If a second mortgage was recorded before the first mortgage, which mortgage has priority?
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If a second mortgage was recorded before the first mortgage, which mortgage has priority?
I have a mortgage and a home equity line. Both were signed at the same time The home equity line (second mortgage) was recorded first at the clerk of courts. The mortgage was not recorded until 2 months later. Which is in first position?
Asked on April 13, 2011 under Real Estate Law, Florida
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
For a definitive answer, you should have an attorney review the documentation and circumstances in detail with you. As a general rule of thumb, time of recordation would not affect priority if there were terms in one or both loans stating their respective priority. For example, if the mortgage was denominated a first mortgage and the home equity line of credit a second mortgage, or the HELOC was stated to be subordinate to either first mortgages generally or this mortgage in particular, then then terms setting priority would control and the mortgage would have higher priority. Also if both were with/through the same lender, that lender can, and presumbly, establish the relative priority of its loans.
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