July 18, 1991
Since our discussion this morning for a method by which to make a lien established under Tennessee Code Annotated, title 13, chapter 21 superior to a mortgage lien, I have fumbled around for a way that such could be best done. I have concluded that both the simplest and ideal solution is to make the lien second in dignity to municipal property tax and assessment liens.
The reason for that is under Tennessee Code Annotated, section 67-5-2101, state, county and municipal property tax lines "shall and become a first lien upon such property from January 1 of the year for which such taxes are assessed." Furthermore, such liens are superior to lines of all other kinds. [See State v. Hill, 87 Tenn. 638, 11 S.W.610 (1889); and Dunn v. Dunn, 99 Tenn. 598, 42 S.W. 259 (1897).] A clean-up lien that followed behind that first lien would also put the former ahead of mortgagees and any other lien holder.
All that solution would require is an amendment to Tennessee Code Annotated, section 13-21-103(6), striking from the first sentence in that provision the language "and any valid lien, right or interest in such property duly reordered or duly perfected by filing, prior to the filing of such notice." and by placing a period after the word "assessments" in the first sentence.
A big question is whether such a solution is legislatively acceptable, although based on your experience with the structure in question it has great merit. For that aspect of your question I suggest that you contact Dennis Huffer, a former MTAS attorney who is now the Tennessee Municipal League's legislative liaison with the Tennessee general Assembly. [He can be reached at the TML Risk Management Pool Offices, at (615) 371-0049.] In fact, with your assent, I would also be glad to talk with him about this matter.
If I can help you further in this or any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant