Friday is upon us, and most of the leaves have already fallen here in the Northeast. The trees are bare, and this can only mean one thing - bare trees. OK, so the secret is out - I'm not a comedian.
One thing that is not a laughing matter in Real Estate are the contracts that are used for the different flavors of deals. Today, we are going to take a look at these contracts from the perspective of Rent to Own, with input from Attorneys from 3 States; Florida, Ohio, and Texas. We will preface this with the caveat that this is not legal advice, we are not attorneys, and thus the title word, "perspective", and not guidance.
In the State of Florida, which is always a hotbed for deals, we spoke with Charles P. Castellon, an Attorney and Counselor at Law in Florida. Castellon tells us that it is important to realize that, "The applicable protections depend on whether you’re entering the deal as seller or buyer.", and he says that from the seller's side, especially in Florida, that, "it’s helpful to draft 2 separate agreements — a residential lease and option agreement.", as, "the rationale is the buyer/option holder could more easily force the owner to file a foreclosure action rather than a simple eviction if both sides of the deal are integrated in one agreement." Castellon continues to say that, "In the latter situation, a court could deem the buyer to have equitable rights giving the buyer/tenant the same rights as a mortgage borrower, thus requiring a more costly and complex foreclosure rather than a relatively simple eviction." From what I personally understand, if a rent credit is being applied to the down payment each month, the tenant is building up equity.
Castellon says that an owner can, "write into the agreements a waiver by the buyer of any claim that the buyer may be entitled to equitable rights requiring a foreclosure case and instead agree that a breach of the lease agreement would be litigated in an eviction case only.", and that, "Buyers should seek to have a portion of all rent payments credited toward the purchase price. Building equity for the buyer and a greater stake in the rental property is beneficial for both sides, as the buyer will think more like an owner than a tenant." Additionally, he says that, "Buyers should also insist that all cost responsibilities are clearly spelled out. For example, either side can be responsible for costs such as taxes, insurance and association fees and everything is negotiable. The buyer may want to seek some kind of protection of his/her interest in the property in the event the owner fails to pay property taxes and thus risks the loss of the property to the tax collector."
In the State of Ohio, we spoke with Troy Doucet, a foreclosure defense and consumer litigation attorney, who says that, "Ohio law requires the inclusion of about 15 different terms into any land contract in order to make it valid. Someone unfamiliar with these requirements could generate a void contract, and cost themselves statutory damages in addition to having to refund money paid." Doucet says that, "Creating a lease that provides for the ability to purchase later creates other hurdles under Ohio law, especially with regards to recording any kind of security interest in the property", and says that his recommendation is to, "always consult an attorney in drafting these types of contracts because they can be considerably problematic for the seller and buyer if not drafted correctly."
Finally, in the State of Texas, we spoke with Attorney Patrick E. Hudson, who says that, "Rent to own laws vary from state to state", and that "In Texas, sellers used to take advantage of rent to own buyers by taking the house back when the buyer missed the first payment, even if the buyer had paid on the home for years.", but that, "the Texas legislature stepped in and put burdensome regulations on rent to own sellers.". Hudson says that the regulations, "generally provide that the buyer has to be provided notices and opportunities to cure any default before the seller can take the property back.".
Hudson says that the state regulations are so difficult to comply with that, "many law firms advise their sellers to avoid rent to own contracts". He does, however, mention an alternative, where, "A seller can lease the property and give the renter/buyer an option to purchase the home at the end of the lease for a good price.", which, "avoids all of the hurdles of a rent to own transaction.".
We are looking for some additional input from real estate attorneys in other states, and we welcome your comments on this post.
Have a Great Weekend, and Happy Rent-to-Owning !
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