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maryhm · Nov 30, 2010, 08:33 AM

My friend's husband was within a month of his death of liver cancer. His (domineering) mother had him sign a typewritten second "lean" that she had typed up for $50,000 on the home "in the event the above stated home should be sold". Supposedly this was in exchange for labor that her deceased husband did on the home years ago, although there was never any contract, of course, and no statement of the work he performed. It was signed and notarized in July, her husband died in August, and it was finally recorded at the end of February of the following year ~ once the mother-in-law saw that my friend had listed the house for sale. My friend had no knowledge of this, and (you may have guessed by now) the relationship between mother-in-law and my friend are have always been very strained.

Now someone wants to purchase her home for cash (and she desperately needs to sell - can't afford the mtg payment), but with the discovery of this lien, there is no equity left for her to move on. Is this lien valid and enforceable, or must the MIL prove up that X amount of work was performed?

Any assistance/information/thoughts would be greatly appreciated.

excon · Nov 30, 2010, 08:43 AM

Originally Posted by maryhm

Is this lien valid and enforceable, or must the MIL prove up that X amount of work was performed?

Hello mary:

There are MANY issues at work here. In my view, the first and ONLY grounds your friend may have to quash the lien, would be that the dying husband was TOO FAR GONE to have KNOWN what he was doing. However, if it can be proven that he WAS competent, the lien will remain, and she'll NEVER be required to show anything about the "work".

Notice I used the word "proven" above... That means these issues need to be thrashed out in court. Your friend needs a lawyer.

excon

ebaines · Nov 30, 2010, 01:24 PM

+1 on getting a lawyer to investigate this. There are a whole bunch of things to look into. Placing a lien on a property is a pretty technical exercise, and even a small error in documentation can get it thrown out. (Since the document is about a "lean" that by itself may do the trick!) Actually I think that this document would be a "deed of trust" or a mortgage, not a lien, as it was agreed to by the owner (as oppoosed to being the result of a court judgment or a filing by a licensed contractor or association). Also if the husband's estate was properly probated after his death, and the estate closed before the lien was filed with the county, that could make it invalid as well. So again - have a good real estate lawyer look into it.

AK lawyer · Nov 30, 2010, 04:52 PM

It all depends on how the widow got title to the home. Was it owned jointly by husband and wife? If so, it may be that a lien executed by the dead husband isn't effective without the widow also signing it. While it may be a voluntary lien with respect to the dead husband, it is an involuntary lien with respect to the widow; a mechanic's lien in this case. And it's a safe bet that it doesn't comply with the formalities required of a mechanic's lien.

If she inherited it, what Ebaines says would apply:

Originally Posted by ebaines

... Also if the husband's estate was properly probated after his death, and the estate closed before the lien was filed with the county, that could make it invalid as well. ...

Even if the widow bought it from her husband (very unlikely of course), the fact that the lien wasn't recorded until she had title normally would defeat the lien.