Is this Partnership "Illegal"?

Is this Partnership "Illegal"?

Hartford, WI · Member since 2016 · 162 posts · 50 votes

Hello BP,

I am currently looking at trying to buy a duplex to try out the renting game and see how it goes.  Currently in my area duplexes are way overpriced.  Instead I am look a few hours away from where I live at areas that are much more reasonable.  I happen to have a brother that lives in an area that I found a decently priced duplex.  Here is the plan that I was thinking, and I'm not sure if it would be considered illegal or get me in trouble in some way.  So after talking with my bank, an owner occupied duplex I can do as low as 5% down, however a non owner occupied is 20%.  After talking with my brother he would like to move out of his apartment into something a bit bigger and this duplex I found fits the bill.  As far as financing, my plan was to co-sign on a loan for an owner occupied duplex where my brother would be the "owner", this way we can do the 5% down.  I would take care of paying the mortgage and expenses.  

In reality, this partnership that we have would be me providing all the money and he provides a signature so we can get the 5% down. His name would be on the title and everything, but ideally after a year or so, he would get taken off the loan. Either transferring to an LLC or just removing him in some way to transfer everything over to my name.

Is there anything wrong with this plan?  The biggest reason for me to do it this way is it allows me to keep a much larger reserve of cash available if something happens.  If I pay the 20% down then its about $12k more than the 5%.

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Rental Property Investor · TN · Member since 2018 · 2k+ posts · 2k+ votes
7y

Two things you may want to consider:

1.  If he has his name on this loan and in the future he wants to buy a house he will no longer qualify for the 'first homebuyer' types of programs which can have great benefits in many places.  Some have a 3% down requirement and very low interest.  So your brother could loose out personally by helping you.

2.  If your brother's name is on the paperwork as say 1/2 owner, then that is what he legally is.  If you pass away, he is still half owner.  Your heirs get the other half.  Are you married or have kids?  Would your brother work as well with your wife, kids, baby mamas, or claim that half ownership, leaving them with all the bills and 1/2 ownership.  What if your brother gets in a situation, maybe a car accident, and gets a judgement, do you know 1/2 your duplex is at risk?  Do you want to buy out his half as part of his judgement?  Probably not since its your money, but with him having 1/2 ownership that is what would happen.   Or, conversely, what if you are injured and can not pay anything, and the duplex is at risk of foreclosure, does your brother want that on his record, or can he cover the mortgage if needed. Is this still true if there is damage to the other half of the duplex and it is not rented for 6 months as it is rebuilt.  Do you have a 6 month emergency fund that covers all your bills, by itself alone?  Are you deeding the property so it transfers to each other after one death, or is it to transfer to you or your heirs?

If you do this with your brother you two should have a written agreement that includes a discussion of these issues and also what would happen after your or his death or injury.

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  • Colleen F.Pro Member
    Investor · Narragansett, RI · Member since 2013 · 8k+ posts · 4k+ votes
    7y

    If he gets an owner occupied mortgage and lives there that is legal. There are two separate things to consider the title and the loan.   I believe both your names would go on the house title and on the loan as well.  You would have to apply together for the loan if you want your finances to count. 

    However, a transfer to an LLC of the title would make the due on sale clause in the loan come in to play. The bank could call the loan when you do that. You can't transfer a loan. That used to be assuming the loan but most loans are no longer assumable. It might be that your best bet for this one is to go partners with your brother and spell out the ownership interests, family can be funny. Alternately bite the bullet and buy it on your own.

  • Real Estate Investor · Burlington, VT · Member since 2010 · 2k+ posts · 1k+ votes
    7y

    @Jared Baker  Agree with Colleen's comments above, nothing illegal on it.  You're both on the loan and he's living in the property.  

    Regarding the LLC, what the reasoning behind wanting to do that? Transferring may cause the bank to call the loan due, although whether that would actually happen is debatable.

  • Hartford, WI · Member since 2016 · 162 posts · 50 votes
    7y

    @Colleen F. @Tom S.  Thanks for the info!  The reason that I would want to transfer it is to remove my brother from the burden.  If after a year he decides he wants to go buy a house, being on this loan with me could make it harder for him to get financing.

    Is there a way to remove him from the loan?  Based on the price of the property I can afford the payments on my own, however, as mentioned above, if I buy it myself and have to put the 20% down I will significantly reduce me available cash if unexpected repairs come up.  Would a refinance be an option to remove him from the loan?

  • New to Real Estate · Worcester County, MA · Member since 2019 · 6 posts · 1 vote
    7y

    I also had this idea and posted about it just last night. My other question is advice on how to make it worth my brother's time. Is free rent enough? How to split profit?

    Www.Biggerpockets.com/forums/12/topics/666957-multifamily-investing-with-your-family

  • Hartford, WI · Member since 2016 · 162 posts · 50 votes
    7y

    @Samer JaberThe arrangement that I made with my brother was that he would get a slightly discounted rent.  So he gets a larger space, which he wants, and in return he gets a discounted rent(Should be enough to cover the monthly payment plus some expenses).  He will also be kind of a manager of sorts, so he would make sure the driveway is shoveled and help mediate if the other tenant has issues, which he already said he was okay with.  We wouldn't split any "profit" as in our arrangement he is a renter.

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    7y
    Originally posted by @Jared Baker:

    @Colleen F. @Tom S.  Thanks for the info!  The reason that I would want to transfer it is to remove my brother from the burden.  If after a year he decides he wants to go buy a house, being on this loan with me could make it harder for him to get financing.

    Is there a way to remove him from the loan?  Based on the price of the property I can afford the payments on my own, however, as mentioned above, if I buy it myself and have to put the 20% down I will significantly reduce me available cash if unexpected repairs come up.  Would a refinance be an option to remove him from the loan?

    you may want to talk to a local mortgage broker who does FHA.. and I suspect they can guide you to the finish line safely

  • New to Real Estate · Worcester County, MA · Member since 2019 · 6 posts · 1 vote
    7y
    Originally posted by @Jared Baker:

    @Samer JaberThe arrangement that I made with my brother was that he would get a slightly discounted rent.  So he gets a larger space, which he wants, and in return he gets a discounted rent(Should be enough to cover the monthly payment plus some expenses).  He will also be kind of a manager of sorts, so he would make sure the driveway is shoveled and help mediate if the other tenant has issues, which he already said he was okay with.  We wouldn't split any "profit" as in our arrangement he is a renter.

    Wow. Good for you if that's the arrangement. It seems that the value he brings to the deal is worth a lot more than that. Since his name would need to be on the deed/mortgage there's plenty of space for things to go wrong, though. We always hope we trust family enough to be civilized an honor their word, but it's not like you'd be able to evict him since he'd be co-owner. Seems like having a good lawyer involved is advisable. 

  • Rental Property Investor · Durham, NC · Member since 2016 · 7k+ posts · 7k+ votes
    7y

    @Jared Baker. If You’re both on the loan. Simply changing title doesn’t get him off the loan, you’d have to refinance

  • Rental Property Investor · TN · Member since 2018 · 2k+ posts · 2k+ votes
    7y

    Two things you may want to consider:

    1.  If he has his name on this loan and in the future he wants to buy a house he will no longer qualify for the 'first homebuyer' types of programs which can have great benefits in many places.  Some have a 3% down requirement and very low interest.  So your brother could loose out personally by helping you.

    2.  If your brother's name is on the paperwork as say 1/2 owner, then that is what he legally is.  If you pass away, he is still half owner.  Your heirs get the other half.  Are you married or have kids?  Would your brother work as well with your wife, kids, baby mamas, or claim that half ownership, leaving them with all the bills and 1/2 ownership.  What if your brother gets in a situation, maybe a car accident, and gets a judgement, do you know 1/2 your duplex is at risk?  Do you want to buy out his half as part of his judgement?  Probably not since its your money, but with him having 1/2 ownership that is what would happen.   Or, conversely, what if you are injured and can not pay anything, and the duplex is at risk of foreclosure, does your brother want that on his record, or can he cover the mortgage if needed. Is this still true if there is damage to the other half of the duplex and it is not rented for 6 months as it is rebuilt.  Do you have a 6 month emergency fund that covers all your bills, by itself alone?  Are you deeding the property so it transfers to each other after one death, or is it to transfer to you or your heirs?

    If you do this with your brother you two should have a written agreement that includes a discussion of these issues and also what would happen after your or his death or injury.

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