The legalities of Wholesaling

The legalities of Wholesaling

Investor · Madison , WI · Member since 2016 · 48 posts · 10 votes

I want to start by saying: WHOLESALING IS NOT ILLEGAL. 

Wholesaling is buying a property at a discount and selling it to an investor or anyone who isn't the end user. 

I'll address a few common questions and misconceptions: 

1. What makes a contract valid and the "cash buyer" claim; 

A binding real estate contract is only valid if you have the intent and ability to close. All this means is you need to line up a transactional lender, private investors or even JV with an investor (acting on your on behalf as it relates to the joint venture). If this sounds too hard for you maybe Wholesaling isn't for you..

Marketing to sellers saying you're a "Cash Buyer" when you have no access to capital is considered fraudulent... Because it is. 

If you have a transactional lender on your team, which you should, you can simply put a financing contingency in your contract, instead of misleading sellers. Some may think this will kill the deal for them, after all as a Wholesaler your value proposition to sellers is a quick cash close, I'm here to tell if you position yourself as a professional, build rapport and go into the transaction looking to truly help the seller they're not going to care. Always discuss the problem and solution before the mechanics of the deal.

2. Marketing a property you do not have title to; 

Some (most) states have a rule called "Equitable Conversion", what this means is that when you and the seller enter into a binding contract you have the legal right to market the property any way you want BEFORE you close. So many people preach real estate law and don't know the actual rules, before you listen to anyone, even me, have that person produce documents or web articles of some kind to validate what they have told you (PM me if interested). Aligning yourself with some sort of money partner allows you to legally exercise this right, because you'll be closing before you resell (intent and ability). 

4. Assignments; 

I believe assignments were put into contracts to protect all parties involved in a real estate transaction. It allows the buyer to transfer his or her rights to another party incase they encounter difficulties that cause them to not be able to close and fulfill their contractual obligations, it's actually genius if you ask me. 

There's nothing wrong with an assignment, things happen in real life. The problem occurs when people only intend to assign but advertise and consult with the seller as if they intend and have the ability to close, re-read that. 

5. Brokering without a license;

If you're acting on your own behalf in a transaction you are not brokering without a license. Acting on your own behalf means you're not negotiating for anyone but yourself and that you have equitable interest in the property, become a principal in the transaction by use of a valid contract and never play middle man

I hope I helped, if I missed anything feel free to comment or PM me. 

Positivity only, I will not tolerate any form of disrespect on my post. 




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Investor · San Marcos, TX · Member since 2015 · 272 posts · 360 votes
9y
Wholesaling is a grey area. As it becomes more popular I personally hope that it becomes more regulated. Not always...but often enough it is equity theft. It is often very sophisticated and educated professionals using their knowledge and the home owner's bad situation and/or home owners ignorance to acquire the property for less than the property's market value. Laws are often put into place to protect uneducated people from opportunistic predators. I am not saying that is always the case but it is true enough. The grey area is that the wholesalers is brokering a deal. The assigner has no intention of purchasing and every intention to find a buyer. That is essentially what real estate agents do. You may have benign intentions but the vast majority of wholesalers are just predators looking to steal some blue collar poor person's equity by leveraging that person's ignorance. Once again that is a broad generalization and does not hold true in every situation. Still true enough.
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  • Lender · Frederick/ Falls Church DC, Maryland & Virginia · Member since 2014 · 794 posts · 612 votes
    9y

    @Account Closed 

    I wholesale myself and I understand what you are trying to do but many of these blanket claims in the post I find misleading.  

    1)  "Wholesaling is not illegal" is a pretty broad assumption.  Every state has different laws on the matter.  Further more real estate professionals are often held to a different standard.  So its very possible that wholesaling for an individual in a specific state is permissible while an agent in that same state could face harsh penalties.  I think in MD there is a fairly strong case to be made against agents who wholesale.  In Ohio I have heard several times about people (wholesalers) were fined for "unlicensed activity".  Is this the norm?  Probably not.  Does this mean wholesaling is illegal?  Not necessarily.  But for anyone reading, especially new people, I think it would be wise to educate themselves on the subject as it pertains to their state.  A comment like "It is not illegal" is misleading and subjective. 

    2) "Wholesaling is buying a property at a discount and selling it to an investor or anyone who isn't the end user."

    This is just wrong.  You are not buying it you are "assigning the contract" or "right to purchase" and it could very well be to the end user.   

    3) "A binding real estate contract is only valid if you have the intent and ability to close." 

    What?  So I could be in a binding contract and then say I never had the intent to close therefore its not valid?  Incorrect.  

    No need to go point by point or any further.  We just have a difference of opinion with a lot of these points.   

  • Investor · San Marcos, TX · Member since 2015 · 272 posts · 360 votes
    9y
    Wholesaling is a grey area. As it becomes more popular I personally hope that it becomes more regulated. Not always...but often enough it is equity theft. It is often very sophisticated and educated professionals using their knowledge and the home owner's bad situation and/or home owners ignorance to acquire the property for less than the property's market value. Laws are often put into place to protect uneducated people from opportunistic predators. I am not saying that is always the case but it is true enough. The grey area is that the wholesalers is brokering a deal. The assigner has no intention of purchasing and every intention to find a buyer. That is essentially what real estate agents do. You may have benign intentions but the vast majority of wholesalers are just predators looking to steal some blue collar poor person's equity by leveraging that person's ignorance. Once again that is a broad generalization and does not hold true in every situation. Still true enough.
  • Investor · Madison , WI · Member since 2016 · 48 posts · 10 votes
    9y

    @Andrew Michael, 

    Wholesaling is when you buy and sell real estate at a discount, assignment of contract is not Wholesaling by actual definition. 

    Nothing I said was misleading I clearly give newbies a way to actually Wholesale legally and ethically. 

    Take a contract to a judge and ask them what validates it. 

    I don't see the purpose of your comments, my information is 100% factual. I'm teaching people how to not broker illegally. 

    Nice try. 

  • Investor · Madison , WI · Member since 2016 · 48 posts · 10 votes
    9y

    If people actually understood the verbiage and didn't have all this BS guru information floating around I wouldn't have to make posts like this. Learn the difference between Wholesaling and contract assignment no where on earth is is illegal to buy and sell real estate. 

    Brokering without a license happens when you have no intent to CLOSE on the property, please do not jump on my post and make idiotic statement when it's clear you don't understand basic definitions. 

    Pick up a dictionary and look up the word wholesale, do your research on binding contacts then come back with a valid argument. 

    As far as most Wholesalers being evil or stealing equity I'm not sure about that because I don't know every wholesaler in America. 

    Please learn the laws and verbiage before you jump on BiggerPockets and make a fool of yourself. 

    Best of luck, 

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    9y

    @Account Closed  correct me if I am wrong but I was under the impression the state Of WI is the only one in the union that requires sellers to use RE brokers.. is this true?

    while I see the points your making its just not reality out there in the urban jungle...

    but the laws are there to protect the public its up to  the agencies to enforce them..

  • Investor · Madison , WI · Member since 2016 · 48 posts · 10 votes
    9y

    Sellers can sell their homes without using a real estate agent in Wisconsin. 

    Wholesaling is NOT contract assignment by (actual) definition. 

    Equitable Conversion is real. 

    It's best to just get a license. 

    The intent and ability to close do validate a contract, and I'm saying that if it was brought to a real estate litigator. 

    People, learn the rules and stop brokering illegally. 

    Best of Luck, 

  • Investor · Madison , WI · Member since 2016 · 48 posts · 10 votes
    9y

    Also, please stop calling yourselves "Wholesalers" if you don't know the definition. 

    Flipping contracts is basically brokering securities, Buying and selling a home is not. 

    Let the truth free you lol. 

  • Investor · San Marcos, TX · Member since 2015 · 272 posts · 360 votes
    9y
    You are inaccurately trying to use semantics to justify and support your argument.
  • Lender · Frederick/ Falls Church DC, Maryland & Virginia · Member since 2014 · 794 posts · 612 votes
    9y

    @Account Closed

    You seem to have taken offense to my post so I apologize as that was not my intent.  I was NOT suggesting that you are maliciously misleading people.  

    What I am saying is that most people in real estate define wholesaling differently then you.  Furthermore the audience on this site that are looking to get into wholesaling will be going about it differently then you.  If you feel that you have the true definition and the rest of us are in the dark then so be it but again that is not the position the audience here takes especially beginners.     

    Investopedia - A real estate wholesaler contracts with a home seller, markets the home to his potential buyers, and then assigns the contract to the buyer.

    BP Ultimate Guide to Wholesaling -  Jim and Tom then sign an “assignment contract” where Jim gives Tom the right to buy the home from Deborah (because remember, the contract between Jim and Deborah said that either Jim or someone else will buy the home. This is known as an assignment, and we’ll go into more detail in a bit on this).

    ...Jim never owned the property, but made $5,000 for bringing together Tom and Deborah.

    Of course there are several different methods to wholesaling but the definition I gave is pretty widely accepted.

  • Investor · Cincinnati, OH · Member since 2012 · 506 posts · 331 votes
    9y

    I've no doubt that you have a handle on how to Wholesale in Wisconsin, but the variety of laws and practice of enforcement in other states makes it unwise to make blanket statements about how to wholesale in other parts of the country.  As an example, Ohio doesn't care about Equitable Conversion - I've had several conversations with the Enforcement group at the Commerce Department in Ohio about this.

  • Investor · Cleveland, OH · Member since 2016 · 96 posts · 27 votes
    9y
    Thank you for this. I see so many Veteran RE Professionals try to scare away newbies or talk them into getting a real estate license.
  • Investor · San Marcos, TX · Member since 2015 · 272 posts · 360 votes
    9y

    It is not about scaring away anyone. Real estate is about regional and local markets. Unless you are putting in an offer on the same house as me in San Marcos, TX then you are not competition and I hope you are very successful in real estate investing. The OP is taking a business definition of wholesaling and applying it to real estate. Real estate has its own lingo and ambiguous terminology. As an example cash flow as it is discussed on BP is not a business world definition. Wholesaling in real estate is a broad term that essentially means sourcing property, getting it under contract, and assigning it to an actual buyer. The profit is in the delta or assignment fee. If you buy a property and resell the property within a 1 year time frame then that is considered flipping. You do not have to value add the property, you can simply sell an under market property for market value and collect that delta as income. What the OP is doing is trying to use flipping to make a case that wholesaling is legal. Flipping and wholesaling are not the same.

    Wholesaling is an opportunistic and often predatory practice of seperating ignorant people from the equity in their house. The goal is to acquire property for less than what it is worth and selling it for market value. Real estate professionals like real estate agents add value to transactions. A real estate agent is required to look after their clients best interest. This is a relationship that we have with all professionals like CPAs, lawyers, and doctors. A wholesaler has no obligation to look after anyone's best interest but their own. 

    Go to Craigslist and search investor, investment, or wholesaling under real estate. You will see the neighborhoods that wholesalers often operate in. In San Antonio they are in hispanic neighborhoods, that tend to be uneducated, and less savvy. A bilingual real estate pro solicits them to convince them to sell their property via any means that the real estate pro is ok with. The ethics and morality of the conversation are left entirely up to the educated real estate pro's own conscious. The real estate pro's goal is to simply talk the home owner into selling for the least amount possible in a less than honest process. 

    This is not true in every situation and for every wholesaler but it happens often enough. 

    A real estate agent looks out after the best interest of their client and facilitates the buyer and seller relationship.

    A flipper adds value by performing repairs, re-marketing, or improving the property.

    A wholesaler's value add to a transaction is questionable at best. Sending out mailers and being arguably dishonest with people is not a value add.

  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes
    9y

    @Account Closed I am going to say that legality probably depends more with the details of how it is done. There are ways to do it legally and that may vary by location.

     I think more people have an issue with the ethics or predatory aspect of it. Any sort of service that targets people who make rash decisions out of emotional desperation is often looked at as predatory. I have mixed feelings on this. One side of me says "seller beware" but the other side of me believes vulnerable people should have some protections. For example, my wives mother was sold a thousand dollar used Kirby vacuum by a door-to-door sales person. The vacuum was so heavy she couldn't even use it. They took her perfectly good vacuum on "trade in". It was an aggressive Kirby salesman that took advantage of a woman that was elderly and dealing with reduced mental sharpness. I am sure the salesman would argue that what they did was legal and that he was just solving a problem for the old lady by giving her the best vacuum in the world. The truth is that he is a scumbag preying on old people.

    Now by comparison, realtors are bound by a code of ethics. They are trained on ethics and there is a process to report them if they are doing questionable things. It is a self regulating industry, whereas wholesaling is generally not. That leaves more room for dishonest people to take advantage of people when wholesaling.

    Just to clarify Eugene, I don't know you but I am confident you are not taking advantage of people. I doubt a dishonest person would take the time to write a post about this which just shows you are trying to do the right thing. I am just saying that other wholesalers are giving the profession a bad name. This will lead to more regulations and will ultimately make it harder for honest wholesalers to do their job.

    By the way, as a landlord I am continuously fighting a negative perception. My own family members used to think it was funny to call me a slumlord, even though my properties are all very nice. Most negativity comes from using generalization to paint an entire group of people as bad. It can be based on occupation, race, gender, political party, economic class and the list goes on and on. Wholesalers in many cases serve a need in the market, so they are not overall bad. Just be one of the good ones and don't worry what others think.

  • Investor · Milwaukee, WI · Member since 2016 · 389 posts · 193 votes
    9y

    There's on obvious distinction we're treading between something being legal and something being ethical. 

    While the local wholesalers I know are beyond honest with sellers, and provide actual comps for a property, often telling them they could sell it for more on the MLS but what they provide is a quick and easy cash sale (often better when a property can't be financed) the gray area is when wholesalers do not accurately represent or reveal the true value of the property.

    I accidentally did this with a seller who contacted me in a capacity as a real estate professional when I thought based on the context she wanted me to buy the property. Brokers have, for whatever it's worth, a fiduciary responsibility to understand the market in which they operate and help people make the best choices given the available facts. By going in and telling her that I would buy the property for X dollars in cash, I understandably lost her trust and totally misread the situation, but it made it obvious to me how people that are not market savvy put their faith and trust in real estate professionals.

    Because wholesalers operate beyond the bounds of this 'fiduciary responsibility,' while their contracts may be legal and above board, the dynamic they have with the seller is not necessarily so. And to the OP, I am not saying this is how you operate! But there is obviously room within the profession for this type of unscrupulous behavior...

    And to be fair, Realtors can also be shiesty. Codes of Ethics don't mean all that much, and I was just reading one of the precursors to NARs code of ethics drawn up by the Chicago Real Estate Board in the 40s or 50s, holy cats, is that thing chock full of open and obvious discrimination and prejudice, and all the realtors, just 'minding the code of ethics'...

  • Realtor · Cleveland, OH · Member since 2015 · 2k+ posts · 857 votes
    9y

    How does a wholesaler provide comps to a seller if they do not have MLS access?

    Being on the MLS would assume you are a Realtor.

    I just don't see a wholesaler having the ability to look out for the best interest of the seller.

    If they were forced to close on the property/deal and play with their own actual money which MANY DO NOT. Then I would have much higher respect for them, but some many enter wholesaling because GURUS tell them it's very little to no risk of their own cash.

  • Developer · Fayetteville · Member since 2016 · 91 posts · 57 votes
    9y
    Instead of going through all of the comments and people trying to explain wholesaling from different parts of the country it is very beneficial to seek out a real estate attorney to make sure you can wholesale in your state without the risk of getting a call from the state.
  • Rental Property Investor · West Bend, WI · Member since 2015 · 931 posts · 598 votes
    9y

    Wholesaling without a real estate license in Wisconsin is illegal, you are required to have a license by the state statute definition of brokering. page 1 of the link has the definition of "Broker" and these activities require a license, However if you take ownership thats a different story, then you are limited to the number you can sell without a license. 

     http://docs.legis.wisconsin.gov/statutes/statutes/452.pdf

  • Investor · Madison , WI · Member since 2016 · 48 posts · 10 votes
    9y

    I guess sometimes it's the messenger and not the message. 

    Don't understand where all the negativity is coming from, but this is social media so I'll take it. 

    Whenever I mention "Wholesaling" I'm 100% talking about buying a property and reselling it NOT assigning the contract, there is a difference. 

    To all the people that can read through the garbage follow the tips I gave and go out there and make some money, legally! 

    Best of luck, 

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