Tuesday, January 30, 2018

Surrendering Toxic Real Property in a Bankruptcy

Many people become confused about what it means to ‘surrender’ an asset in a bankruptcy.  It is commonly believed if you surrender a property through a bankruptcy proceeding, somehow you no longer own that property.  The problem is that this is not only wrong, but a dangerous misunderstanding.

Surrendering your rights to a piece of real property through a bankruptcy is merely a statement of your intention regarding that property.  It has no vesting power to the ownership of that property.  You remain title owner of the property and, to some extent, you are liable for post-bankruptcy taxes, HOA dues, and tort actions.
As owner of the property, if someone is injured on the property, you could be exposed to significant liability.  If significant time passes after you file the bankruptcy, then you could be facing a huge HOA assessment including fines! 

A big reason to desire to surrender property through a bankruptcy is because the property is a source of dangerous liability.  Imagine a couple who inadvertently rented their condo to meth manufacturers.  The risk and costs for this poor couple could easily make the property undesirable to retain.  The issue is that the first mortgage holder may not be in a big hurry to foreclose on the property.  It could be years that this toxic property remains in the couple’s name after a bankruptcy.  During that time, they would be liable on the condominium association’s dues.  No one wants to throw good money after bad.

Luckily for this group of individuals, there is an option to force the lender’s hands.  In a Chapter 13 Bankruptcy, the property owner can include special language in the plan that will not only surrender the property, but to actual transfer ownership to the first mortgage holder.  This can be done even in the face of creditor objections in many cases.


If you or someone you know has a toxic property, they should consult with a qualified professional that can explore all that property owner’s options to best resolve their issue.

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