of $25,000 as the work is being done, get partial lien waivers after each of the first three payments and a final waiver when you make the last payment.”

    And if you’re buying a home, make sure all lien issues are resolved before closing. “Missouri’s mechanic’s lien statute was recently revised so that sellers must file an ‘intent to sell’ notice with the recorder of

deeds’ office 45 days prior to the intended sale, and also must post notice of intent to sell,” Hilton says. “This gives the contractor the chance to file notice that he has lien rights and intends to enforce them—and gives prospective buyers a chance to avoid a lien on their new home.”

    Also common are tax liens. “If you don’t pay your property tax, the city or county can get a lien against your property and sell it at auction,” says attorney Alison Marischen of Polsinelli Shughart. Trying to avoid a lien by claiming you never got a property tax bill doesn’t work, she adds. “The city or county is under no obligation to find you if they don’t have the right address, or if you inherited property and neglected to change the notice address,” she says. “The burden is on the owner. If you don’t receive a bill, don’t play ostrich: Reach out to the assessor’s office and let them know what’s going on.”

    Marischen also recommends checking out a property’s title insurance commitment before buying or selling. “It’s like a ‘snapshot’ of the property’s history—it lists every document filed in the recorder of deeds’ office that affects a piece of property, including mortgages and mechanic’s liens,” she explains. The title insurance commitment also lists any subdivison or condo assessment liens that may have been filed, she adds. “These liens can be filed against property if agreed-upon fees haven’t been paid. The subdivision or condo association can actually foreclose on property when fees aren’t paid, or even pass fees on to the next owner. So protect yourself by reviewing the title insurance commitment thoroughly.” 

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