Hi all- I have a condo I rent out that I originally obtained through a first time home buyer loan. Well my lender sent me a letter because they noticed this isn't my primary residence anymore and the loan states that I need to be the primary occupant for the life of the loan. They said that I need to contact a tax professional because there might be tax implications and it may affect my mortgage interest deduction. Can anybody shed some light on what the penalties are here or the tax implications, how it affects mtg interest deductions.
Thanks in advance!

Drag out the loan documents from when you bought the property. Read them. Most likely, there is something in there about this matter.

For example, if you buy a new house under the new first time homebuyer program, and take then $8000 tax credit, then a year later move out and start renting the property, you have to pay back the $8000. If there was some sort of interest rate buy-down based on some government program, there might be similar provisions.

At the very least, the mortgage interest deduction is in a different place on your tax return. Have you made your CPA aware the property is a rental? I would assume you have so all the expenses, rent, and interest get property handled.

DIY taxes and rental property don't go together, IMHO. If you're DIY'ing your taxes, a CPA may well pay for themselves by making sure you get all your deductions.

Jon thanks for this information all very helpful!

So I talked to my lender today and they said I need to refinance my loan. Well since this property is new a rental property I have to refinance into an investment loan. What are the expected costs I can anticiapate. I have read the closing costs can be very little or even rolled into the loan. Is a downpamyent of some sort required?

What kind of balance are you talking about? Current rates on NOO loans are right about 6%, assuming you have good credit and enough income to qualify. If the rent appears on two tax returns, you can use that, too. I just did one for about $88K and the costs were about $3000. What do you owe and what's it worth. If you're under 70% LTV, you should be able to avoid bringing any cash to the table. If you're over 80%, you'll almost certainly have to make that up. In between, it depends on the lender.

The lender will do a new appraisal. You should be there and be prepared to justify the value you think its worth. However, I would caution you to plan for the appraisal to come in lower than you expect.

I bought the property for $96K and owe approximately $91K. Not exactly sure what the appraisal would come in at....but I have seen similar condos in that area currently for sale at $96K. I am really hoping to not have to pull anything out of my pocket or very minimal or even roll costs into the loan. Reason being this snuck up on me and I don't have a lot of cash to cover this right now.Any feedback to what I have wrote or advice I can speak to my broker about?

You say you talked to the lender, but did you READ the loan documents as Jon suggested earlier? The lender customer service reps aren't always that savvy, so you have to see what you agreed to with your original loan.

You might even find that so long as you were an owner occupant for some period (like one full year) of consecutive months, that you would be allowed to move elsewhere, and keep the loan in place while renting out that condo! So do some reading.

I am actually looking through my loan docs now to find information on this. The letter I received from the bank said I had to occupy for the life of the loan? i guess these are the stipulations for some first time home buyer loans??

Steve's right, read the note and the other documents. You might be able to find a loophole to leave the current loan in place. Some time with a lawyer might be money well spent. Unless this was some sort of subsidized financing, or specifically limits your ability to move out and rent the place, I don't see they have much of a leg to stand on. What you're looking for is any sort of provision that puts you in default if you move out.

It just occured to me you're talking about a condo. Those can have special provisions for OO vs. NOO. That's because when more than a specific percentage of the units in a project become NOO, the entire project becomes "non-warrantable". That means financing is much more difficult for any property in the project. There could be provisions to try to avoid this.

If you have to refinance, you are going to bring cash to the table. If others are listed for $96K, they're selling for less than that. I don't think you'll find a lender who will go above 80% for NOO loans, and 75% or even 70% is more likely. Even at 80% and a $91K value, you'll need to bring $18K plus costs to the table to refi. OUCH!! Might be time to consider a short sale.

When I said condo I actually meant a town home so it's not a unit. How does a short sale affect your credit and what would I do if I already have a renter in the condo

A short sale will knock your credit in the dirt. You may need to get late on the payments to get them to agree. Not as bad as a foreclosure, though, which is where this is headed if you can't refi and they have the legal grounds the call the loan.

Leases typically remain in place when the property is sold, so the tenant would stay there.

I have a $260k home that I currently live in that officially appraised at $270K and i put 3.5% down on the 260K. Would i be able to tap into any of this if need be? I have great credit actually

I doubt it. HELOCs tend to be limited to 90% at the moment. Realistically, if you sold that house at $270K, you would have bring a few grand to the closing to cover the costs and commissions. Banks know that, and limit the LTVs for HELOCs.

Again, read that note. They may just be trying to bully you. Or, a good lawyer may find some way to avoid them calling the loan.

Originally posted by Jon Holdman:
...

If you have to refinance, you are going to bring cash to the table. If others are listed for $96K, they're selling for less than that. I don't think you'll find a lender who will go above 80% for NOO loans, and 75% or even 70% is more likely. Even at 80% and a $91K value, you'll need to bring $18K plus costs to the table to refi. OUCH!! Might be time to consider a short sale.

I was thinking along those exact lines, that a loan for NOO would be tough given the balance owed vs value. That's why that magic loophole to keep the existing loan in place is the best hope for the time being. Or see if the lender is willing to loan mod on this so that you can keep it in place. Otherwise, you might find yourself "in default" and they call the loan due in full.

How long did you live in this condo before moving out? I can't see why the lender would be getting all strung out over this situation with everything else on their plates.

I lived in the property for a little bit over 3 years.

I did go through my loan documents and found the Occupancy Affidavit and it says " To make a mortgage loan and as an inducement to the federal housing administration to insure said loan, or the department of veterans affairs to guarantee said loan, or a private mortgage insurance company to insure said loan, as the case may be": and then there is a box checked that says "I/We presently occupy, or intend to occupy, the subject property as my/our principal residence". So this is what the bank is referring to but my question to that is sure the box is checked and I understand the statement and all but it doesn't say "for the life of the loan"

Agreed. Seems very odd the lender is causing a stink. It would be a different situation if you said you were going to occupy it then rented it right away, but three years is quite a while.

There should be a section in the loan papers, specifically the promissory note, called "default". It should list a bunch of reasons the note can be in default. Anything there? Is there a separate document regarding occupancy? That clause you cite is a standard clause, but I've not heard of banks using that to call the note if you've lived there for a while and then turn it into a rental.

May be worth finding a lawyer to have a look at your docs and advise you.

You think a standard lawyer that deals with Residential Real Estate. By the way any idea how much that might cost, just wondering I am sure it is worth it.

No, you want a lawyer knowledgeable about real estate. Your best bet is a recommendation from someone who has a lawyer they use for real estate. Another possibility is a recommendation from a real estate investment club in your area. If nothing else, start calling and asking questions.

Most lawyers will do a short initial discussion for no charge, just to be sure you know what you're getting and that they can actually help. After that its going to be an hourly rate. The highest I've paid for a lawyer was $200 and that's for someone who had very specific knowledge about what I was dealing with. If you read through the documents carefully, and can say "I see this and this and this here, what does this mean" it should take less time than if you hand over a stack of docs and have them dig through them.

Another though. Ask the lender why they are giving you this grief? Ask them to tell you specifically why they think you are in default and why you are being forced to refinance. They should be able to point out something specific in the contract or in the law that governs the contract that enables them to take the action they're taking. I assume they sent you a letter about this. That should say, too.

If it is indeed something like that clause implies you will live in the property for the life of the loan, then they're basing that claim on the governing law. Here's where a lawyer can really help. He or she can explain the underlying law and would be knowledgeable exactly how that law applies and whether or not there's any way around it.

Originally posted by Jeff McNamee:
I lived in the property for a little bit over 3 years.

I did go through my loan documents and found the Occupancy Affidavit and it says " To make a mortgage loan and as an inducement to the federal housing administration to insure said loan, or the department of veterans affairs to guarantee said loan, or a private mortgage insurance company to insure said loan, as the case may be": and then there is a box checked that says "I/We presently occupy, or intend to occupy, the subject property as my/our principal residence". So this is what the bank is referring to but my question to that is sure the box is checked and I understand the statement and all but it doesn't say "for the life of the loan"

It would help to know what kind of a loan it is. FHA? VA? Based on the content you posted, this appears to be a VA-backed loan. If it is (and even if it's an FHA loan), the home must be owner occupied.

I just called the mtg company again and told them I was unable to find anywhere in the documents where it stated I am expected to stay in the home for the life of the loan. The loan officer told me that with this type of loan being a first time home buyer loan and it being a state bond program that is the requirements. So I said if I need to refinance that is fine and all but I am refinance a property that has a tenant currently in the home. I can provide a lease contract that is no problem but I will not be able to fork out a big down payment. Can the bank work with me because i have no problem paying this loan on my own and if I can't get assistance with a downpayment and they want to foreclose on a loan that is definitely payable by the borrower they are really losing out. So given the current lending environment and my situation you think the bank will at least work with me. I am expecting a call back from a loan officer to discuss details around a refi.

The problem I think you will encounter has to do with the loan amount to value ratio (LTV) that will be permitted on a non-owner occupied property. This will be 70 or 80, meaning that the maximum loan you will be able to get will be for 70% or 80% of the appraised value of the property.

And that implies that you would have to bring the cash to cover difference when the closing of that loan happens. My guess you aren't sitting on that kind of money right now, and that is what one of Jon's previous posts alluded to. I think he estimated ~$18K in that earlier post. This is what I was getting at in one of my earlier posts too. And I'm guessing that if you can't get that kind of cash, then keeping the loan in place is your best bet.

As Jon and I suggested, look for ways to keep that existing loan too; challenge the bank to show how you are in "violation" of the contracted loan terms.

Right I hear what you are saying but lets say I am indeed in violation of the loan terms and I wasn't aware that was the terms. I would imagine it would be in bank best interest as well as mine to keep the loan similar otherwise they would have to write off $91K because that is what I still owe on the loan. So obviously working with me on the $18K is a better option than taking a hit for $91K. I mean that is the way I hope they look at it. I mean like I said before I have no problem paying this loan and never have and my income will show that. Thoughts??

When I say in violation of the terms I mean maybe it did say some where that I was supposed to remain in the home for the life of the loan. Well going forward don't you think the bank and I can come to some sort of terms that are similar to the current loan rather than take $90K+ hit on their books on a loan where the borrower as completely capable of paying the monthly payment in the loan terms?

I would assume the LTV issue wouldn't come in to play if this was a standard 30 year fixed loan with normal terms. I would be able to rent the place out and there would never be an issue with LTV because it wouldn't matter because I wouldn't need to refi. That is where I am hoping the bank will move to try to work out a loan along those terms. My income and credit would support that.