Attachment
In the legal and real estate context, an attachment is a court-ordered seizure of specific property, real or personal, to secure a judgment or debt. It is a preliminary legal step often taken at the beginning of or during a lawsuit, essentially “freezing” the assets of a defendant. This ensures that if the plaintiff (the person suing) wins the case, there will be assets available to satisfy the court’s judgment. It transforms an unsecured claim into a secured one by placing a hold on the property.
Purpose and Function
The primary purpose of an attachment is to prevent a defendant from disposing of, hiding, or devaluing their assets while a legal case is pending.
- Securing Future Payment: Its core function is to safeguard the plaintiff’s potential recovery. Without an attachment, a defendant facing a likely loss in court might sell their real estate or transfer funds to avoid paying the judgment.
- Establishing Priority: It establishes a specific date of lien priority. If multiple creditors chase the same debtor, the attachment can give the attaching creditor a superior claim over others who file liens later.
- Compelling Action: The existence of an attachment on a property puts significant pressure on the owner. It often encourages them to settle the dispute or pay the debt quickly to regain control over their asset.
How It Is Used
The process of attachment is strictly regulated to protect property rights, and typically involves several procedural steps.
- Court Order (Writ of Attachment): A creditor must file a motion with the court demonstrating a high likelihood of winning their case and a risk that the defendant will dissipate assets. If the court agrees, it issues a “Writ of Attachment.”
- Recording the Lien: For real estate, this writ is recorded in the county public records where the property is located. This creates a visible “cloud” on the title, alerting anyone who looks at the records that the property is subject to pending litigation.
- Sheriff’s Levy: In some cases, a sheriff may physically seize the items. For real estate, the recording of the document serves as the “seizure,” preventing the transfer of clear title.
Importance in Real Estate Transactions
An attachment is a critical encumbrance that effectively paralyzes a property owner’s ability to transact freely.
- Blocking Sales and Refinancing: Because the attachment acts as a lien, the property cannot be sold or refinanced with a “clean” title until the attachment is released. Title insurance companies will not issue a standard policy without excepting the attachment, which effectively stops most sales in their tracks.
- Seller’s Obligation: If a seller has an attachment on their property, they must typically pay off the underlying debt or post a cash bond to the court to have the attachment released before closing.
Buyer’s Risk: For a buyer, discovering an attachment during the title search is a major red flag. It indicates active legal trouble and ensures that the property cannot be transferred until the legal dispute is resolved or the debt is satisfied.
