This is a requirement of lending.  Lenders do not like to see “flipping,” and require that the title “season” before they will loan on the property.  Without seasoning, the lender cannot package the loan for sale on the secondary mortgage market.

The secondary mortgage market is what we commonly hear called “Fannie Mae” or “Freddie Mac,” two of the largest buyer’s of mortgages in these times.

Recently I learned that this even includes an investor who transfers a title in and out of their LLC for lending or liability purposes.  Doing so renders a buyer unable to obtain a loan, no matter how long the “real seller” has been a constructive owner.  The law only cares that the title transferred.  This is a serious point to consider.

Why would this matter?

If the loan cannot meet underwriting guidelines the lending fails.  The lender won’t loan, the mortgage insurance company won’t insure the mortgage, the lender can’t sell the loan.  All around it makes selling a property impossible unless it is a contract sale, a loan that doesn’t require mortgage insurance (such as a 20% down mortgage), or a cash offer.

For a lenders description of this, I obtained the following explanation from Cecelia Kern, of Mortgage Trust:

“Purchase transaction require the subject property be owned by the seller for at least 90 days from the date of the purchase agreement unless the seller meets one of the following conditions:

Individuals, companies or investors who purchase foreclosed properties and sell them are not eligible for this exemption.”

(November 6, 2009)

Q.  Can a buyer have a provision in their offer on a short sale that says the seller cannot submit other offers to the lender until the lender has decided on the buyer’s offer?  What happens if the seller gets three such offers, each with the same clause?

A.  Sure the buyer can have such a clause.  The question is what will happen if they do?  Short sales are seriously misunderstood and difficult transactions.  There is tremendous ambiguity and uncertainty for both the seller and the buyer in a short sale.  The seller wants to avoid foreclosure and may not care much about price.  The buyer wants a deal.  Neither needs the uncertainty associated with an ongoing bidding war conducted by serial offers being presented to some distant, unresponsive, disinterested, overworked employee of a troubled lending institution.  The clause you reference is just the kind of thing you’d expect a buyer seeking to reduce uncertainty would come up with in such a dysfunctional market.

Whether a seller can or should accept an offer with such a clause depends on the situation.  In a short sale, offers are going to be contingent on the seller getting the lender’s consent sufficient to clear title.  That means two agreements.  One is the real estate deal between buyer and seller.  The other is the agreement between the lender and the seller regarding the seller’s debt to the lender.  Making the real estate deal contingent on the seller/lender agreement doesn’t make the lender a party to the real estate deal itself.  The seller therefore retains the right to accept or reject any offer on any terms.  Retaining a right doesn’t, however, mean the seller can do whatever they please.

Whether a particular seller should (normative question) accept an offer with such a clause depends first on the seller’s position.  If there is a chance the lender will demand a personal note for the deficiency, or the seller’s taxes will vary with the deficiency, the seller may have no reason to accept such an offer.  On the other hand, if time is short and the size of the deficiency doesn’t matter that much to the seller, they may like the idea of one offer.  It is, in the first instance, their call. The concern, of course, is that accepting such an offer may somehow defraud the lender or involve the agents in misrepresentation.  Everyone is, and ought to be, a little paranoid about lender fraud after it brought down the whole real estate market.

Fraud and misrepresentation by silence require hiding material information.  A seller negotiating with a lender regarding the seller’s debt to the lender owes the lender the duties of good faith and fair dealing. They cannot hide information from the lender that would be material to the lender’s decision regarding the debt.  Here, that means they could not deliberately hide subsequent better offers without the lender’s knowledge.  In this case, however, that is not a problem.  If the seller accepts the offer, the single offer submission term will be contained in the offer forwarded for the lender’s approval.  If the lender doesn’t like that approach all they have to do is say no.   Of course, that may take a month or two and by that time the seller may be foreclosed, but that just takes us back to the normative question of “should” the seller accept such an offer.

The “two agreement” nature of short sales means the seller must consider both their own needs and their duty of good faith and fair dealing to the lender.  Their own “needs” means answering a context-specific normative “should” question.  Once the seller has that answer, the issue becomes their obligation to deal honestly and fairly with the lender.  That can be done just by submitting the offer with the “one offer clause.”  It could be done by working with the lender ahead of time to determine how to handle such things.  That can be done by phone and confirmed by email.  Remember, on the seller/lender side we are talking about disclosure of material facts relevant to the seller’s debt to the lender.  All that means is not hiding important things from the lender.  The single offer presentation clause is actually an easy one because the disclosure issue is taken care of by the provision being presented to the lender in the offer.  It is secret procedures like unilaterally deciding to take backup offers and submit them serially to the lender without the lender’s knowledge that may cause real problems.

Alright, so what about the multiple offers all with the same single offer presentation clause?  It’s the same thing.  First the seller deals with the offers as offers.  A seller with multiple simultaneous offers will normally reject all offers and ask each buyer to make their last best offer.  It doesn’t matter if the buyers come back with last best offers that all contain the single offer presentation clause.  At that point, the seller will (assuming it is in their interest to accept any offer with such a clause) simply accept the best offer and forward it; just like they would had they received only one offer.  It is just an application of how to deal with multiple offers coupled with how to deal with short sale negotiations.  For more information, you should read the new “Dealing with Multiple Offers in Short Sale” section of the Oregon REALTORS® Risk Management Toolkit.  Contact me at kathryn@kjkproperties.com if you’d like a copy.

As the owner of real estate assets that have been used and abused by the current market, I have had the opportunity to evaluate my long term goals.  I have always used the business mindset with the belief that my rentals can pave the path to retirement down the road.
 
Have you evaluated your own real estate holdings?  Are you the owner of a house you would rather see “sold?” Are you a landlord by default?  Here is a thought – try renting the assets with a concurrent lease option.  Who is it best for? This fits an existing investor looking for income, and anyone with a “due on sale” clause that has considered selling on contract.
 
There are many benefits to concurrent lease options, but they are not for the faint hearted.  If you have a business mindset about owning a rental, this option could be for you.  Contact me for a full article on this topic.

For more information and a private consultation on how to use your own real estate assets to your benefit, please contact me.  We can discuss value, reasonable rents, concessions, capital improvements, and the prospect of increased cash flow with a lease option.  The best business person does their due diligence and makes wise decisions based on facts.  Now is the time to evaluate your real estate holdings with a long view.

I am a renter coming to see your home for rent. When I am inside the property I want to be able to look around without you crowding me.  How will you know this?  I will turn my attention to the property and will not be engaging with you.  I may walk away from you when I am inside the unit to “take charge” of my own direction without being led.

What should you do as the owner?  Observe my body language and let me look around on my own.  Perhaps comment that you are going to do a few things and will be available for questions.  This is a great time to change bulbs, sweep the floors, shake the entryway rug, etc.

When I have come back through and am ready to head out, ask a few open questions about the property such as:

Are there features you find appealing?

Can I tell you more about the parking, storage, amenities?

The home has electric heat, public water and public sewer.  The garbage is paid the owner’s

responsibility.

Perhaps I have some objections to the electric heat and I say: I don’t like electric heat; I have heard it is expensive.

How would you respond?  A reply could be “the heat is zonal electric and very consumer friendly.  You don’t have to heat the entire house like with gas or oil heat.  This can be a great cost savings, as you are in charge of how much or little you use.  Gas and oil prices have increased over the years and it is not uncommon for electric to be comparable.  Would you like me to check the total electric bill for the prior year and see if the past resident will share any usage patterns?” 

This invitation could engage me.

What if I have other complaints about amenities?  Perhaps I mention that there are not washers and dryers in the home. 

Try this response:  “we decided that because many renters have their own washers and dryers it would be better to keep the rent a bit lower and not provide them.  We could look into the cost of providing them at a higher rent, would you like us to do that and get back to you?

When the visit is almost over, is that when you begin to ask for the application?  It is probably a better idea to always assume they will be applying and phrase your comments accordingly.

“Let me give you my card.  I will be available this afternoon and all day tomorrow to collect applications.  Our screening company screens seven days a week.”

Give it about 24 hours and then do a follow up call to see where the resident stands.  Ask questions and see if there are more concerns you can help to resolve.  Don’t be afraid to ask for the application!

These simple tips are great for home buyers as well.  I would employ these strategies at one of my open houses any day.

For more tips like this, great landlord education, or to search for homes and rentals, visit my blog or monthly meetings at:  www.landlordstudyhallblog.com.  My group Landlord Study Hall meets the 2^nd Wednesday of most months at All Saints Episcopal Church at 4033 SE Woodstock Boulevard.  We have been meeting over six years and have a well informed group of rotating speakers.  If you or someone you know needs to buy or sell a home they can reach me several ways:

e: Kathryn@kjkproperties.com

Twitter: catincluded

Facebook: Kathryn@kjkproperties.com

P: 503-997-9035

Kathryn King, KJK Properties, 1603 NE 16^th Avenue, Suite A, Portland, OR 97232.

I look forward to hearing from you soon.

Margaret could choose to pay additional to the principal of the loans to pay them off at a 15 year amortization during the time she is earning a steady income.  At the time of her retirement, Mrs. Choo places the properties for sale with a broker specializing in land sales contracts or mortgage and trust carried by an owner. 

Seven buyers are found with attractive terms to Margaret.  The down payments total $220,000, which she is able to invest with her financial advisor in the stock and mutual fund market, and the payments from the land sales contracts have in turn created a stream of income to her of a total amount of $10,000 per month. 

Mrs. Choo graduates her sales clauses in each contract so that she is paid off in graduated steps, according to the wishes of her tax advisor; likely in step with the reduction of her other taxable income or to offset anticipated future losses.  The money from each satisfied contract is invested with her financial advisor.  The additional money is invested to create an additional stream of interest income and increased principal investment in the account.

 Land sales contracts are a vehicle to consider when you desire a built in income and a better interest rate than other investments may provide. 

In Oregon it is not uncommon to use a note and trust deed in lieu of a land sales contract in order to create a similar stream of income on a sold property.  The process for foreclosure is different, as a trustee is given the “power of sale” in the event that the Vendee defaults on the payments.

 When selling on contract it is possible to graduate the interest rate as a hedge against inflation.

 When you have sold on contract you have shifted the burden of maintenance to the buyer.

 It is not a type of sale that should be considered if the desire of the seller is to participate in a 1031 exchange.

 It is recommended you seek legal advice to determine which instrument may best suit your situation.

If there is a current loan on the property it is important to speak to an attorney to determine if this is an option for you.

You are a gainfully employed first time home buyer more interested in investment property than a home.  You would like to live in one side of a duplex and rent out the other side.

How should you go about it?  Obtain FHA owner-occupied financing, with 3% down, or by using a non owner-occupant, but related, co-borrower.  This scenario allows a gift down payment from a relative.

What are the pros and cons of this scenario?  Living by your tenant is not always easy.  Could be the best way to cash flow in the short term.  Live in for 2-5 years, save additional down payment, rent out owner unit and buy another investment property.