Also known as:lien theory · lien-theory mortgage · lien theory mortgage
Written by attorneys · grounded in primary & secondary sources — see below
A mortgage doctrine under which the mortgagor retains legal title to the property and the mortgagee holds only a lien as security for the debt. Default alone does not transfer title or the right to possession. The mortgagee must complete foreclosure to obtain ownership or displace the mortgagor.
Sources & Authorities
How it applies
Common Examples
2
Mortgagor Retains Rents After Default
Lily Lopez borrowed from Metro Commercial Finance and granted a mortgage on her downtown storefront. She kept operating her shop on the ground floor and collected rent from subtenants on the upper floors. The jurisdiction follows the lien theory. After Lopez defaulted, Metro began foreclosure but demanded immediate possession and the subtenant rents. Lopez remains entitled to both because she still holds legal title and the incidents of possession until foreclosure is completed.
Lender Cannot Evict Without Foreclosure
Luke Latham granted a mortgage on his office condominium to Peak Rights to secure a loan. After Latham missed three payments, Peak Rights sent notice claiming title and threatening to change the locks and lease the space to a new tenant. The jurisdiction follows the lien theory. No foreclosure action has been filed. Latham may remain in possession and continue operating because the mortgage creates only a lien and title stays with him until foreclosure cuts off his interest.
Select any source to read its text and confirm it supports the definition.
Common Law
Restatements
Casebooks
Study Supplements
Anderson v. Kimbrough741 So.2d 1041 (Miss. Ct. App. 1999)
Common questions
Frequently Asked
4
Who is entitled to possession and rents after default but before foreclosure in a lien theory jurisdiction?+
The mortgagor retains legal title and the right to possession. The mortgage creates only a security lien, so the mortgagee must complete foreclosure before it can displace the owner or collect rents. Default alone gives the mortgagee no present ownership or possessory rights.
Supporting sources
How does lien theory differ from title theory regarding the mortgagee's rights upon default?+
Under lien theory the mortgagor keeps legal title and possession until foreclosure. Under title theory the mortgagee holds legal title from the outset and may assert possession and rents upon default without foreclosure. The jurisdiction's chosen theory controls which party may act immediately.
Supporting sources
Can a mortgagee in a lien theory state use self-help to take possession after default?+
No. The mortgagee holds only a lien and must obtain title through foreclosure before it may evict the mortgagor or terminate leases. Self-help attempts to change locks or redirect rents without a court order or completed foreclosure are improper.
Supporting sources
Does the mortgage language control which theory applies?+
Courts examine the entire instrument. Language granting title upon default may support title or intermediate theory, while explicit statements that the instrument creates only a lien favor lien theory. When the document is ambiguous, background state law determines the governing theory.
Supporting sources
103 Ill. 2d 930, 470 N.E.2d 930Property
…in the severance of the joint tenancy. We find, however, that implicit in Kling and our more recent cases which follow the lien theory of mortgages is the conclusion that a joint tenancy is not severed when one joint tenant executes a mortgage on his interest in the property, since the unity of title has been preserved. As the…