Have you thought about or are you actively buying or selling a property using a seller financed plan, such as a lease option, land contract or all inclusive deed of trust? If you are, you need to stop and consider the following.
Too many times, a seller financed program doesn’t work out well for the buyer or the seller. Why? Well there are lots of reasons. Here are a few.
- Market conditions change-Especially these days prices are up down and sideways. A price negotiated for an option now maybe totally unfair 2 or 3 years from now. One side or the other may be very unhappy.
- Family situations change. People change jobs and move to another city or change their career goals. Some peoples’ finances fall apart (for whatever reason) and they file for bankruptcy. People get divorced, have more children, or need to care for ill family members. The home they bought or leased optioned from you may not work for them.
- People simply don’t want to stick with the deal they made. Just look at all the houses people don’t want to pay for that were purchased during the last few years and are over encumbered.
- People become unhappy with the home itself. They blame the seller for not telling them about some perceived deficiency or lacking. i.e. –“You didn’t tell me that the roof was old and it will cost thousands of dollars for a new one.”
All of these things are beyond the control of sellers especially, and to a large degree buyers as well. The problem is that being in a seller financed situation can make the seller of a property extremely vulnerable. Why? Because your buyers problems, become your problems. You, Mr. and Mrs. Seller are very vulnerable. The buyer stops making the payments, and you have a mess on your hands.
Buyers too, can find themselves inheriting problems that they didn’t anticipate, but are stuck with. Example- what if the optionor (seller) in a lease option gets a tax lien or judgment and it gets attached to the rental home. The tenant/buyer is stuck with that lien as well. What if the seller goes bankrupt? What if the seller divorces? Buyers need to protect themselves too.
For a seller there is another really big problem that arises way too often. How do you get possession of a property that you have in a land contract or lease option deal, or even an all inclusive deed of trust sale, if they stop making the payments for any reason.
Answer- you must file a judicial foreclosure to affect the return of the property. No, you cannot simply evict the tenant/buyer using normal eviction laws. Eviction laws are very specifically for landlord/tenant situations. Your agreement creates an equity interest for the owner, and as soon as the court is made aware of that, your eviction case will be dismissed and you will need to file a judicial foreclosure case.
Fortunately, we have the answer for this problem.
Whether you are buying or selling a home using a seller financed technique, you need to utilize this plan.
We offer a three step plan that provides a sure fire preventative solution for this vexing problem.
Step 1- The seller deeds the property into a title holding trust- A land trust as it is commonly known. Seller is the beneficiary of the trust and a trustee holds legal and equitable title on behalf of the beneficiaries. (Please look at our other web site pages for more detailed information about land trusts.)
Step 2- Buyer and seller (optionor and optionee) agree on an agreement to purchase the beneficial interest in the trust for whatever terms are agreed upon.
Step 3- New beneficiary rents the property from the trust.
In the event that the new buyer/tenant stops making the payments the trust can file an unlawful detainer action against the tenant. Tenant can be evicted quickly.
So here is what we do.
We will prepare the trust agreement and deed placing the property in the trust.
We will set up the “assignment of beneficial interest agreement” This essentially is the sales agreement.
We will set up and tie in the rental agreement in the required way to make this plan effective.