Liens Against Jointly Owned Real Property

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Latest post 10-01-2008 11:35 PM by Drew. 2 replies.
  • 10-01-2008 1:41 PM

    • JARR
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    Question [=?] Liens Against Jointly Owned Real Property

    Could anyone please tell me what the law is in South Carolina regarding judgement liens against jointly owned real property?

    The property is a primary residence owned by a husband and wife. The judgement lien would be against one owner. I have two questions: 1)Could a judgement lien against one of the owners force the sale of the house if it is jointly owned? and 2) Would a lien against one of the owners be transferred along with the deed if the property is sold or bequeathed to another family member?

    Thank you.
  • 10-01-2008 2:08 PM In reply to

    Feedback [*=*] re: Liens Against Jointly Owned Real Property

    The information I have indicates that SC is not a state that recognizes tenants-by-the-entirety (TBE) ownership of real estate. That's important because the answers will be different if does recognize TBE ownership.

    "1)Could a judgement lien against one of the owners force the sale of the house if it is jointly owned?"

    Yes. The judgment lien holder could foreclose its lien and force the sale of the home, assuming that there is equity in the home for the lien to reach after taking into account the state homestead exemption. Note that the non-liable spouse would get/his her share of the sales proceeds however.

    "2) Would a lien against one of the owners be transferred along with the deed if the property is sold or bequeathed to another family member?"

    If the property is sold or otherwise transferred to someone else, the lien will follow the property. That's why buyers insist on getting liens like this paid at or before closing so they get a clear title.
  • 10-01-2008 11:35 PM In reply to

    • Drew
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    • Joined on 03-30-2000
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    re: Liens Against Jointly Owned Real Property

    Of course if somebody dies the results could vary--If the lien is against A's interest and A dies then the lien holder may be wiped out and B takes it all--conversly if B dies then A gets it all and A creditor has a bigger bite available.

    B could with some attention to rules of his or her state force the JWROS deed into a TIC holding with a 50/50 presumption of separate share value and thus lock out creditor from B's share even if B passes--if B wills share to C not A---or sells share to C .

    B might be wise to review options with counsel ?

    If there are secured creditors ahead of this one, and A goes bankrupt the new creditor may be wiped out--and in some quirky contexts if A is already underwater on his interest inthe property then an arguement can be made that his creditor lacks a secured position as there are no assets to secure it--especially if B triggers a TIC, thenA's interest is capped at 50%..

    It may not be an easy task for A's creditors to force a partion (a sale) as the politics of that area may favor family units--so there may be some room to barter a solution with the lien holder for reduced cash now in satisfactionof lien....

    In a perfect world one should pay his debts--but withthe help of counsel there maybe ways to frustrate ones creditors...so go pay for some counsel?



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