Child Support Liens
G.L.c. 119A, §6(b)(1) states, in part:
Upon recordation or registration in accordance with subparagraph (3), such lien shall encumber all tangible and intangible property, whether real or personal, and any interest in property, whether legal or equitable, belonging to the obligor. An interest in property acquired by the obligor after the child support lien arises shall be subject to such lien, subject to the limitations provided in subparagraphs (3) and (5). (Emphasis added.)
Subparagraph 5, referenced in the above statute, has to do with the duration of the lien (previously six, but now ten years) and the refiling thereof. The subparagraph provides that the lien can be extended for additional ten-year periods “by recording or registering, within the one year next before the expiration of the unexpired lien, a further notice of the lien, as provided in subparagraph (3), without affecting the priority of such lien.” (Emphasis added.) The refling apparently can be done at any time, even after the original lien has expired, but if the refilling occurs “within the one year next before the expiration of the unexpired lien” the priority of the lien will not be affected, though other liens may have appeared of record in the meantime. Subsection 3, referenced in the above statute states, in part:
The filing [of the notice of lien] shall operate to perfect a lien when duly recorded and indexed in the grantor index or when registered, as the case may be, as to any interest in real property owned by the obligor that is located in the county or registry district where the lien is recorded or registered. A special index for liens created under this chapter shall be maintained in each registry of deeds or registry district. 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 six years prior thereto.
Subsection 3 does make reference to a “special index for liens created under this chapter,” but it does not seem that the failure of the register to keep such an index would have any affect on the lien, especially when it is noted that the section also states that the lien is perfected “when duly recorded and indexed in the grantor index.” (Emphasis added.) In this regard the “special index” seems to be for convenience only. Moreover, from other language contained in Section 3, indexing altogether may be irrelevant. The section also states:
A child support lien shall be perfected as to real property when both the notice thereof and a deed or other instrument in the name of the obligor are on file in the registry of deeds or registry district for the county or registry district where the obligor owns property without respect to whether the lien or the deed or other instrument was recorded or registered first.
You’ll note that the above language makes no reference to any index. All it requires is that a deed and a notice of lien exist in the registry at the same time, in which case the lien will encumber the grantee’s interest, whenever acquired.
After-acquired property is "caught" by the child support lien. However, there appears to be an error in the amending legislation that makes reference to the old "six" year duration period, and not the ten year period. It is anticipated that this error will be corrected by the legislature.
If your concern is not as to the grantee’s title, but rather the status of a purchase money mortgage from the grantee to a bank, you’ll note, for example, under Revenue Ruling 68-57, that at least with respect to federal tax liens the IRS has stated it will consider a purchase money security interest or mortgage valid under local law and protected from the after-acquired provisions of the Internal Revenue Code with respect to federal tax liens even though the purchase money mortgage may arise after a notice of lien has been filed. There’s no such language in G.L.c. 119A and it appears that this would not be the case with respect to child support liens, because the statute, in making reference to other liens, leaves no room for such an interpretation, and requires the express subordination of the government in such a case. In this regard, the statute provides that “[t]he perfected lien shall not be subordinate to any recorded lien except a lien that has been perfected before the date on which the child support lien was perfected; provided, however, that the IV-D agency may, upon request of the obligor, subordinate the child support lien to a subsequently perfected mortgage.” (Emphasis added.)
Subsection 6 was amended in 1995 but none of the provisions of the amendment affect the subsections discussed above.
1 The IV-D agency is the state agency as designated pursuant to Title IV, Part D of the Social Security Agency.