The Ticktin Minute May 29, 2017 – Lien Priority Status

Foreclosure can be a very tricky and challenging process for homeowners that are behind (or will soon be behind) on their Homeowner’s,  Condominium Owner’s Association (collectively “Association”) and/or mortgage payments. A foreclosure could also be triggered by unpaid real estate taxes as well. Since the bank usually escrows these payments, this is not as usual where there exists a mortgage on the property. That is why a homeowner needs to obtain representation the minute that they anticipate that a missed payment will occur. A proactive stance ensures the best defense. This is the case since a foreclosure attorney can guide a homeowner proactively rather than simply act defensively against the bank.

There are various types of liens that can attach to a home. Failure to pay real estate county taxes can result in a governmental lien over the property, which has priority over all other non-tax liens. Similar, failure to pay IRS taxes causes a superior lien to be placed over all of the property of the debtor individual (including the home). A mortgage is a specific lien and attaches after a judgment in foreclosure is recorded in the county where the property is located. Another type of lien is an Association’s lien for unpaid Association dues. The following is applicable with respect to the priority of Association liens related to mortgages, which applies to mortgages recorded after July of 2008:

“for a claim of lien recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain specific language indicating that the lien relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages.”

Holly Lake Association, Inc v Federal National Mortgage Association, 660 So2d 266, 269 (FL 1995). In other words, the mortgagee must name the Association as a defendant to ensure that they are limiting the Association’s priority status due to the language contained in the Declaration of Condominium. Accordingly, where there is a foreclosure for failure to pay the mortgage or Association payments, each party names the other in the complaint (or adds themselves as a party). Further, the recording date of mortgages is the priority date where there is a second and/or third mortgage.

In conclusion, tax liens typically take super priority over other types of liens. Where there is a foreclosure pursuant to non-payment of a mortgage, the recording date of the mortgage typically controls. Further, where there is a non-payment of Association dues, the mortgagee (bank) is usually joined (or voluntarily joins) as a party to the lawsuit. In that case, the Association and the bank litigate the foreclosure together.

If you or a loved one is in foreclosure or is in risk of foreclosure, make sure to contact the attorneys of The Ticktin Law Group as soon as possible to determine your legal remedies. The Ticktin Law Group offers complimentary preliminary consultations.