How to Ensure Marketable Title from a Receiver Sale
- Jun 23, 2012
Many purchasers of multifamily properties have sought to acquire either individual properties or a portfolio of properties by means of a receiver’s sale. While lenders have frequently used a receiver to sell property pre-foreclosure, purchasing property from a receiver requires additional due diligence on the part of a buyer to ensure the acquisition of marketable and insurable title.
For example, when acquiring a multifamily property from a receiver, a prospective purchaser should confirm that all statutory requirements with respect to the receiver sale have been complied with and that the contract of sale with the receiver should clearly state that the multifamily property is being sold “free and clear” of all existing liens and encumbrances.
In New Jersey, N.J.S.A. 14A:14-7, provides that upon appointment by a court, a receiver has the power to sell property at a public or private sale upon terms and conditions approved by the court. This statute requires notice to holders of encumbrances affecting the property and requires a demonstration by the receiver to the court that the sale of the property will reasonably benefit the general creditors without adversely affecting the interests of other encumbrance holders.
Similarly, N.J.S.A 2A:50-31 provides for a sale pending foreclosure pursuant to a receiver sale. While this statute differs slightly from the previous one, the sale authority is clearly granted and both operate in the same manner. Only with statutory compliance may a purchased be assured it has acquired marketable and insurable title to the property.
When conducting due diligence for a multifamily purchase from a receiver, a prospective purchaser should (i) examine and satisfy itself that the receiver has properly made application to the court for leave and authorization to sell the property “free and clear” of liens and encumbrances; (ii) that the court has approved the sale price and the terms of the sale (including the “free and clear” provision); (iii) that proper notice has been provided by the receiver to all lien holders, mortgagees and/or other holders of encumbrances secured against the property; (iv) that the receiver has demonstrated to the court that the “free and clear” sale of the property will generally benefit the creditors of the defendant debtor; and (v) that the sale “free and clear” will not adversely affect the interests of other encumbrance holders.
While the asset will be sold “free and clear” of all liens and encumbrances pursuant to court authorization, the sale proceeds will be deposited into court and will still be subject to the liens and encumbrances in place at the time of the sale. Funds left with the court will be fought over by the lien holders. The priority of the liens should not be affected by the sale or the deposit of the sale proceeds into court.
In other words, the court must specifically order that the sale will be made free of any liens or encumbrances. The court must also approve the sale conditions and terms—all through the use of the receiver. The court must ensure that all lien holders and/or mortgagees are protected throughout the procedure. In the event the court and/or the receiver neglect to specify that the sale of the asset is “free and clear” of liens and encumbrances, the property may pass to the buyer/bidder subject to the existing liens and encumbrances.
Moreover, a scenario is possible where one or more lien holders and/or mortgagees objects to the receiver’s sale of the property “free and clear” of liens and encumbrances and appeals the court decision. This would then create another obstacle and uncertainty over the entire transaction.
Accordingly while the purchase of a multi-family property from a receiver can be an expedited means to obtain the asset, unless the statutory provisions are followed and the contract of sale with the receiver contains specific language that the property is to be sold “free and clear” of all liens and encumbrances, a purchaser is assuming unnecessary title risks and could end up acquiring the asset subject to existing liens and encumbrances.
Therefore, it is incumbent upon a purchaser to ensure compliance with all statutory provisions regarding a receiver sale and to work with a receiver so that they may acquire title “free and clear” of all liens and encumbrances.
Acquiring multifamily properties which may be subject to existing tenancies is risky enough without adding title concerns. Only through diligent efforts to ensure statutory compliance of a receiver sale may a purchaser satisfy itself that it has acquired marketable and insurable title to the asset.
Khoren Bandazian is counsel in the real estate practice at Brach Eichler, a law firm based in Roseland, NJ.