Who are Superior Lien Holders?
Liens on people and property fall into 2 categories: Superior (or Senior) and Junior (although some counties may use different wording). Typically a county will not pay a previous home owner claim for surplus until a Superior Lien holder has been paid. In our experience, this is where the counties differ the most.. their interpretation of the Florida Statutes regarding disbursement of surplus (we discuss the statute in a later chapter)
Here is a list of Superior Lien Holder Types and their descriptions
IRS or Federal Government Liens and City, County, State Liens
First and most superior are Governmental Liens. City, County, State or Federal Liens. These are almost always paid first before anything else happens. These would be items such as Past Due Federal Taxes, Nuisance Liens, Lot Mowing, Unpaid Water bill, etc.
A mortgage on the property does NOT follow the new owner (tax deed auction winner). The previous owner is the one who borrowed the money and they are still the ones who owe it. However, the bank/lender is allowed to put a claim in on any surplus. Since mortgages are typically high $$ and long (many years), most of the time, if the property has a mortgage, there used to be little hope for the previous owner to claim any surplus.
However, NOW with the new Florida Statute, that lender has only 120 to put in a claim or lose out forever.
If you see a sold property has a high surplus, it is often worth it to look in to it a bit. You may find three items which give hope of claiming the surplus:
- The mortgage began decades ago and or the loan amount is small enough that is likely almost paid off
- The lender is a person, not a bank and therefore you can assist that person in claiming the surplus as the lender/lienholder
- The lender is far to busy with all other types of unclaimed property and misses the deadline.
Judgments (against the property or property owner)
These can be anything from an unpaid credit card debt to someone you hit with your car. In other words, if a person or a company brought you to court and won a financial judgment, then that is a lien against you and your property. You can also assist these Judgment holders in claiming the surplus, so don’t ignore records with Judgments. Also, pay attention to the date the Judgment was filed with the county because they expire 10 years after the filed date and if that is the case, they cannot claim the surplus from tax deed auctions.
This would pertain to work done on your home or property that was not paid. A new roof, landscaping, tree removal, a fence, etc. If the work is not paid off, the company can put in a lien against your property.
Home Owners Associations
If you do not pay your HOA payments, the Home Owners Association can put a lien against your property.
You may look at that list and think “Oh well they will certainly take all of the overbid and nothing is left for the previous owner”. Assuming this leads to thousands of missed opportunities. Trust us, we see it every single day. There are records of surplus laying around that others didn’t bother checking. Most counties will put the Book and Page number of the liens so you can always look them up to see the amounts. Also, most of the time, liens to the City or County are small in comparison to the amount of overbid. They will take their portion and there is still plenty left over. So do not assume just because there are liens, that the record is no good.
What you don’t realize is lienholders miss deadlines or do not know about the tax deed auction at all. The way these lien holders are notified of the tax deed surplus is via mail. A certified letter is mailed to the address the county has on record. It may be incorrect, old or they receive so much mail, these notices go…well, unnoticed.
We know this is true because we see the clerk documents, the scanned copies of returned envelopes, the surplus balance still sitting there a year later. The county has fulfilled their duty of mailing the notices, they aren’t going to do any more to find the lien holders (or the previous owners). They do what they can and what was necessary but beyond that, it is really up to Asset Recovery Companies to locate and inform these potential benefactors of the surplus.
The same applies to the notice sent to the previous owner. That person has moved on from the property after the tax deed sale and they never receive the notice. Or, the property address is vacant land they never lived on and a notice mailed to the vacant land address is rarely received.
In today’s age, it’s fairly easy to locate people using only public records. You don’t need special databases or to be a skip tracing pro. Just a computer and common sense.