Changes to Due-on-Sale Clause Silently Enacted by Fannie Mae: A Win for Investors

Changes to Due-on-Sale Clause Silently Enacted by Fannie Mae: A Win for Investors

5 min read
Scott Smith

Scott Royal Smith is an asset protection attorney and long-time real estate investor. His law firm, Royal Legal Solutions, helps thousands of real estate investors and entrepreneurs in all 50 states protect more than $1.2 billion in assets. Since 2014, he has published over 1,000 posts and articles on BiggerPockets and has appeared on hundreds of podcasts.

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Scott fell in love with real estate when his commercial property investment allowed him to graduate from Albany Law School debt-free. He immediately began practicing at the trial and appellate court with the district attorney, placing him in the top 1 percent of lawsuit attorneys in the county in terms of professional experiences. He also worked in private practice, suing insurance companies for denying valid claims (which is surprisingly common!).

After his friend lost $3 million in real estate from a single lawsuit, despite having ample insurance, Scott dedicated himself to educating real estate investors on the importance of affordable asset protection, specifically when it comes to folk knowledge and misconceptions that still exist in the investment and legal community. The solutions Scott recommends for his clients are the same ones he originally created for himself and has been refining on his mission to help people protect themselves from frivolous lawsuits.

Follow Scott as he deconstructs the litigation game and shows you how to free your time, protect your assets, and create wealth that lasts for generations.

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Scott regularly appears on shows with folks like Grant Cardone, BiggerPockets, Entrepreneurs on Fire, Wheelbarrow Profits, and his own real estate investing podcast. He frequently interviews industry experts on his Facebook and YouTube accounts and has published thousands of posts and articles on BiggerPockets and his blog for real estate investors.

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Scott graduated from Albany Law in 2014.

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He has passed both the Texas and New York bar exams.

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While changes in law can be slower than Christmas, institutions like lenders and banks can change their regulations far more easily. Sometimes even critical alterations can be made to accounts without your knowledge, because internal rules like this run in the background. So, unless you signed up for the Fannie Mae newsletter and read it closely, it’s highly unlikely you’ve heard the good news. Stay tuned, particularly if you’re a single family investor, for updates regarding the due-on-sale clause.

Frankly, the reason this is flying under the radar is because it’s also legal news. Absent celebrity involvement or story-worthy crime, you’re unlikely to see this kind of legal and financial news in The Economist—even below the fold. So, it’s a good thing you found your way here to BiggerPockets. As of June 2019, this article is actually the first complete piece on this subject at all.

Let’s cut right to how Fannie Mae’s regulations have changed the implications for the due-on-sale clause. These changes (so far) only affect Fannie Mae customers, but it’s possible other lenders or banks will catch on and follow suit. We could be looking at legal changes depending on where the ball goes from there.

Here’s what we know now: Real estate investors should all take note—or at least take this time to brush up on lending practices, property transfers, and due-on-sale trivia and tricks.

What’s Happening With Fannie Mae and Due-on-Sale?

In short, Fannie Mae simply announced some policy changes. The biggest change is that any loan secured after June 1, 2016, does not require the investor to occupy the home for it to be exempt from the due-on-sale clause. This makes owning and transferring investment properties vastly easier for the investor and allows for not only more opportunities and more profit but also some legal fee and structure savings.

Don’t get me wrong. You will still need an entity of some sort for a comprehensive asset protection plan. But where the rubber tends to meet the road is when you start moving the properties into the structure, as mentioned above. Property transfer is what tends to trigger due-on-sale. But if you plan ahead and do things correctly, legally, and with sound advisers on your side, you need not worry about this little clause at all.

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Related: Are You Afraid of the Due on Sale Clause?

What Does the Due-on-Sale Clause Change Mean for Real Estate Investors?

We love to openly, flagrantly mock the due-on-sale clause at my firm, calling it the Bigfoot/Loch Ness Monster of real estate law, the bogeyman, and Bloody Mary. This time, we’ll come out and say it: This mortgage clause is really the Big Bad Wolf. Everyone knows about and fears it, but they certainly can’t tell you what it looks like or its alleged dangers.

Peek around your favorite professional social networks and message boards. You’ll see a whole bunch of due-on-sale TALK, but you’ll never find people describing how their life was ruined by violating the clause. By contrast, you’ll find many a story on BiggerPockets of a life-ruining, or at least nuclear-level inconvenient, real estate lawsuit. Investors who are regular readers of my asset protection work already know that lawsuits can be prevented—so can due-on-sale issues.

You’ve never met victims of this clause, because they don’t exist. If you looked, you’d have a hard time finding someone truly screwed by due-on-sale. Any horror story, especially compelling ones, would either be fake or necessarily involve an AWOL attorney. That’s how difficult it is to get into meaningful trouble over the due-on-sale clause, and we’ve been over the “horrific” worst-case scenario of a letter from the bank. You will survive.

If, however, you’re visiting from the future, thanks for spending your valuable time-traveling minutes to cruise by BiggerPockets and check on us. Now, go tell everyone who’s about to lose money if you wish to use your powers for good. If you wish to use your powers for evil, at least have the courtesy to take it elsewhere!

Why Is Fannie Mae Addressing Due-on-Sale Exemptions?

Like any business, lenders must cater to what customers want. Absent a public statement, we can only deduce or speculate intention.

Investors are attractive targets for lawsuits and companies for the same reason: We tend to have money to spend. Fannie Mae knows due-on-sale clauses are a legitimate struggle industry-wide and also interfere with investors wanting their products.

So, they remind investors to do business with them. They may offer us something we can use or have their ad department whip up a nice and pretty pamphlet geared toward REIs chasing success. It appears there are potentially some products aimed at investors rolling out, which I won’t describe because I don’t work for free. Ever.

Fannie Mae is making a gesture to let us know they’re trying to make lending to LLCs easier. By removing a huge barrier to REI entry/growth, they’re luring us. It’s smart marketing and frankly, a trend investors can dig.

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Related: Fannie Mae & Freddie Mac: Who Are They, Why Do They Exist & How Exactly Do They Work?

What If My Student Loans Came From Fannie Mae? Does That Change Anything?

Some of you may have another Fannie Mae product. Really, it’s likely one: student loans. Or more precisely, the company owns your student loan debt, either because they issued the loan in the first place or they literally bought it.

For a lender, other people’s debt is basically an asset. But we’re guessing if you’re reading this, you may be like most people connected to Fannie Mae. The sole debt you’re likely to walk in with by adulthood is student loan debt, possibly directly from the lender you wish to approach on real estate matters.

But even if you owe Fannie Mae for school, their regulations still apply to you. Barring irresponsibilities like defaulting on prior loans, you should be able to use other financial products from them or any lender. Real estate and small business loans count, and it starts with forms to fill out. You’ll certainly be submitting a new application, and here’s to hoping your finances are more impressive than in the college days.

In fact, most lenders WANT repeat business. Companies as large as Fannie Mae have tons of resources, including sharp marketing departments. Marketing departments love their data and will watch you like a hawk (or better yet, have some robots do it and report back). You can count on the big lenders knowing at least these things:

  • Your financial history with them
  • Your credit score
  • Some financial history pre-dating their records
  • Your lending record, debts, and income information

If you want a product and have a decent record with the bank, student loans shouldn’t interfere.

Avoid Financial & Legal Problems by Understanding Your Mortgage’s Due-on-Sale Clause

You may ask the bank directly about LLCs—but at your own risk. Many investors prefer to have one of the professionals on your real estate dream team do this kind of dirty work for them.

One thing you can do now is continue what you’re up to already. Learn more about the due-on-sale clause, the asset protection entities that you think will work best for you, and more. Keep a massive file (even a collection of bookmarks on a mobile or laptop helps) for reference.

The more informed and educated you are, the more likely you are to select the correct tools for both your budget and lawsuit prevention strategy. Assuming you do, there’s no reason you can’t stay out of trouble—and more importantly, out of court.

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Do you have any follow-up questions for me about the due-on-sale clause and what has changed? 

Ask me in the comment section below. 

Fannie Mae has announced some policy changes that help real estate investors! It seems the financial behemoth is trying to make lending to LLCs easier! Learn about changes to the due-on-sale clause here.