Need guidance on structuring a deal-land contract or lease option

Need guidance on structuring a deal-land contract or lease option

Investor · Fridley, MN · Member since 2015 · 108 posts · 25 votes

Have a seller interested in owner financing. Owes $240k with 17-18 years left on a 30 year ARM. I offered him subject-to, with him taking a carrying for $50k. Retail would be around $315k. Yeah, not a whole lot off retail, but this would be basically no money down except closing costs, and would still cash flow about $300 a month, while building $10k a year and growing in equity.

Seller isn't interested in subject-to. He suggested a contract for deed. My understanding is that the contract for deed has the same due on sale clause risks as a subject-to, and gives me less legal protections. Is there a way to structure a CFD for it to work?

Alternatively, would a lease-option work better? I could lock in the current price, no concerns about due on sale, and deferred risk for me. It still cash flows, I have nothing out of pocket, and can eventually purchase the property for less than what the market value would be.

Notes: I have enough cash to do a traditional financing on this, but would not. Putting $75k down for a few hundred a month in cash flow doesn't make sense, plus, I lose the equity gain from being 12 years into a 30 year mortgage. 

@Brian Gibbons

I've read some of your posts, and you seem to be an expert - do you have any advice?

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  • Investor · La Grange, KY · Member since 2016 · 44 posts · 19 votes
    10y

    @David S.  I just did an MLO with similar circumstances, seller didn't want to trigger taxes and she had an amazing fixed rate mortgage for 12 more years that I wanted to leverage. 

    For my MLO I just had to have my real estate attourney email the lender and ask if they had any issues with me leasing the property (there was a weird clause in the mortgage that she couldn't lease the property to anyone even though it was an apartment).

    With an MLO make sure the lease never mentions the option.  If they cross reference, it could be considered by the IRS a sale and all taxes come due immediately.  Also, both the lease and option have to have seperate non cross referenced consideration.  While the deal was 10K at signing, 5K per month, 10K on 1st anniversary the formal payments were 9.5K for ML at signing,  5K per month for lease, 500 at signing for option,10K for option at first anniversary. 

    And make sure you get right to assign the option part at a minimum. It'd be nice to be able to assign the lease but most sellers want to vet who is running their collateral so they won't go for that. By assigning the option you can still sell it down the road without having to hold it for a year to get capital gains vs income tax treatment.

  • Investor · Fridley, MN · Member since 2015 · 108 posts · 25 votes
    10y

    @Allen Hayes Great, thank you for your advice! So I'll need to find an attorney, get copies of the seller's mortgage and other paperwork, and have the attorney draft a lease agreement, and a separate option agreement. 

  • Investor · La Grange, KY · Member since 2016 · 44 posts · 19 votes
    10y

    @David S. Yep.  Remember that everything you'd normally do as an operator has to be thought of at this stage. Insurance is another biggie to agree on.  You aren't the owner so you need to be the also insured on the owners insurance. Who covers what repairs? We assumed liability for all repairs unless they were insurable losses, and if those happened we pay the deductible and she has to file the claim.  Insurance is a pass through expense to us (part of our monthly lease payment) so if we screw around filing claims and our rates go up that passes to us to.  Also, what's the process for structural changes?

    Another big thing is exit clause.  Mine is 3 months notice and we're out.  I love that part because frankly, it's only getting exercised if Armageddon happens and it'd be impossible to sell it but with just three months notice, we're out free and clear of everything.

  • Investor · Fridley, MN · Member since 2015 · 108 posts · 25 votes
    10y

    @Allen Hayes Thanks. I actually was thinking about insurance this morning. So the owner would need to keep his insurance, and I would not pay that directly? Could I even get an insurance policy, or would his mortgage require that he has one?

    So on the lease, I'd write something along the lines of rent of $1800 per month, plus insurance payments?

  • Investor · La Grange, KY · Member since 2016 · 44 posts · 19 votes
    10y

    correct, but you will need to be losted as also insired on his. You can get personal property and professional insurance though. I also habe an umbrella policy just in case. And ours is worded something like that too. We added that we can review and submit changes just in case we find better insurance elsewhere or identify a gap or over coverage.

  • Investor · La Grange, KY · Member since 2016 · 44 posts · 19 votes
    10y

    wow, just so we are clear my phone isnt letting me see what i type until i post so im not normally this bad

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