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3 Keys to Seller-Financing: Key #2: What documents do I need?



In my previous four posts, I covered the three main ways to structure a deal with seller involvement. Each of those has their own unique set of documents. In this post, I will briefly explain what is needed.

In a traditional seller-financing deal (notes and deeds), you should always start off with a seller-financing specific purchase agreement, especially when there is an underlying mortgage in place. A typical state-approved REPC and certainly a simple 1- or 2-page purchase contract are not sufficient to cover the disclosures and terms needed in these deals. Sellers will come back and claim that they never sold the property, or that the mortgage was to be paid off, or, in the worst case, the note is called due. Having a really good contract that covers these possibilities is critical. If you are going to invest in these kinds of deals, you should work with an attorney or invest in seller-financing specific documents.

You’ll also need a promissory note (loan agreement) and trust deed (mortgage). The type of note and deed depend on the type of traditional seller-financing you’re doing. You should also get a power of attorney or borrower’s authorization so you can speak with the bank if necessary down the road. An authorization to speak with the seller’s insurance agent can be helpful.

In a lease option scenario, you’ll need a master lease, which is one that provides you the ability to sublet the house. You’ll need a good tenant lease agreement for your tenants. This can be the same one you use on typical rental properties. You’ll need an option agreement. When you’re leasing the house from the seller, you can put the option agreement in the same document as the lease.  When you’re leasing to your tenant, they should be in separate documents. You’ll also need to assign the option to your tenant/buyer if they also plan on eventually purchasing the home. How these documents work together can get a little complicated. So, you should study up if you’re going to do lease options.

3 Keys to Seller-Financing: Key #1 Part 4: What kind of deal is it?



This final part of Key #1 discusses the contract for deed. As previously discussed, in traditional seller-financing, the investor takes ownership of the property. In a lease option, the seller retains ownership of the property. A contract for deed falls somewhere in between.

With a contract for deed, the seller retains “legal” title to the property. On county land records they will show up as the owner. The buyer gets “equitable” title to the property. This is the same as ownership and it’s not a tenancy like a lease agreement. The buyer gets partial ownership in the house, shared with the seller.

A contract for deed is an installment contract, just like you get when you buy a car with bank financing. The bank actually owns the car and keeps possession of the certificate of title, while the buyer gets to use the car. The buyer makes monthly payments and at the end of the contract, the bank transfers title to the buyer and mails the certificate.

In a contract for deed on real property, the seller keeps and owns the title while the buyer gets to use and occupy the property. The buyer makes some monthly payment and at the end of the contract, then the seller transfers legal ownership to the buyer by recording a transfer deed.

Even though the buyer does not own the house, she does own the equity growth. So, she does have more rights to the property than in a lease option, but not as many rights as she would get in traditional seller-financing deals.

3 Keys to Seller-Financing: Key #1 Part 3: What kind of deal is it?



Last week we talked about traditional seller-financing scenarios. In those cases, the buyer actually bought and owned the property while the seller became a lender. Lease options are the exact opposite. The seller retains ownership of the property and become a landlord.

Firstly, sellers will need to be comfortable with becoming a landlord. But once that hurdle is overcome, these are great deals. It starts with the seller signing a master lease with the investor. A master lease is one where the tenant (in this case, the investor) can “sub-lease” the property to a standard tenant in a standard lease who will actually occupy the home. Normally, there is a spread in the monthly rent where the investor is making some cash flow.

This takes responsibility for maintaining the property off the hands of the seller, which is the reason most sellers go for this deal. It also provides some cash flow to them, and may defer taxes in some situations.

The second half of this deal is the option to purchase. The option agreement gives the investor the right, through an option fee, to purchase the home sometime in the future. This can lock down a good price in an appreciating market.

A lease option “sandwich” is a deal where once the investor has a master lease and option, he then subleases the property and assigns the option agreement to the tenant/future buyer. Often the investor collects a bigger option fee than he paid to the seller, so he gets cash now in addition to the rent cash flow.

3 Keys to Seller-Financing: Key #1 Part 2: What kind of deal is it?



Last week we discussed a situation in which an investor partners with the seller on the project, which is one way to have the seller help “finance” the deal. In this blog, I’m going to explain what I call “Traditional” seller-financing because it’s the more common way to structure seller-financing deals.

 Traditional seller-financing is any situation where the investor actually buys the house and takes ownership through a closing. Then, in some way, the seller is helping to finance that purchase. I break traditional seller-financing into 3 sub-categories. Note: These descriptions are how I speak about them. Other investors may use different terminology. I separate them because, structurally, they are different.

The important point to distinguish traditional seller-financing from the others is that the buyer will actually own the property! And, anytime a mortgage is staying in place, there will be due on sale clause risks.

  • True Seller-Financing: This is a deal in which the seller owns the property outright with no mortgage. In this situation, the seller simply becomes a bank and “carries” a note and deed (mortgage) by exchanging his equity for the promissory note. The money doesn’t change hands as it’s all on paper. The seller earns some extra money on the interest. The investor gets a better rate than other lenders. All you need is a good contract and then a good note and trust deed. Since there is no underlying mortgage, there is no due on sale clause issues.
  • Subject-to Seller-Financing: In this deal, there is an underlying mortgage that the investor is simply taking over. Think a loan assumption but without the bank’s involvement. The seller either has no equity or is cashed-out of her equity at closing. So, there is nothing left owing to her. The investor can obligate himself through the contract to make the monthly payments or through an all-inclusive note and deed (“AITD”) that mirrors the terms of the underlying mortgage. This AITD, while optional, is a cleaner way to structure this deal and provides the seller extra security that you’ll make the mortgage payment. The seller could foreclose on the AITD to take the property before the mortgage bank even finds out.
  • All-Inclusive or “Wrap” Seller-Financing: In this deal, the seller is financing an amount that is greater than the balance on the underlying mortgage. So, she’s helping finance some of her equity in the house. Because she is owed money after the closing, this deal always requires an all-inclusive note and deed or AITD. An AITD is a mortgage that “wraps” around the underlying one. So, let’s say the seller is financing $150,000 with an underlying mortgage balance of $135,000. The investor makes payment on the $150K note to the seller; and the seller makes the payment on the underlying mortgage payment, keeping the spread. At payoff of the AITD, the underlying mortgage must be paid off first (that’s the “wrap” part) and anything left over goes to the seller’s balance on the AITD.
You’ll see, that in each of the above three methods, the investor buys the house and the seller somehow “loans” money for part or all of the purchase. Next week we’ll cover the contract for deed.

For more information, please see my website link below!

Jeffrey S. Breglio, Esq.
Breglio Law Office and REI Mastery U
(801) 560-2180