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posted: 9/8/2013 1:00 AM

Property lien is not the first step to collect a debt

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Q. I have a guy that's owed me a few thousand bucks for about five years. I still see him fairly regularly and he always promises to pay me in a few weeks but he never does. I know he owns his house with his wife. Can I just record something against his house?

A. Sorry, not quite that simple. Many problems would be caused if anyone could just "record something" against another person's property.

You will need to file a lawsuit in the county either where the defendant resides or where the transaction occurred. You will need to serve the defendant with a copy of your complaint. And, for the tricky part, you will need to prove to a judge that the money is owed to you.

If you had the foresight to have the debtor sign a note, you are probably in good shape. If this was an oral arrangement, as many of these types of loans are, your task becomes more difficult. In the event the debtor denies owing you the money, how will you prove the obligation?

Presuming you prevail at trial, a judgment will be entered in your favor. You may then record the judgment against the debtor's property. Make sure the debtor is actually an owner in title, as recording a judgment against a property not owned by the debtor would be considered slander of title. The judgment earns interest at 9 percent per annum, is good for seven years and can be revived. The owner of the property will be required to resolve the judgment lien with you if he or she were to sell or refinance the property.

Q. My son was renting a house with three other fellas in a local college town. The lease ran from Aug. 1, 2012, through July 31.

None of the guys were staying past May 15. They were able to sublease the property to a couple who agreed to pay $1,100 per month from May 15 to July 31. They signed a lease we found online. They were to pay the landlord directly. The original rent was a couple hundred dollars more a month, which we would pick up.

The couple never sent a dime to the landlord, who is now sending us threatening letters demanding we pay for the couple's share of the rent. The landlord knew about the sublease and did not object. How can he now demand we pay for someone else's obligation?

A. I'm convinced real estate attorneys in college towns must spend half their time on landlord/tenant issues with college students. The rights and obligations of the landlord and the original tenants are spelled out in the lease. As a general rule, when a sublease occurs, the landlord will not release the original lessee's (tenant's) obligation, especially when only a couple months remain on the lease.

You indicate you obtained a sublease off the Internet. This tells me the landlord was probably not involved in the transaction between the original tenant and the subtenant. Accordingly, the landlord will not be bound by anything in that agreement.

Of course, an informed legal opinion cannot be offered until an attorney reviews the documents. However, my guess is your son and his buddies remain liable to the landlord for the unpaid rent. It is likely, however, that your son and friends have a cause of action against the subtenants.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to or call (847) 359-8983.

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