Subject 2 and/or Lease Option Deals... Are they Illegal?

[kdhastedt]

...and a day without sunshine is like....well, night.

[Doug Pretorius]

I've done exactly ONE subject to deal, and here's how it played out:

1. I called the seller's bank and asked if I could assume the loan. They checked me out and said: "No." (I had no credit history at the time.)
2. The seller and I agreed that instead of doing a formal assumption I would just start making his payments for him and 'cash him out' for the mortgage balance at a later date.
3. I called the bank back and told them I was going to be making the payments on his loan. They said: "OK."

Earth-shaking stuff don't you think? 

[javipa]

I've done exactly ONE subject to deal, and here's how it played out:

1. I called the seller's bank and asked if I could assume the loan. They checked me out and said: "No." (I had no credit history at the time.)
2. The seller and I agreed that instead of doing a formal assumption I would just start making his payments for him and 'cash him out' for the mortgage balance at a later date.
3. I called the bank back and told them I was going to be making the payments on his loan. They said: "OK."

Earth-shaking stuff don't you think? 

Doug, I just re-read your post...

You didn't do a 'sub2' deal here. A "sub2" deal by definition means you've taken  title to the property 'subject to" the existing mortgage; not just taken over payments. 

That said, if the seller deeded the property to you, and you held the deed unrecorded, this would constitute a 'sub2' deal, since there is an effective transfer of the deed. 

The pros of not recording the deed include that the bank can't technically call the loan due (short of a default), even if there is an effective transfer of the title.  The actual recording of the deed gives the bank the option of exercising the due on sale clause.

The cons are that without a formal recording of the deed transfer, the buyer remains liable for any future title defects caused by the seller. To make matters worse, not recording the deed presupposes the buyer didn't secure title insurance either. 

Meantime, the IRS could file a lien against the property seeing that the property is still technically in the seller's name.  The IRS won't know, or care, that the seller has constructively delivered the title of the property to someone else prior.  So, then...it's off to court to prove constructive delivery and prove a time line in order to expunge the lien.

So, taking over a seller's payments without getting the title is not a 'sub2' deal.  I don't know what that is exactly in your case.  However, getting the deed, not recording it, and taking over a seller's payments meets the definition of a 'sub2' transaction.  FWIW

[JR_FL]

Everytime I read someone stating that sub2 deals are illegal, I just want    it is not.  Now I have not done thousands or even 500 like some seminar promoters tought. But the biggie is to be sure it is a deal from the begining.  I was not a fan of wholesaling these out until about a year ago.  Still a little shy and will only do them if I feel the buyer has some skin or something to loose.  But I do see it as a viable business tool.  I did not say business model. It is just a tool.

Most of what has been typed in there is true. If you whip out 6 inches of disclosures or have a seller and buyer write a statement of what is going to happen with this deal or some sort of disclosure like that I can see that you are going to have trouble. Maybe not the deal you are doing, but that model for sure.

Follow David's and Jay's advice and you cannot go wrong in my opinion.

[Roger J]

There is one other problem with not recording the deed, javipa, depending on state laws anyway.  Some states, like NC, are race states, which means it doesn't matter which buyer has the earlier signed deed, only which buyer gets it recorded first.  So by not recording, you run the risk of possibly losing out if someone else gets a signed deed from the seller and records it first.

The basic answer to the question of are Sub2 and Lease Options illegal is check the state laws concerning them.  Over the past several years, many states have (or attempted) to make at least versions of both illegal or damn near impossible to do.

Know your state laws, use the right paperwork and you should have no issues.

[JLondon]

IF you don't record the Deed that property is subject to all and any liens and judgements that the seller gets in the future I.E. Tax liens, credit card judgements ect.  There is "NO WAY" I would take subject to and not record the deed. IF that title gets clouded by sellers action your basically screwed. If your worried about bank finding out then recored it in a trust in the sellers name. Keep things simple guys and quit trying to complicate things.
I've done 15 sub-to's in the last 6 months, half to out of town owners. When we do them at my office I video it and when I send the packet to out of town owners I require everything to be notorized or I will not close the sale. (KISS) keep it simple.
Just my opinion.

[javipa]

Wow, I must doing something right, because I haven't ever had the need to have sellers hand write documents saying they understood sub2, or videotaped Sellers completing documentation in my office, or tried to otherwise make sure the Seller thought that what we were doing was so iffy, illegal, or so odd-ball that the next thing to expect was a lie detector test affirming they were not lying about understanding what we were doing.  The next step would be a blood ceremony I suppose?  Why not just handcuff the Seller to a chair and beat his kneecap to warn him that if he "messes" with us later, Vido will "do" his other knee? 

Videotape?  Really?

[chunkoftheearth]

javipa,
What documents do you have your sellers sign? Did you have them drawn up by a lawyer or are they standard contracts?
Thanks

There's no need for an attorney.  I just have the seller write down that he understands that he is giving me the deed to his house and that I'm taking taking over his loan payments.  He also acknowledges that I will likely begin making his loan payments late every month and lower his credit rating by at least 200 points, and that he's "OK" with that.

Then I have the seller write his bank, informing them of an ownership change, so when they don't respond in a reasonable time, he knows the bank has given him "permission" to assign his loan to me without any further "problems." 

I call it the "KYBG" package.  Yes, it does stand for, "Kiss Your Butt Good Bye." 

I sell it for $997.   

Interesting approach.  It certainly would get more Sub2 deals signed.  I personally have never done a Sub2 without an attorney.

It makes me laugh when people talk about the DOS clause.  Most of the time folks talk about it negatively so to speak is because they just don't do it, therefore it must be illegal.  Bunch of crap!

Jav did say something in response to Kelly Luvs that I didn't understand in reference to having them write something down in their own handwriting.  I too use the approach that Kelly Luvs uses to a certain extent.  Only difference is the note or letter if you will basically says that they have been already informed of their write to have an attorney review thing beforehand if they wish.  Or, in writing (1 sentence), they can waive that.

Jav, I can't speak for Kelly, but I can tell you I use it because there have actually been court cases in my jurisdiction where judges have ruled against the investor simply because the homeowner didn't have something in their own handwriting.  That's the thing I think most often people forget.  I doesn't matter what anyone says because in the off chance that you end up in court, a judge will come up with their own interpretations of things.  And that is binding.

So again, it's a jurisdiction thing really.  If you don't have to in your area, fine.  I didn't have too have that for the longest time and did deals like you do without the handwriting from the owner.  But because of recent rulings against other local investors I've modified slightly how I do Sub2.  Still do them, just slightly different than before.  No big deal.

Someone asked you Jav what docs you use for the Sub2, and I didn't hear you say you use a purchase agreement and the rest of it (i.e Power Of Attorney).  Maybe I heard wrong.  But if that was in fact what I read, legally speaking if you got taken to court for whatever reason could they argue that you don't have something contractually without a purchase agreement or Power Of Attorney?  I'm not an attorney myself, but doesn't a contract with ANYONE consist of an offer, consideration and acceptance like with a purchase agreement?

I'm not slammin' ya.  If it works, great.  But I'm wondering if this type of Sub2 style that you use has actually been held up in court. 

Also what happens Jav if the bank for example doesn't give the seller permission for you to take over the payments and to give you ownership?  Have you ever had a bank say "no"?  Don't they want you to qualify prior to handing over ownership like that? 

Talk about slowing a deal down.  I need the bank to give the seller permission to allow me to take over the payments and ownership?  Yeah right man! 

A lot of the things we are talking about in this thread is jurisdictional.  What works for one part of the world, may have to be modified for another part.  Not sure why Jav though insists on knocking Kelly or others for the way they do it if it works for them.  If it works, who cares???

So when you see an investor who needs to get something in the homeowner's handwriting, take the question a step further rather than just respond.  You're a smart guy, lots of intelligent things to say, but at times I don't understand why you'd comment about how they do it.  If it gets their deals done in their areas, who cares!!  A lot of times I disagree with Jav a) because he either hasn't told us his way has been tested by him in court or b) might be a 1990's style of doing things which may not be so applicable to 2012 or c) Jav's lack of understanding that what works for him in Cali, may not work the same elsewhere.

[chunkoftheearth]

[/quote]

  He also acknowledges that I will likely begin making his loan payments late every month and lower his credit rating by at least 200 points, and that he's "OK" with that.

[/quote]

Question: Jav, why are you likely to begin making the loan payments late every month?  Why take over something if you only going to make it late EVERY MONTH?  And the person's credit rating will be lowered by 200 points!!?  Where do you find these retards?

But the most important question is why do you do this?  Trying to understand your reasoning.

Look, good on you for doing what you do.  I take what you do in good humor, honestly.  But when you make statement in your Sub2 about a homeowner's credit rating being lowered by 200 points at least, it leaves some of us to question whether you even know what you are doing!

So you probably make millions every year, and good on you for doing that.  But the question is if you did things better, could you make more?  Have a seller's credit rating sink 200 points possibly is a ridiculous way of doing business!!

Most of my leads come by way of referrals these days.  I can tell you for sure if I made it a habit of putting that kind of language in any of my paperwork, NO homeowner would refer my business!  Guaranteed.

I mean, how do you know their credit rating won't sink by 500 points?  What's your contingency then?  Maybe it's not so wise to give a ball park because although it hasn't bit you yet, it's makes no sense to put yourself out there like that.  When you make statements like you do here you sound dilusional, and like you don't give a damn about how your business is runned.   

[javipa]

javipa,
What documents do you have your sellers sign? Did you have them drawn up by a lawyer or are they standard contracts?
Thanks

There's no need for an attorney.  I just have the seller write down that he understands that he is giving me the deed to his house and that I'm taking taking over his loan payments.  He also acknowledges that I will likely begin making his loan payments late every month and lower his credit rating by at least 200 points, and that he's "OK" with that.

Then I have the seller write his bank, informing them of an ownership change, so when they don't respond in a reasonable time, he knows the bank has given him "permission" to assign his loan to me without any further "problems." 

I call it the "KYBG" package.  Yes, it does stand for, "Kiss Your Butt Good Bye." 

I sell it for $997.   

Interesting approach.  It certainly would get more Sub2 deals signed.  I personally have never done a Sub2 without an attorney.

I was joking!!! 

[chunkoftheearth]

LOL...ok, you got me on that one.

But I don't think you were joking about the fact some investors get the sellers to hand write this or that.  But then again, you could have me there too.   

[javipa]

LOL...ok, you got me on that one.

But I don't think you were joking about the fact some investors get the sellers to hand write this or that.  But then again, you could have me there too.   

[belly laugh...]

Yes, I was making fun over what somebody suggested we do with each seller, such as hand writing an affidavit and/or videotaping the closing session...

I have never done any of that before.  However, evidently someones teaching this method of Sub2 closings and I can only believe they have the worst sales and negotiation scripts ever... that would require this.  I mean the worst.

Attorneys will scare the crap out of everyone.  If I tell a seller to show up at my attorney's office to close, all of the sudden my seller thinks he needs an attorney ...and of course he can't afford an attorney, and now he's scared because he thinks he needs an attorney, but doesn't have one ...and will now come up with about any reason whatsoever to not close ...even if it means screwing himself.

That said, I'm all for using an attorney to draw up the paperwork, but not involve my sellers directly with him.  And I don't use the "A" word in front of any sellers. 

Hope that clears things up.

Sorry for the confusion.  My humor is often too dry...

[chunkoftheearth]

Hahaha................

Alright, now lets argue about something else.

This thread has had its day.

[Real Estate Seller]

 I agree lets argue about who can buy a million dollar home with no money down, no closing cost, no appraisal fee. Come on I know someone have read theses books that teach you how to do this all they need is $995 for the book.

[javipa]

I agree lets argue about who can buy a million dollar home with no money down, no closing cost, no appraisal fee. Come on I know someone have read theses books that teach you how to do this all they need is $995 for the book.

You can have it for $697 which includes unlimited coaching...