If a life estate tenant encumbrances the real property with an equity line of credit or mortgage and defaults, does the remainderman lose the property as being second in line behind the mortgagee?
4 Answers from Attorneys
The mortgage holder takes subject to the remaindermen.
I can't imagine any lender would give a mortgage or line of credit to a life tenant of real property, unless the remainderman also signed the deed of trust.
The holder of the life estate can only encumber what he owns, the life estate. He does not have the power to encumber the remainder interest. Thus very few lenders will make such a loan. Keep in mind that if the life tenant dies, the lender no longer has any security. This gratuitous response does not create an attorney client relationship. The advice provided herein is generic, may not apply to your circumstances and is not to be relied upon in your actions. An attorney client relationship is created only upon execution of an engagement letter hiring me or my firm.
The life tenant should only be able to encumber the life estate. If something else appears to be the case, I'd be concerned that the mortgage was taken through a lender who justifiably believes the life tenant owns absolute title and is therefore BFP - if this is the case you lonely need am attorney. I specialize in real estate and I'd be able to help.
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