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All Forum Posts by: Don Konipol

Don Konipol has started 200 posts and replied 5132 times.

Post: Can a “Subject to” Transaction be done SAFELY?

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
  • Votes 9,195

“Sub2 is for criminals and con artists. Anyone who comes on these threads and talks about doing Sub2 deals is garbage." James Wise


He’s often WRONG, but he’s NEVER in doubt 

Post: Can a “Subject to” Transaction be done SAFELY?

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
  • Votes 9,195
Quote from @Jay Hinrichs:
Quote from @James Wise:
Quote from @Don Konipol:

I've read all the posts providing posters personal opinions based on their experience, knowledge, biases, and specializations within the real estate field.  

The many NEGATIVE opinions, while not changing my mind that sub to CAN be done safely, have opened my eyes to the very real risks involved and the difficulty of structuring the transaction so as to protect all parties; I was also surprised to learn of how many investors have observed unsatisfactory outcomes with these type deals.

So, based on all your feedback, I have come to the following conclusions

1. While subject to. transactions can be done safely, it is most difficult to accomplish in residential transactions where the seller is a homeowner and not an investor. 

2. Full disclosure of the negative consequences (retention of liability without ownership of the asset securing that liability, limitation on credit capacity, etc.) must be provided the seller IN WRITING.

3. ALL parties should be represented by an attorney experienced in real estate

4. Buyers with limited knowledge, experience and capital should not engage in this type transaction

5. A subject to transaction involving commercial property and two professional real estate investors is an appropriate venue for a sub to transaction

6. the buyer should be fully prepared to refinance or payoff the existing loan if it is called due, and should have the capacity to do so.

7. the legal structure and documentation should be prepared by an attorney experienced in subject to transactions.

8. Avoid anybody who was a Pace Morby student


Sub2 is for criminals and con artists. Anyone who comes on these threads and talks about doing Sub2 deals is garbage.


Jim Luv you Bro but your over the top on this one.. 
yeah, I often disagree with Mr Wise, but I LOVE the fact that he unequivocally states his opinion. Even when he implies that I’m “garbage”.  This is the second time I’ve been called garbage in the last 6 months.  The first was by Joe Biden. LOL 

Post: Can a “Subject to” Transaction be done SAFELY?

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
  • Votes 9,195
Quote from @James Wise:
Quote from @Don Konipol:

I've read all the posts providing posters personal opinions based on their experience, knowledge, biases, and specializations within the real estate field.  

The many NEGATIVE opinions, while not changing my mind that sub to CAN be done safely, have opened my eyes to the very real risks involved and the difficulty of structuring the transaction so as to protect all parties; I was also surprised to learn of how many investors have observed unsatisfactory outcomes with these type deals.

So, based on all your feedback, I have come to the following conclusions

1. While subject to. transactions can be done safely, it is most difficult to accomplish in residential transactions where the seller is a homeowner and not an investor. 

2. Full disclosure of the negative consequences (retention of liability without ownership of the asset securing that liability, limitation on credit capacity, etc.) must be provided the seller IN WRITING.

3. ALL parties should be represented by an attorney experienced in real estate

4. Buyers with limited knowledge, experience and capital should not engage in this type transaction

5. A subject to transaction involving commercial property and two professional real estate investors is an appropriate venue for a sub to transaction

6. the buyer should be fully prepared to refinance or payoff the existing loan if it is called due, and should have the capacity to do so.

7. the legal structure and documentation should be prepared by an attorney experienced in subject to transactions.

8. Avoid anybody who was a Pace Morby student


Sub2 is for criminals and con artists. Anyone who comes on these threads and talks about doing Sub2 deals is garbage.


 Ah, come on James, stop holding back.  Tell us how you really feel about subject to financing LOL. 

Post: Chicago Investors we have a serious problem : Call to Action

Don Konipol
#1 Innovative Strategies Contributor
Posted
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  • The Woodlands, TX
  • Posts 5,899
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Quote from @Brie Schmidt:

Chicago just implemented the largest assault on property owner rights you have ever seen, if it’s not stopped, it could be implemented throughout Cook County and beyond.

The ordinance does two things: creates an opportunity for tenants to purchase their building when it is up for sale (a right of first refusal) in some Northwest side neighborhoods, and increases demolition surcharges by 400%

Here’s how the ordinance creates up to nine (9) months of delay in selling a building. Owners have to give their tenants:

  • * Up to 60 days advance notice of their intention to sell;
  • * Up to 90 days to decide whether or not they are interested in buying the building;
  • * Complete financial information including rent rolls; and
  • * Up to 120 additional days to find financing if they want to match the offer.

The ordinance applies to SFH, 2-4 units, mixed use and large apartment buildings—and even rented condos. It will depress sales prices, even if there is a buyer willing to go through the hassle of dealing with this ordinance. Clearly 1031 deals will be impossible. Owner occupied sales will be eliminated since a provision in the ordinance requires you to keep tenants for 6 months even if they are MTM or their lease expires.

Act now. Seriously, ACT NOW.

  • * The fines are up to $1,000 a day for non-compliance and proof of compliance will need to be submitted and reviewed by the DOH and a certificate will be issued to the title company.
  • * We may see mass evacuations of buildings because this ordinance is too difficult to deal with and it does not apply to vacant properties.
  • * No buyer is going to spend thousands of dollars in due diligence on a deal that might not move forward.
  • * The tenants have the right to sell the contract to a third party for a profit.

This ordinance will drive out small, local owners, replacing them with cash-rich, out-of-town corporate owners. This is a problem for all of us and we need your help right now. You need to tell your alderman, and the alderman of every building you own, what a terrible idea this is—even outside the ordinance zone.

Get informed! The NBOA has put together a page with more detailed info, updates and additional calls to action at nboachicago Make sure you sign up for their newsletter and stay up to date on how you can get involved.

Brie Schmidt, Designated Managing Broker of Second City Real Estate and Bob Floss, Owner of Floss Law have an extensive video on YouTube/ChicagoBrie. It includes a highlight video and reels you can share on social media.

Spread the word by sharing this on social media, with your friends and colleagues, and anyone you know who could be potentially impacted by this. This ordinance is awful and you need to help make sure it is stopped.

@Tom Shallcross @Mark Ainley @Crystal Smith @Lumi Ispas @Henry Lazerow @Sarita Scherpereel @Bob Floss II @John Warren @Jonathan Klemm

Communism didn’t die with the dismantlement of the Berlin Wall.  It just moved to the east and west coast cities in the U.S. 

Post: real estate syndication 1 million + raise

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
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Quote from @Robert Ellis:
Quote from @Don Konipol:
Quote from @Robert Ellis:

Has anyone here successfully raised over $1M in equity for a real estate deal using an online platform? If so, which one, and what was your experience? I’m evaluating:

1️⃣ Fundrise – Open to all investors, $1B+ deployed, low fees, good for smaller raises.
2️⃣ CrowdStreet – $3B+ raised, focuses on large commercial deals, accredited investors only.
3️⃣ RealtyMogul – $500M+ raised, REITs & individual deals, open to non-accredited investors.
4️⃣ EquityMultiple – $300M+ raised, high returns, accredited investors only, mix of equity & debt.
5️⃣ Yieldstreet – $1B+ raised, alternative assets beyond real estate, typically $10K+ minimum.

Would love to hear from anyone who has successfully raised capital on these or other platforms!"

 My experience is that the major platforms want two things

1- sponsors with a verifiable track record of success in the same property type

2- sponsors capital investment in the project

Sponsors utilizing these platforms have a large "gap" to make up - that being the difference between the amount of capital raised and how much of that capital goes into the actual asset, vs how much goes to fees, costs, etc. 

The attraction being that the sponsors believe that the platforms will raise the $, so they're out of that end, well maybe, maybe not so much.....

I've raised over $500 million in syndication and funds.  We use our own platform, and operate under Reg D 506 C.  

@Robert Ellis, you're obviously very experienced, and have a valuable property and deal going, well thought out and planned. The majority of people I see on BP asking about syndication lack any track record of success, do not have sufficient knowledge of the property type specifically or real estate principles, financing and law in general, and have little or no capital. There thinking goes something like this - I can buy this great property for $5 million cash flowing $600k per year (they neglect expenses). If I do it with a syndication I will have no debt; the investors will get a 6% ROI and I'll keep the rest ($300k per year). Plus, since no. debt I won't have any liability. If necessary I can borrow any funds I do need thru Pace Morby.


 Thanks for the comments Don. What is the platform? Are you saying you made your own site and constantly are raising equity? would you mind sharing it I'd love to check it out. Are you raising for more single purpose funds and SPVs or perpetual open ended? 

We've looked at doing this for a land development fund, horizontal development fund, subdivision I think is best as SPV for new construction or build to rent, I've been talking to groups but it seems horizontal lot development in the south east United States is getting the most interest from an equity perspective. we want to set that up this year. 

is your experience more in syndication for debt or equity and what types of assets and strategy? would love to discuss in depth same goes back to you. Your knowledge shows your experience


 In 2002 I founded a fund to invest in hard money loans that I originated.  The fund capped out at $5 million holding about 25 notes at any one time.  In 2005 
I began a second fund with the same criteria, and similar results.

These funds were finite life 3 year funds; the original fund was renewed twice by a vote of the investors (unit holders - limited partners) and the second fund renewed once.  By 2013 both funds had been wound down and principal returned to investors.  BTW, these were both Texas only fund, exemption from registration was via the intrastate exemption, and compliance was with the Texas Securities Board, where the offering was filed and reviewed to be in compliance. 

in 2014 I started a Reg D 506 C note fund, with the emphasis on note sizes much larger than the Texas only funds - $400k - $5 million.  In 2016 we started a real estate equity fund, again utilizing the Reg D 506C SEC "safe harbor" for private offering exemption from SEC registration.

Initially in our setup, we used a "off the shelf" platform that wasn't fully suited for what we wanted.  When the software provider gave us notice of a fourfold price increase, we began searching for an alternative.

Our "funds" are structured as series LLC. So, we are required to file Form D with the SEC only once - for the "parent" LLC. Each note we purchase is in a separate series, hence only a single asset make up a specific series, and there is no cross liability. investors who have registered with us and provided sufficient proof of accredited status, are presented with the opportunity to invest in a specific series, with the only asset of that series being a single note. We have essentially done the same thing with the equity offerings, thou on a somewhat smaller scale.

Since an accredited investor can choose to invest in one or more of our individual offerings (series), and each offering is a single note or single real property, the offering mirrors a syndication offering rather than a fund offering.  We are open to accredited investors across the entire country, and invest in property and notes nationwide. 

During our search for a replacement platform, we came across a system developed specifically as an in-house platform for a private lender we knew.  Having spent significant money developing the platform, they wanted to monetize their development but knew the platform would need significant improvement to be salable.  We made a deal with them where we lease the platform for a modest, almost token payment, but have provided significant input in improving the system.  We actually hired our own software engineers to modify the system for what we needed, and allowed the developer access to and property rights to what we developed in exchange for a long term license at low cost.  Further, the system has been modified to be very robust for real property as well as notes.

There are three main areas of the platform

1. in house use - "deals" are inputed into the system allowing access to all documents, deal status, remaining work to close, pricing, etc to both my partner, my self, and both of our other 2 employees.  Mortgage brokers who register with us can input loan requests directly, add documentation, check status of their loans, etc.  

2. information - concerning loans, loan requests, referrers, investors, etc. are all available in a variety of reports.  The platform automatically directs our bank to ACH distributions to investors when income is received or an asset is paid off or sold.  Loan interest nis calculate and invoices automatically emailed.  

3 - Investor use - investors can access their own accounts with information on their past, current, and proposed future investments, distributions, interest, etc.  They are also able to access new investment opportunities and all documents related thereof.  Further, they can arrange to wire or ACH funds to us for units purchase, sign Operating Agreement and Subscription Agreement, and download or read PPM. 

Post: Appraisal comes back lower than asking, seller is not willing to return deposit

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
  • Votes 9,195
Quote from @John Clark:
Quote from @Don Konipol:

 Have your attorney file a lis pendens on the property.  No title co will insure with a lis pendens, and no buyer in his right mind will buy.  It's called playing HARDBALL


 A lis pendens requires that a lawsuit be filed first, since the lis pendens is notice of the suit.

Also, if the buyer is terminating the contract, then title to the property is not in play, so no lis pendens is possible. If the buyer sues to get his money back and gets a judgment, then the buyer can record a judgment lien against the property, but not before.

From the postings, I see that there is a possibility that the buyer has defaulted on the contract. In that case, the seller is right to keep the money, depending on the terms of the K.


 I stand corrected!

Post: Can a “Subject to” Transaction be done SAFELY?

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
  • Votes 9,195

I've read all the posts providing posters personal opinions based on their experience, knowledge, biases, and specializations within the real estate field.  

The many NEGATIVE opinions, while not changing my mind that sub to CAN be done safely, have opened my eyes to the very real risks involved and the difficulty of structuring the transaction so as to protect all parties; I was also surprised to learn of how many investors have observed unsatisfactory outcomes with these type deals.

So, based on all your feedback, I have come to the following conclusions

1. While subject to. transactions can be done safely, it is most difficult to accomplish in residential transactions where the seller is a homeowner and not an investor. 

2. Full disclosure of the negative consequences (retention of liability without ownership of the asset securing that liability, limitation on credit capacity, etc.) must be provided the seller IN WRITING.

3. ALL parties should be represented by an attorney experienced in real estate

4. Buyers with limited knowledge, experience and capital should not engage in this type transaction

5. A subject to transaction involving commercial property and two professional real estate investors is an appropriate venue for a sub to transaction

6. the buyer should be fully prepared to refinance or payoff the existing loan if it is called due, and should have the capacity to do so.

7. the legal structure and documentation should be prepared by an attorney experienced in subject to transactions.

8. Avoid anybody who was a Pace Morby student

Post: Where and how can I learn in depth about subject to, wraps etc without the fluff etc?

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
  • Votes 9,195
Quote from @Zeona McIntyre:

@Zach Howard I am working on a how-to book on Creative Financing now (I am the author of BP's book on Mid Term Rentals) because when I was teaching myself I was frustrated at the lack of clear instruction. I struggle with podcasts because they show a slice but not usually a start-to-finish how-to and you could invest countless hours (like I did) listening to many podcasts to piece things together. While Pace Morby seems to know his stuff, he puts out incredibly long videos and I didn't have time to sort through all that fluff & didn't want to pay 8k to be in his course. 

My best recommendation would be to find someone who is doing something similar to what you hope to do in the space and have a coaching call or two. If you have a focused plan and prepared questions you can learn a lot in an hour. 

People I admire in the space: Grace Gudenkauf (also a BP author) or Jenn & Joe Fave. 


 Zeona, I just saw your post.  I've been referenced in a number of real estate books and publications, as well as written a number of articles related to creative real estate finance.  All my information is based on both my personal experience as to transactions I have successfully concluded as well as my knowledge of the laws, rules and regulations affecting real estate transfer, finance and sale currently in effect.  Please let me know if there's anything I can provide to help you with your book.

Post: Show me the math! Looking for an example or case study

Don Konipol
#1 Innovative Strategies Contributor
Posted
  • Lender
  • The Woodlands, TX
  • Posts 5,899
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Quote from @Alex S.:

I am looking for a case study or resource that has various examples of investing from 1 deal in MF to an establised portfolio..

I simply want an illustration of the capital that was compounded over time to the point of creating wealth and spendable income for the owner. 



The Real Estate Game: The Intelligent Guide To Decisionmaking And Investment Hardcover – September 13, 1999 by William J. Poorvu (Author), Jeffrey L. Cruikshank (Author)

Post: Underwriting an LLC buyer for seller financed property?

Don Konipol
#1 Innovative Strategies Contributor
Posted
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  • The Woodlands, TX
  • Posts 5,899
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Quote from @Bryan Hartlen:

We’re selling a SF rental property and offering seller financing.  We’ve bought, sold and created a handful of notes but they’ve always been to individuals.  

Do you treat underwriting an LLC buyer differently than an individual? We've previously used Call the Underwriter to underwrite individuals, but my understanding is that compliance is less of a concern when selling to an LLC?

Are there any LLC-buyer specific potential pitfalls that we should be wary of?

We’ve had one group want to do the purchase within a trust; specifically put the property in the trust and then sell the trust.  Any concerns with doing this rather than a straightforward sale and having them handle trust steps after the sale and without our participation?

We don't plan to sell the note, BUT we want to keep that exit open should the need arise. Anything unique about re-selling a note held by an LLC that we should take into account? Are they more/less desirable than a typical owner-occupied note?

Any recommendations on attorneys that would have experience in this that could advise and handle the transaction (in Birmingham, AL)

Thank you in advance for sharing your experience and wisdom.


As a commercial hard money lender and buyer of commercial property notes, almost all our borrowers are entities. Unless the LTV is VERY low, or the entity borrower VERY strong, we require a personal guarantee of all "owners of beneficial interest".

However, any of our "rules" can be relaxed, at our option, with compensating factors, such as low LTV, large down payment, high borrower liquidity and net worth, additional collateral, profit participation, prior experience with borrower, etc.