Bryan Ellis Reveals Seven Subject-To Flaws the Gurus Won’t Tell You
November 28th, 2008
Subject-to is an astoundingly powerful tool in the arsenal of smart real estate investors. But while subject-to transactions are 100% legal in most of the United States, there are some legal pitfalls that face novice real estate investors. My own experience as a real estate investor suggest there are 7 key legal issues that must be addressed to keep your subject-to real estate investing activities on legally solid ground:
1. Misrepresentation of Mortgage Terms & Other Liens. Reserve the right to terminate the agreement in the event that the owner fails to disclose all encumbrances against the property along with the terms of those encumbrances. (Remember, all liens become your problem after you accept title to the property.)
2. Misrepresentation of Mortgage Balance. Property owners frequently misrepresent their mortgage balances, albeit usually unintentionally. Since the balance of those mortgages will become your responsibility after closing, reserve the right to adjust the agreement in your favor if the mortgage balances provided to you are inaccurate.
3. Never “Assume” The Debt. The loan you’re taking over in the subject-to transaction almost certainly isn’t even “assumable”, but you should never put language in your contract to suggest that you are assuming it anyway. In fact, you should specifically state that you are NOT assuming the debt from the seller.
4. The Dreaded Due-On-Sale Clause. Be sure to tell the home owner that their mortgage has a due-on-sale clause in it, and because of that the lender has the option to foreclose against the property even if you make all of the payments on time. This isn’t likely - in fact, it’s highly unlikely - but you’re better off to make the disclosure.
5. Stipulate When You’ll Pay Off The Mortgage. Remember to specify an exact date when the mortgage you’re taking over will be paid off. Whether that’s one year or 10 years or all the way at the end of the mortgage, make your contract very clear about how long you can continue to make payments without getting the loan refinanced or paid off.
6. When Do You Begin Payments? Include in your agreement the date when you become responsible for making payments. Generally that will be on the day of closing, but it could be before or after.
7. Attorney Review. Ask your attorney to review your contract with each separate transaction, as subject-to transactions have received some negative publicity which has led to changing laws in a few states. Further, require in writing that the seller have the contract reviewed by their own attorney to avoid any future charge that the seller was misled or pressured into the agreement.
Only a fool would deny that Subject-To transactions can be among the most advantageous forms of creative real estate investing. Just be sure to comply with these pointers to keep yourself out of trouble!
Bryan Ellis is a real estate investment strategist and marketing expert in Atlanta, Georgia. He offers a huge amount of free training at his blog and through the Bryan Ellis Videos website.
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