Is the seller able to hold up closing due to lien on home?

UPDATED: Oct 1, 2022

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Is the seller able to hold up closing due to lien on home?

More details.

We are trying to close on a home in Idaho. The lender is all done and we are
waiting on the title company to clear the title. The sellers found out that there is
a medicaid lien State of Idaho on the house. This is less than the offer price.
They are wanting to delay closing to try and sort this out because the price
increased. Maybe even get an attorney. What are my legal rights as a buyer and
can I do anything about this? We are working with a realtor who is working with
the buyer. The timelines are coming quick. Just wondering if there is anything
legal wise that we can do to speed things up or are we SOL. We know there is
an option possibly to rent until this is cleared up.


Asked on December 14, 2017 under Real Estate Law, Montana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If there is a contract of sale and a contractually agreed upon closing date, you could in theory sue to enforce that: i.e. sue for a court order requiring the seller to go ahead with the sale and/or seeking monetary compensation for any costs or losses a delay causes you (such as if you have to pay to rent someplace else to live and/or store your belongings). Generally, the seller's financial or legal issues are theirs--they do not provide a basis to escape their contractual obligations. So in theory, they would have to sell to you, even if doing so exposes them to liability.
BUT--and this is a large "but"--unlike a simple, unsecured debt, a lien goes with the property. The property should not be sold without paying off the lien and what *should* happen is that the proceeds at closing are used to pay off the lien (then the seller gets whatever is left over). But if for some reason the lien is not properly cleared or paid off before or at closing, you would be stuck owning property with a lien on it; Medicaid (or the state health agency acting on behalf of Medicaid) could then go after *your* home. Even if the problem is just paperwork--e.g. the lien should have been cleared, but there was some omission and error and it was not, but there is no reason to think it will not be once the paperwork is corrected--do you want to be spending your hard-earned money to get a house with a Medicaid lien on it? (And the problem might not be just paperwork: if there is a mortgage on the house, too, or large closing costs to be paid, there might not be enough to pay off the lien.)
Speak to a real estate attorney NOW, with whom you can discuss the situation in detail (e.g. amount of lien, amount offered for home, are there other liens or mortgages that also would have to be paid off, etc.) and follow his/her advice. It is not impossible that the recommendation will be to let the seller know that if they cannot transfer clean title at closing, that you will treat them as being in breach of contract, terminate the contract, and sue them for all costs and losses you incur.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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