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Liens

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Winter 2009, Volume 8, Number 2

Liens, Liens, and More Liens
by Gary F. Casaly, Special Counsel

Liens can plague a title. There are numerous types of liens and this article will discuss some of them.[1] But just as important as the type of liens that exist is their effect, how they’re released and some common misconceptions about them.

Mortgages

Let’s start our review of liens with one that is familiar to everyone. Mortgages seem like simple kinds of liens: you own some property (or are in the process of purchasing it), you give the lender a mortgage and – woosh! – there’s a lien on your property. These liens are easy to spot, so they do not seem appropriate for an in-depth discussion. That’s true, but there are some mysterious attributes about mortgages that appear in reported cases and may not be so obvious and can cause headaches if they are not spotted.

Let’s start with a situation that most conveyancers might find kind of odd, but which might be missed if the legal principles involved are not understood. In Salter v. Quinn, 334 Mass. 220, 134 N.E.2d 749 (1956) a very normal set of facts occurred but with devastating results only because attention was not paid to the mischief lurking in those rather seemingly innocuous facts. Salter revolved around a dispute between Quinn, the seller, and Salter, the purchaser under a purchase and sale agreement — the buyer claimed that the seller could not produce a “good marketable clear record title,” as required by the agreement, while the seller claimed that he could. The agreement was executed in 1950, but it appeared that in the chain of title about 18 years prior these events occurred:

  1. In 1928 Soule and Wyman gave a mortgage to the Waverly Trust Company on the property on Trapelo Road in Belmont. The mortgage was in the usual form and contained a power of sale.
  2. In August 1933, after the mortgage had been duly assigned to Belmont Trust Company, that bank failed and the conservator in possession made an entry under the mortgage (which was confirmed by the commissioner of banks in March, 1938).
  3. In September 1933, the conservator in possession of Belmont Trust Company assigned the mortgage to Dagmar.
  4. Under the power of sale in the mortgage Dagmar foreclosed it pursuant to G.L.c. 244, §§14, 15, with the sale taking place on October 7, 1933. The foreclosure deed and affidavit of sale were dated October 9, 1933 and were recorded on November 7, 1933. The purchaser at the sale, and the party to whom the foreclosure deed was given, was Wyman, one of the original mortgagors.
  5. By way of transfers thereafter title came down to Quinn.

Based on the above facts the lower court held that the title was defective and that Quinn could not perform his contractual obligation and held that Salter was entitled to his deposit back. With Wyman, one of the co-borrowers, being the purchaser things look a little fishy. But that in and of itself was not the sole reason for the court’s decision. In this regard, the court was careful to point out:

At the threshold of our consideration of this case we feel it necessary to say, and indeed it is conceded by the defendant, that his title cannot rest solely upon the sale under the power in the mortgage because G.L.(Ter.Ed.) c. 244, § 15, as amended, requires that a copy of the notice of sale and an affidavit of compliance with c. 244, § 14, be recorded in the registry of deeds within thirty days after the sale. Obviously in the case at bar this affidavit was not recorded until thirty-one days after the sale. O'Meara v. Gleason, 246 Mass. 136, 140 N.E. 426.

The thirty-day requirement that the deed and affidavit be recorded within that time to validate a sale is no longer the law — it was eliminated as a requirement in 1991 — but it was the law when the facts of the case occurred and would apply to any foreclosures before 1991.[2] Because the foreclosure by sale was defective the court focused on the entry but noted that “were it not for other circumstances” the entry would have cured the problem. The court then explained what these “circumstances” were and how they led to a different result:

These circumstances, the plaintiff contends, are that Wyman and Soule were cotenants of these premises when the mortgage to the Waverly Trust Company was originally given. They then became cotenants in the equity of redemption. There is nothing in the record to show that this relationship between them ever changed. Wyman acquired title by reason of his purchase at the foreclosure sale of this mortgage which carried with it the benefit of the entry made by the conservator of the Belmont Trust Company. The general rule in this aspect of the case is stated in Barnes v. Boardman, 152 Mass. 391, 25 N.E. 623, 9 L.R.A. 571, wherein it is said that ‘when tenants in common are actually in possession, or are entitled to immediate possession, a purchase of an encumbrance on the common property [by one cotenant] will generally be deemed to have been made for the benefit of all . . . and that, to this extent, a certain fiduciary relation exists between the tenants in common.’ Hurley v. Hurley, 148 Mass. 444, 19 N.E. 545, 2 L.R.A. 172; Fiske v. Quint 274 Mass. 169, 174 N.E. 196.

What the court is saying here is that even though the entry would have after three years ripened into title in Wyman (because the deed by Dagmar to him at the defective sale was essentially an assignment of the mortgage) that title was held by Wyman as a fiduciary for his cotenant, Soule, so Wyman was unable to convey a good title because of a constructive trust, resulting in Quinn being unable to convey a good title to Salter.

Keep in mind that the court is not saying that Wyman was disqualified to bid and take title at a foreclosure by reason of the exercise of the power of sale, but that since the sale was defective the deed to him was really “a purchase of an encumbrance on the common property” (the mortgage) while both cotenants were in possession causing the title acquired after the three-year period under the entry to be held for the benefit of the other cotenant.

Admittedly, Salter is an anomaly, but it highlights the kind of problem that a mortgage can spawn, causing an otherwise good title to nonetheless be subjected to a lien or outstanding interest.

Mortgages can also give rise to continuing or reactivated liens in another way. A mortgage is essentially a warranty deed with a defeasance clause — the lender gets the title to the property but its title will be defeated and revert to the owner if the owner satisfies the underlying obligation.

Take the situation where the owner gives a first mortgage and then a second mortgage to different lenders (or even the same lender). The two lenders have warranty deeds from the borrower. Now, warranty deeds (and in some instances quitclaim deeds)[3] have a peculiar attribute: if they are given and the grantor or mortgagor thereafter acquires title to the property therein described that title will inure to the grantee or mortgagee. In other words, mortgages catch after-acquired title. If you’re not paying attention, this quality can cause more headaches.

So back to our two lenders, both of whom have these warranty deeds. The first mortgagee forecloses, which if done properly will “wipe out” the second mortgage. If the mortgagor thereafter reacquires title to the property the warranty covenants in the second mortgage will cause that mortgage to be revived under the doctrine of estoppel by deed[4] and the mortgagee in that mortgage will (again) have a valid lien against the property. In the Salter case we saw the mortgagor, or one of them, getting title back, resulting in that mortgagor being deemed to hold it in a constructive trust, but under the facts we’re exploring now we find that the title, once reacquired, is subjected to the lien of the second mortgage: so we have similar, seemingly innocuous fact patterns, each resulting in an encumbrance on the title arising in different ways.

Finding the reacquisition of title that gives birth to the revived mortgage lien may not be as easy as it sounds. The original borrower may come back into title far down the line, so keeping the names of the prior owners in mind is important. Of course the relative priority of the revived mortgage will depend upon when such a reacquisition occurs. If, after the foreclosure sale of the first mortgage a third party acquires the title and places a mortgage on it, the reacquiring of the title by the original mortgagor will be subject to that third-party mortgage. And, sometimes a reacquisition of title by the original mortgagor will not result in a revival of the mortgage at all where, for example, the subordinate mortgage stated that it was subject to the first mortgage (the one that was foreclosed). In such a case there would be no “estoppel by deed” because under Huzzey v. Heffernan 143 Mass. 232 9 N.E. 570 (1887) “full covenants of warranty” are absent from the instrument.[5]

The concept of the revival of a subordinate mortgage, although revolving around the specific kind of covenants contained in a mortgage (warranty covenants), is rooted in the related concept of certain liens attaching to after-acquired property. It is for this reason that a simple “run down” of the title to property owned by someone from and after their acquisition may not disclose all liens that affect the title, because some of these liens might have been recorded before the owner even came into title. Knowing which kinds of liens these are and where to look for them is important. A discussion of those liens follows.

Federal Tax Liens

It is nearly common knowledge that federal tax liens will attach to after-acquired property. If a lien is filed against Mr. Jones and he thereafter acquires property, the lien will “jump onto” the property and “catch” it so that it will be made subject to the encumbrance. It becomes obvious that by simply running Mr. Jones in the grantor index from and after his acquisition of a certain piece of property will not necessarily disclose such a lien since it may have been recorded before he even came into title. It is for this reason that Mr. Jones must be run in the index even before he became an owner. 

How far back do you have to go in searching Mr. Jones in the index? Federal tax liens are good for ten years[6] but can be renewed by an extension timely filed during the one year period ending ten years and thirty days after the original assessment as stated in the instrument. Note that the refiling period is measured from the date of the assessment and not the date of recording of the lien, and once that period has expired no refiling can be made (although a new lien could be filed, but it will not relate back).

Although federal tax liens will catch title once acquired, they may not in some instances take a priority position over a mortgage if the mortgage is a purchase money mortgage. In this regard, the IRS issued a Revenue Ruling (No. 68-57, Tech. Info.Rel 957, issued Nov. 11, 1968) which states:

In view of the legislative history of the Federal Tax Lien Act of 1966, the Internal Revenue Service will consider that a purchase money security interest or mortgage valid under local law is protected even though it may arise after a notice of federal tax lien has been filed.

The mortgage should (but does not have to) recite that it is a purchase money mortgage, but if the mortgage is in fact a purchase money mortgage the federal lien will “catch” the buyer’s title, although it will be subordinate to the mortgage.

The federal taxing laws were substantially overhauled by the Internal Revenue Code of 1986, but there seems to be no reason why the revenue ruling, which was promulgated under the old code, would be inapplicable under the present law.

Keep in mind that it is only a purchase money mortgage which enjoys the aforementioned priority over a federal tax lien. Where the mortgage is a refinance mortgage, the federal tax lien will take priority over it.

Massachusetts Tax Liens

The statute that governs these liens (Chapter 62C) is silent on the question of whether these liens would catch after-acquired property. When the question came to, but was not squarely before the court the Appeals Court in dicta appearing in Durkin v. Ferreira, 21 Mass. App. 771, 490 N.E.2d 498 (1986) said, “[w]hether a recorded tax lien under Chapter 62C, §50, applies to after-acquired property of record appears to be a matter about which doubt exists.” It was not until sixteen years later that the Supreme Judicial Court rendered an answer on the subject:

Although a question of first impression in the Commonwealth, the parallel language of the Federal tax lien statutes . . . . has long been construed to apply to after-acquired property. (Citations omitted.) We find the Federal precedent persuasive. * * * The statutory language establishing that a lien “upon all property and rights to property, whether real or personal, belonging to [the taxpayer] . . . shall continue until the liability ... is satisfied,” G.L. c. 62C, § 50( a), indicates that “the lien applies to property owned by the delinquent at any time during the life of the lien.” Glass City Bank v. United States, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56 (1945) at 268, 66 S.Ct. 108. Therefore, liens may attach to after acquired property.

Note that the court said that these liens “may attach” to after-acquired property. Based on the opinion it seems clear that the court is not unsure of its answer, but rather is describing the character of the lien and its actual effect on title. Moreover, a regulation addresses the capability of the lien to catch after-acquired property. 

It is not clear whether in finding a “parallel” between the federal statute and the Massachusetts statute our court would expand its decision and also adopt the reasoning of Revenue Ruling No. 68-57 that provided that a purchase money mortgage would gain a priority position over a previously recorded lien. However, the theory has been applied by the Massachusetts courts in a similar circumstance in Libbey v. Tidden, 192 Mass. 175, 184 N.E. 313 (1906).[7]

These liens have a life of ten years (used to be six) and can be refiled.

Child Support Liens

These liens have the noble purpose of protecting children — persons who are unable to protect themselves. But these are very dangerous liens and the answer as to whether they catch after-acquired property is specifically addressed by the statute.

The danger that lurks in the lien arises because of the peculiar provisions concerning their duration. Federal tax liens and Massachusetts tax liens are limited to a ten-year period from their assessment. In the case of child support liens the duration is measured from and after the “perfection” of the lien. One might suppose that this means that the lien is gone ten years after it has been recorded. This notion is correct in some instances and incorrect in others. For example, the statute tells us that the filing of a lien operates to “perfect” it “as to any interest in real property owned by the obligor that is located on the county or registry district where the lien is recorded or registered.” This means that if the obligor already owns property in that county or registry district the filing of the lien will “perfect” it, and once perfection has occurred the ten-year period begins to run.

In the case of after-acquired property there’s a different rule:

If the obligor subsequently acquires an interest in real property the lien shall be perfected upon the recording or registering of the instrument by which such interest is obtained in the registry of deeds or registry district in the county or registry district where the notice of the lien was filed within 10 years prior thereto.

Note an important aspect about this provision. If property is acquired after the lien has been recorded the lien will “catch” the property interest it if the lien “was filed within 10 years prior thereto.” Once this event occurs — the existence on record of a property interest acquired within 10 years of the fling of the lien — “perfection” arises. It is from the moment of this perfection that we begin to measure the duration of the lien as to this after-acquired property — we then begin to count again up to 10 to find out when the lien expires. That is, the first 10-year calculation is to determine if the property interest was timely acquired within 10 years of the filing of the lien (and, if so “perfection” has occurred) and the second 10-year calculation is to determine if the lien, once perfected, remains viable or has expired. Note carefully that under this calculation a lien once recorded could potentially remain in effect for as much as 20 years (and longer if extended).

We’ve explored some of the liens that can plague a title, and even discussed the statute of limitations that can cause these various liens to be dissolved. But there are other ways in which liens can be eliminated — more particularly how they can be divested — and thereby no longer affect a title. In particular, estate tax liens – both federal and state — have unique qualities that can cause them to be divested.

Of course, nearly everyone knows that estate tax liens generally have a life of ten years — that’s a statute of limitations. After that time the lien is dissolved or has expired. But there are ways, other than by the obvious method of paying them, that these liens can be eliminated from a title by being “divested.” A federal estate tax lien, for example, will be divested from non-probate (e.g., jointly held) property if and when the surviving joint owner conveys the title to a purchaser for value. Care must be taken, however, to know that this divesting quality is limited to non-probate property and not probate property. In this regard the case of Fall River Savings Bank v. Callahan 18 Mass.App.Ct. 76, 463 N.E.2d 555 (1984) is quite instructive. In that case Mr. Callahan, a lawyer for the Fall River Savings Bank, who certified the title to property to the bank and provided, as required by statute, a copy of the certification to the borrowers (the Harrisons), stated in his opinion of title that the property was a good and clear record title. What had happened, however, in the chain of title was that Esther Sousa owned the property in her own name and upon her death her heirs conveyed it to a trust that thereafter conveyed the title to the Harrisons. At the time of the purchase by the Harrisons only four years had elapsed since Esther’s death, so the 10-year statute of limitations had not run on the federal estate tax lien. When the Harrisons tried to sell their property the title was rejected as being encumbered by the federal estate tax lien. After some discussions with the bank the Harrisons sued Callahan for malpractice.

Mr. Callahan took the position that the transfer of title (or at least the one for valuable consideration from the trust to the Harrisons) after Esther’s death divested the title of the federal estate tax lien. The court stated that Mr. Callahan had misread Section 6324(a)(2) of the Internal Revenue Code, that states:

Any part of such property (emphasis added) transferred by (or transferred by a transferee of) such spouse, transferee, trustee, surviving tenant, person in possession of property by reason of the exercise, nonexercise or release of a power of appointment, or beneficiary, to a purchaser or holder of a security interest shall be divested of the lien provided [herein] and a like lien shall then attach to all the property of such spouse, transferee, trustee, surviving tenant, person in possession, or beneficiary, or transferee of any such person, except any part transferred to a purchaser or holder of a security interest.

The statute seems to say exactly what Mr. Callahan was arguing: “Any part of such property transferred by (or transferred by a transferee of) such . . . transferee . . . shall be divested of the lien.” But the secret to understanding the statute’s application is to focus on the phrase “such property.” What is the word “such” modifying? The words “such property” are crucial to the proper interpretation of subsection (2), which, of course, is preceded by subsection (1). Section 6324(a)(1) provides as follows:

If the estate tax imposed by Chapter 11 is not paid when due, then the spouse, transferee, trustee (except the trustee of an employee’s trust which meets the requirements of section 401(a)), surviving tenant, person in possession of the property by reason of the exercise, nonexercise, or release of a power of appointment, or beneficiary, who receives, or has on the date of the decedent’s death, property included in the gross estate under sections 2034 to 2042, inclusive, [emphasis added] to the extent of the value, at the time of the decedent’s death, of such property, shall be personally liable for such tax.

Understanding the application of this section in turn requires knowing what kinds of property are “included in the gross estate under sections 2034 to 2042,” as that phrase is used in the section. They are: 

Section Type of Property
Section 2034 Dower and Curtesy
Section 2035 Adjustment to Gifts Made Within 3 Years of Death
Section 2036 Transfers with Retained Life Estate
Section 2037 Transfers Taking Effect at Death
Section 2038 Revocable Transfers
Section 2039 Annuities
Section 2040 Joint Interests
Section 2041 owers of Appointment
Section 2042 Proceeds of Life Insurance

It is obvious that probate property is not included in the list. The court was right and Mr. Callahan was wrong. In Fall River Savings Bank the section that was applicable was Section 2040 – Joint Interests.

The lien for Massachusetts estate taxes can also be divested before the 10-year statute of limitations has run. However, the requirements to effect a divestment are a bit more convoluted. The applicable portion of the relevant statute (G.L.c. 65C, §14) is this:

Any part of such real property, which, prior to the decedent’s death, was conveyed by a deed of the decedent not disclosing an intention that it take effect in possession or enjoyment at or after his death and such deed was recorded or registered prior to the decedent’s death . . . transferred by, or transferred by a transferee of, such spouse, transferee, trustee, surviving tenant, person in possession of property by reason of the exercise, nonexercise, or release of a power of appointment, or beneficiary, to a bona fide purchaser, mortgagee or pledgee, for an adequate and full consideration in money or money’s worth shall be divested of the lien provided [by the statute] . . . .

The statute is difficult to read primarily because of its punctuation, but to effectuate a divestment of the lien upon the transfer by a party after the decedent’s death four things must happen: (i) the decedent must have made a conveyance during his lifetime, (ii) the conveyance must not disclose an intention that it take effect in possession or enjoyment at or after the decedent’s death, (iii) the deed must have been recorded before the decedent’s death and (iv) the party to whom the conveyance was made (or such person’s successor) must transfer the title for adequate and full consideration.

Liens can be divested in another way. In the case of tenancy by the entirety a lien against any one of the parties cannot compromise the expectancy of the survivor in the event that one of the parties dies. Because a lien cannot sever such a tenancy, if the party against whom the lien has been filed thereafter dies the survivor will take the title free of the lien — it will be divested. This is not to say that the lien has no affect on the interest of the debtor against whom it has been filed — it does — but if that party dies first still married to the other the lien will not affect — it will be divested from — the interest that the survivor takes. Because the lien does in fact affect the interest of the debtor while he or she is still alive, if the other party dies first, the debtor, who will succeed to the full title, will hold that title subject to the lien that was filed against him or her.

To elaborate on the foregoing, when we discuss liens we need to do it in context. To say that a lien is an encumbrance on title is an over simplification, so we need to be mindful as to what other kinds of ramifications liens can have upon land. One question that concerns a lien is whether, when it is filed against one of two or more joint tenants (as opposed to a tenant by the entirety discussed above), it will sever the joint tenancy. Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 applied the common law rule concerning the nonseverance of a joint tenancy based on the facts in that case. That case, which was one of first impression, concerned the effect of an old age lien on a joint tenancy, and the court, citing Gua v. Hyland, 230 Minn. 235, 41 N.W.2d 444, held that such a lien did not sever the joint tenancy. However, in applying the common law rule the court cited Goff v. Yauman, 237 Wis. 643, 298 N.W. 179, 134 A.L.R. 952, where the Supreme Court of Wisconsin held otherwise, distinguishing that case based upon the fact that it was decided upon the construction of a statute.

An execution seems to stand on a different footing than an attachment or other liens generally in connection with the question of the severance of a joint tenancy. Although an attachment would appear to be a mere lien placed on the property for security in connection with the collection of a debt, and would not thereby sever the tenancy under the rule announced in Weaver v. City of New Bedford, 335 Mass. 644, 140 N.E.2d 309 (1957), an execution is governed by statute. Under G.L.c. 236, §12 it is provided that:

If land is held by a debtor in joint tenancy or as a tenant in common, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant.

The statute uses the term “taken on execution,” as opposed to levy and suspend on execution, which might suggest that a severance of the tenancy occurs only after the sale is complete. But it is axiomatic that a sale by the sheriff pursuant to a deed to a purchaser will sever the joint tenancy. It seems, therefore, that the statute is contemplating simply the recording of the execution as being the trigger which severs the tenancy and causes the debtor and the other tenants to be regarded as tenants in common. Otherwise the statute has no purpose not already governed by law. This is consistent with the recitations in the execution that the sheriff has seized the title (as opposed to the case of an attachment, where the title is simply impressed with a lien pending the outcome of the litigation). 

The phrase “taken on execution” appears in other statutes, including G.L.c. 236, §4, which was interpreted in Still Associates, Inc.. v. Porter, 24 Mass. App. Ct. 26, — N.E.2d —[8] (1987). From this case it seems that the phrase “taken on execution” includes merely the recording of the execution.

If the joint tenancy is severed by reason of the recording of the execution by the sheriff then the co-tenant will not succeed to the title to the property by reason of the tenancy upon the death of the debtor. In such a case not only would the title not be complete in the survivor upon the death of the debtor, but the half interest owned by the debtor would be impressed with the execution.

Homesteads

What’s the relationship between liens and a homestead? The answer to that question depends on knowing what a homestead is.

What is a homestead? Let me paraphrase from an article that I wrote in this newsletter in 2006. I think most people would agree that a homestead is something that preserves some interest in property against the onslaught of and liens recorded by creditors. But what exactly is it, what does it preserve, and how does it do it? The first thing that needs to be touched upon in helping to understand homesteads and their relation to liens is to recognize that a homestead is a possessory estate. That fact needs to be focused on in order to be able to deal with the many attributes of this mysterious interest in real estate and its relationship to liens. By the term possessory estate I mean that it is not an interest in the fee simple title to land, but rather is a vehicle for protecting the use and occupation of that land for the benefit of the declarant and members of his or her family.

If I were to say that a life estate permits the life tenant to possess the property, although he or she does not own the fee, the concept would be fully understood by the reader. If I were to say that under G.L.c. 209, §1 the nondebtor spouse under a tenancy by the entirety may not be expelled from a property he or she owns with the debtor spouse for debts of the latter, that concept would be easily comprehended. But once I say that a homestead is a possessory estate and protects the use and occupation of the property by the homestead declarant and of his or her family, confusion quickly sets in. But in actuality using these analogies are not far off base. When a homestead is created its purpose is to prevent creditors from dispossessing the declarant and his or her family from the property, up to a dollar value of that occupation. In other words, a homestead prohibits creditors from kicking the declarant and the family out of the property, but does not prevent the creditor from proceeding against the property itself. Just like a creditor against property in which a life tenant has an interest, the creditor can acquire and sell an interest in the property, but will nonetheless have to permit the occupant (life tenant or homesteader, as the case may be) to continue to occupy the property. This simple concept will be helpful in exploring the relationship between homesteads and liens.

It becomes evident when we look at homesteads this way — the fact that this interest protects the possession of the homesteader and his family — that recording a homestead will not prevent liens from attaching to the underlying title. In fact, lienors can actually enforce their liens and get ownership of the underlying title — but they can’t kick the homesteader and his family out. Keep this fact in mind when passing on a title with a homestead on it, because if you think the homestead will protect the title itself you may be unhappily surprised.

Okay, so a homestead will not protect the title against liens. But a homestead can impress a lien-like interest upon a title. This interest is the right to possession discussed above. Once a homestead appears of record you must be mindful as to how it must be released. If there is a spouse the spouse must join in any conveyance (deed, mortgage, etc.) in order for the release by the declarant to be effective. Knowing if there is a spouse is the trick here. Many times an individual will take title in his or her own name, and then declare a homestead. If you’re not paying attention you may think, with the one individual alone being in title, that there is no spouse to deal with. But married persons take title in their individual names quite frequently. Even if you see a deed into a person characterizing him or her as a single person, who thereafter declares a homestead, you have to think for a moment — people do get married after they acquire title to property! The resolution, of course, is to have a recitation in the deed or mortgage out as to the status of the grantor. If single, no spouse joinder is necessary; if married, the spouse must join. At the end of this article you will find a table that summarizes some of the liens I have discussed. 

Type of LienDurationRefile?Comments
State Lien
General (Tax)
Liens
10 years from
assessment
Yes6 years duration if expired by December 31, 2004.
Catches after-acquired property per court decision.
Child Support Liens10 years from “perfection”YesPerfection occurs when lien and title evidence (e.g., deed) co-exist at the same time in public record. Catches after-acquired property per statute if property is acquired within 10 years of filing lien.
Business Entity Excise3 yearsNo provisionWas limited to corporations, but now applies to all business entities.
Litigation Lien
Pre-judgment attachment6 yearsYes
Pre-judgment execution6 yearsYesSheriff may sell up to three months after lien has expired, so duration is technically 6 years and 3 months.
Private Lien
Mortgages35 years from recording or 5 years from stated maturityYesThe duration periods can be extended upon timely extension of mortgage or acknowledgment/affidavit that mortgage is not satisfied.
Municipal Liens
Real Estate TaxesForever, except limited to 3 years and 6 months from end of fiscal year of assessment when there has been an alienationN/ATax taking before end of duration preserves lien.
Death Taxes
Estate Taxes10 yearsNo provision
Mechanics’ Liens
Notice of ContractSee commentsNo provisionNotice of contract can be filed no later than 90 days after the general contractor has completed work. Filing of notice creates the lien. After statement of account (amount claimed under contract) filed, contractor has 60 days to bring suit and 30 days thereafter to record copy of complaint with land records; otherwise, lien expires.
Labor Lien90 daysNo provisionLien is “secret.” Once notice is filed it looks back and secures 30 days’ work done during the prior 90 days. Similar provision for statement of account and recording of complaint.

1 Mechanics’ liens will not be discussed in this article, as they were explored in detail in my recent article, “Mechanics Liens,” appearing in the Massachusetts Focus, Vol. 8, No. 1 (Summer 2009). [Back to Text]

2 This is important to keep in mind with respect to issues concerning any title’s history: the law in effect at the time of the occurrence of the facts must be applied, so it is just as important to be mindful of prior law as it is to “check the pocket part” for changes made since its enactment or judicial announcement. [Back to Text]

3 See Zayka v. Giambro, 32 Mass.App.Ct. 748, 594 N.E.2d 894 (1992) and Dalessio v. Baggia, 57 Mass.App.Ct. 468, 783 N.E.2d 890 (2003). [Back to Text]

4 “If a man convey, with full covenants of warranty, land to which he had not title, and he afterwards acquires a good title, his after-acquired title inures to the benefit of his grantee in the prior deed, upon the ground that he is estopped to say that he was not seized in fee to the estate which he has conveyed with warranty.” Ayer v. Philadelphia & Boston Face Brick Company, 159 Mass. 84, 34 N.E. 177 (1893). [Back to Text]

5 See also Eno and Hovey, Massachusetts Practice – Real Estate Law with Forms, West Publishing Co., (Third Edition, 1995), §10.17. [Back to Text]

6 In some instances they can have a life greater than this period if, for example, the taxpayer is in bankruptcy, which would “toll” the statute of limitations. [Back to Text]

7 In Libbey the question was whether a prior-recorded lien would prevail over a purchase money mortgage. In its decision it made some observations that suggest that where a purchase money mortgage is involved, it will prevail over prior recorded liens that catch after-acquired property. Using the analogy of the common law right to dower — the right of a spouse to a possessory interest in the property of the other spouse acquired at any time during coverture — the court said that in the case of a purchase money mortgage the acquisition of title and the granting of the mortgage are in fact “one continued act” or “one and the same transaction” such that the title does not abide or rest in the purchaser for any period of title and therefore the property is not subject to preexisting liens. [Back to Text]

8 This case was originally reported in West’s Massachusetts Decisions at 505 N.E.2d 570, but that volume indicates that it was “withdrawn from the bound volume at the request of the court,” which raises some interesting thoughts. [Back to Text]