Bernard D'Orazio Creating and Enforcing Judgment Liens on Real Property
The relative ease of beginning a real property execution does not mean this step should be taken in all cases. This article discusses the significant issues to be considered.
December 20, 2021 at 11:00 AM
14 minute read
Real Estate
Judgment enforcement against personal property often is difficult. Enforcement against real property has certain advantages, including that it cannot be moved or hidden, ownership records are public, and it can be quite valuable. Further, enforcement against real property can be simple. The judgment creditor's lawyer signs and delivers a document called an execution to the sheriff, which begins a streamlined process for placing the real property up for sale at a public auction, which can happen in a few months. A court order is not required to sell real property by execution, except if it is the judgment debtor's homestead. See CPLR 5206(e).
The relative ease of beginning a real property execution does not mean this step should be taken in all cases. There are significant issues to be considered, including the expense of advertising the notice of sale four times, CPLR 5236(c), and the potential liability of the judgment creditor and his counsel for the sheriff's poundage on a settlement, which is up to 5%. See CPLR 8012(b)(1)-(2); McCloskey v. Brill, 286 A.D. 143 (1st Dept.) ("It has long been the law of this state that an attorney is liable in a plenary action to the sheriff for fees incident to the execution of a process delivered by the attorney to the sheriff"), affirmed 1 N.Y.2d 755 (1955).
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