May 2nd, 2016 4:16 PM by Sam Kader
Lease-to-own contracts (LTOs) and land contracts (LCs) are different legal ways to transfer occupancy of a property from an existing owner who does not want to occupy it to someone who does but cannot immediately qualify for the financing to buy it. Both options offer wannabe homeowners to occupy a house for a period during which they can improve their capacity for the financing to obtain a mortgage.
With an LTO, the new occupant becomes a tenant and the current owner becomes a landlord who offers the tenant an option to purchase the house within a specified period.
As an example, look at a house appraised for $100,000, a price a potential buyer finds acceptable but cannot afford right away. The renter/buyer has the right to occupy the house with an option to buy anytime within 18 months for $100,000 in exchange for a nonrefundable option fee of $1,500 and monthly rent of $900 for 18 months. If she cannot qualify for the mortgage within the 18 months, her option lapses and she must vacate.
Benefit for potential homeowner: The LTO offers an opportunity to bet on herself. To become a homeowner, she must either improve her credit score or accumulate the funds required for a down payment on a purchase mortgage, or both.
Benefit for home seller: The LTO offers a better price than is otherwise available. If it turns out that the buyer cannot complete the transaction, the seller retains the option fee and rent, and recovers the house, perhaps to offer it again to another.
Price changes that occur during the option period do not benefit the wannabe owner. If the house declines in market value, a purchase at the option price becomes less attractive. If the house appreciates in value, purchase at the option price becomes more attractive, but the capacity to make the purchase will not increase. The maximum available mortgage amount will be based on the option price, not the current market value.
The LC deal
With an LC, the new occupant purchases the property with financing provided by the seller, who becomes a lender. But legal title does not pass until the loan is paid off, which requires the new occupant to refinance.
As an example, under the LC, the wannabe buyer pays $100,000 for the house, including $1,500 in cash as a down payment, with the seller providing a loan for $98,500. The monthly payment of $900 covers the principal and interest plus taxes and insurance, with the loan balance of $96,658 after 18 months due at that time. If the wannabe buyer cannot refinance, the owner does not transfer legal title and can take steps to have him evicted.
A key difference between LTO and LC deals is that completing the first requires a purchase mortgage while the second requires only a refinance of the mortgage granted by the seller. Closing costs are lower on a refinance, and the down payment is smaller. The $1,500 that went into the seller’s pocket as an option fee on the LTO became buyer equity on the LC.
Furthermore, since the equity required on the refinance is based on a current property appraisal, an increase in market value during the 18 months will reduce and could even eliminate the need for the buyer to come up with additional cash. In the example, a lender imposing a 10 percent equity requirement on refinances would refinance the entire $96,658 balance after 18 months if the market value of the house had risen to $107,500.
Current wave of LCs
As a delayed consequence of the financial crisis and the marked rise in foreclosures that followed, large numbers of homes that had been in foreclosure are now being marketed with LCs. Rising home prices in many areas are encouraging this process, and many wannabe homeowners of modest means are being offered homes at prices that look like great bargains. How potential buyers of foreclosed homes should protect themselves against disappointment. This is his advice:
• Have a title company or closing attorney verify that
a) there are no senior liens on the property, and b) your contract of sale has been recorded. This will cost about $150, but it eliminates the risk of your having to pay off the seller’s debt, and it positions you for the refinance you will need to pay off the seller.
• Find a way to make the monthly payment before the due date every month. This eliminates the risk that the seller will call a default if your payment is one day late in order to take the property back and sell it to someone else.
• Make your payments to the seller in a way that can be easily documented for example, by check.
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