Protective payments: Overview, definition, and example
What are protective payments?
Protective payments refer to payments made to preserve or safeguard an asset, investment, or legal interest. These payments are typically made when a party needs to cover certain obligations to prevent defaults, losses, or adverse legal consequences. Protective payments often arise in financial transactions, real estate, and secured lending arrangements.
For example, if a borrower fails to pay property taxes on a mortgaged property, the lender may make a protective payment to cover the taxes and prevent a lien from being placed on the property.
Why are protective payments important?
Protective payments are essential because they help protect financial and legal interests, ensuring that an asset or obligation remains in good standing. They prevent defaults, legal disputes, or the loss of collateral due to non-payment of critical obligations.
For businesses and lenders, protective payments serve as a risk management tool, allowing them to step in when necessary to safeguard investments or secured interests. They also provide a mechanism for recovering costs from the responsible party later.
Understanding protective payments through an example
Imagine a bank provides a mortgage loan for a commercial property. The loan agreement requires the borrower to pay property taxes and insurance premiums. If the borrower fails to pay, the bank may step in and make protective payments to cover these expenses, ensuring that the property remains free from tax liens and continues to be insured. The borrower would then be responsible for reimbursing the bank.
In another case, an investor finances a construction project, and the contractor is responsible for paying subcontractors. If the contractor fails to pay, the investor might make a protective payment to ensure work continues and the project is not delayed due to unpaid subcontractors.
An example of a protective payments clause
Here’s how a clause like this might appear in a contract:
“If the Borrower fails to make any required payments related to the maintenance, insurance, or taxation of the Secured Property, the Lender may, at its discretion, make such payments on behalf of the Borrower as Protective Payments. Any amounts paid by the Lender shall be reimbursed by the Borrower and shall bear interest at the rate specified in this Agreement.”
Conclusion
Protective payments ensure that critical financial obligations are met to safeguard an asset, investment, or legal interest. They are commonly used in lending, real estate, and financial agreements to prevent defaults and maintain compliance with contractual obligations. Businesses and lenders rely on protective payments as a risk management tool, ensuring stability and continuity in financial transactions.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.