Monday, March 2, 2009


WHY USE "SUBJECT TO" TRANSACTIONS? There are a number of reasons why "subject to" real estate transactions are attractive to real estate investors and make economic sense, whether the investor's goal is to acquire rental properties or to rehab and sell fixer upper properties.. These attractions include most significantly:
(1) The purchaser may be required to pay little or no down payment to close the purchase.
(2) Since the purchaser need not go through a loan application and approval process, there is no limit to many properties an investor can buy.
(3) Subject to loans stay in the seller's name are not on the purchaser's credit, and the purchaser is not personally liable on the loan, although record title transfers to the purchaser.
WHAT ARE THE PITFALLS AND RISKS OF "SUBJECT TO" TRANSACTIONS? There are a number of inherent risks and dangers associated with purchasing real estate pursuant to a "subject to" transaction. Among these risks are the following:
(1) Subject to sellers may be in serious arrears in their mortgage payments and may owe significant unpaid principal payments, large sums of unpaid accrued interest and/or penalties.
(2) Subject to sellers may be in foreclosure or on the brink of the commencement of foreclosure proceedings. Once a property goes into the foreclosure process, it may be either (A) impossible to stop the foreclosure without refinancing the loan or (B) more expensive to bring the loan back into good standing because of advertising and legal costs incurred by the lender.
(3) Subject to sellers may be in bankruptcy or end up in bankruptcy between the date of contract signing and closing. Once a seller is in bankruptcy, NO conveyance of the subject to property can be made without the approval of the U.S. Bankruptcy Court. Unapproved transfer of title may be set aside by the Bankruptcy Court without any assurance of compensation to the investor who may have paid delinquent amounts owed on the existing mortgage.
(4) Subject to sellers may have numerous judgment liens, tax liens, and other liens that attach to the subject to property.
(5) Conventional mortgage loans contain "due on sale" clauses and, if the mortgage lender learns that the seller has transferred title to the property, there is a very real risk that the lender will call the loan and/or commence foreclosure proceedings. Therefore, (A) monies paid by the purchaser to bring the loan current may be lost and (B) the purchaser may be faced with the need to refinance the property on an emergency timeframe.
(6) Subject to sellers with financial problems may have purchased or refinanced the property with less conventional lenders and the loans may have prepayment penalty provisions which may not be discovered except by reviewing the recorded deed of trust or by securing a pay off statement.
(7) If the purchaser acquires the subject to property for less than fair market value, other unpaid creditors of the sellers may attack the transfer if the seller subsequently files for bankruptcy protection.
(8) Many subject to sellers are unsophisticated and may claim that they did not understand (A) that their credit was to remain tied up by the existing mortgage loan and/or (B) that they could be liable for mortgage payments should the purchaser fail to make such payments.
(1) Independently Confirm the Mortgage Status. Do NOT rely on the seller's representations as to the status of the existing mortgage on the property. Subject to purchasers or their legal counsel should ALWAYS obtain a written statement from the mortgage lender confirming the payment status of the loan. This can take the form of a payoff statement - which will reflect escrow deficiencies and prepayment penalty amounts - or other written account summary.
(2) Obtain a Title Commitment from an Experienced and Reputable Title Insurance Company. Because many subject to transaction sellers are in precarious financial condition, it is crucial that a title exam be conducted to identify (A) all mortgages that attach to the property, (B) any state or federal tax liens that may attach to the property, and (C) any other judgment liens that may attach to the property. This latter category of judgments can relate to unpaid medical bills, defaulted credit card accounts, unpaid utility bills, or even delinquent child support payments.
(3) Independently Confirm that the Seller Has Not Filed for Bankruptcy Protection. Do NOT rely on the seller's representations that he/she has not filed for Bankruptcy protection, particularly since creditors can put a debtor into involuntary bankruptcy. A purchase should NEVER make payments to bring a mortgage loan current without first verifying that the seller is not in bankruptcy. If such payments are made and the seller is in bankruptcy (or thereafter goes into bankruptcy), the purchaser will be an unsecured lender seeking payment from a seller that may have no ability to make repayment
(4) Have a Contingency Plan to Deal with Due on Sale Clauses. While many "subject to" purchasers use seller transfers to (A) land trusts where the purchaser is the actual beneficiary or (B) limited liability companies ("LLC") where the seller is the only member and then transfer the membership interest to the purchaser to attempt to avoid the mortgage lender's right to call the loan, these precautions are NOT a guaranty against a loan being called should a lender discover the transfer of title. Some lenders apply the prohibition against the transfer of any interest in the mortgaged property VERY, VERY strictly. Therefore, a transfer to a land trust or LLC (which by law constitute a separate legal "person" distinct from the seller) will sometimes trigger the due on sale clause, if discovered by the lender. Similarly, if a more lenient lender inadvertently learns that the real beneficiary of the trust or the ownership of the LLC has changed to someone other than the seller, then a mandatory call of the loan may also occur.
Because of this latent risk, a subject to purchaser should ALWAYS have a contingency plan as to how the property can be refinanced if the mortgage lender learns of the transfer of title and calls the loan. A subject to purchaser should also be mindful that even if he/she is not liable on the mortgage loan, if a foreclosure occurs and a deficiency judgment is entered against the subject to seller, the seller may attempt to recover the amount of the deficiency from the purchaser based on the purchaser's contractual agreement with the seller to pay the balance of the loan.
(5) Utilize a Purchase Contract that Affords the Purchaser Numerous Rights of Termination. Because it is often only after a purchase contract is signed that a purchaser is able to commence his/her due diligence investigation, the purchase contract should afford the purchaser the ability to terminate the contract should the due diligence investigation disclose additional judgments, liens, bankruptcy proceedings, etc. NOTE: Included in the handouts is a sample contract form.
(6) Give the "Subject To" Seller an Opportunity to Consult Legal Counsel. Often subject to purchasers act in haste to secure the seller's signature on the purchase contract in order to "beat out the competition." The danger in this approach is that the seller may later claim he/she was mislead and/or misunderstood the details of the transaction. A court would very possibly defer to the unsophisticated seller as opposed to an experienced investor.
(7) Remember that "Sometimes, No Deal is Better Than a Bad Deal." Too many investors rush to buy a property without adequately verifying delinquent mortgage payments, the existence of other liens, actual rehab costs and/or whether or not the seller has sought bankruptcy protection in a case that is not yet closed or dismissed. Properly investigating ALL relevant facts can avoid monetary loss and headaches.
(8) Purchase Proper Insurance Coverage: Remember that insurance naming the seller as the insured does NOT cover you as the subject to purchaser. Therefore, be sure to obtain hazard insurance naming your as the owner/insured. In situations where the property will be vacant and under significant rehab, a builder's risk policy should be used in stead of a homeowner policy.

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