house lawyer

In buyer's market, seller-financing might suit owner getting few offers

By Harvey S. Jacobs
Saturday, June 12, 2010

Dear House Lawyer:

I am a 60-year-old widower with no children. I own my single-family home with no mortgage outstanding, and I'm gainfully employed in a secure government position. I plan to retire in about five years. I have lived in my home for the past 20 years, but now find it to be more burden than haven. I am planning on selling it and renting a nearby townhouse condominium. My goal is to reduce the day-to-day maintenance chores associated with an aging single-family home. I have read much of the conventional wisdom about home selling and had three Realtors provide me with comparative market analyses. I listed my home with an active, successful local Realtor at what we thought was a competitive price. But it has been on the market for nearly six months, and I've received only two low-ball offers. I reduced the price twice.

I've been told the banks are causing a problem. There are a lot of self-employed folks with cash who cannot get mortgages. I am thinking about offering my house for sale with 70 percent seller financing. My hope is to get it sold for full price, earn 5.5 percent interest on my money and, if the buyer defaults, get my house back down the road. I can do a 5-, 10- or even 15-year balloon mortgage based on a 30-year payoff schedule. I have been told that I am not obligated to accept any buyer; if I don't like their credit, I say no.

I believe offering seller financing will give my listing an edge and might get some action. I am thinking of insisting that the buyers prepay the first year of homeowners' association dues and an estimated water bill because I understand that these items can become liens against the property. I am also planning to ask the buyers to pay into an escrow account each month to cover the semiannual real property taxes and the annual hazard insurance premium when they become due. That way, I can ensure that these critical bills are paid because I will be paying them from the escrow account.

What's your opinion?

I strongly endorse this seller-financing approach, as long as you get a substantial down payment. And, since you indicated you will be getting 30 percent down, that should be sufficient. This plan will also provide you a regular monthly source of funds for many years, depending on how long you are willing to wait to get all your money, plus interest. Although the principal portion may or may not be taxable (because you are selling your principal residence, you are entitled to exclude the first $250,000 of capital gain from your taxable income), the interest portion of each payment will be taxable to you. I recommend preparing an amortization table to show you and your buyer how much of each payment is principal and how much is interest. Amortization tables are available at sites such as Bankrate.com.

Seller financing is an excellent means of obtaining the best price for your home, but it is not without risk. One concern is that a 5.5 percent interest rate might look fine now, but rates can fluctuate wildly. Ideally, you wouldn't want to hold that 5.5 percent note for more than a few years. If you think interests rates will fall, you should consider imposing a prepayment penalty in your promissory note. Prepayment penalties are governed by state laws.

If you think interest rates will rise, consider offering to take back an adjustable rate mortgage. An ARM is a mortgage that has a fixed interest rate for a certain period of time, after which the rate changes at set intervals. In your case, assume that the 5.5 percent interest rate would be fixed for five years. At the end of the first five-year period, the interest rate would adjust annually. This adjustment feature protects you should interest rates rise five years down the road.

The adjusted interest rate is a function of an index (assume the prime rate as reported by The Washington Post) plus a margin of one to three percentage points, for example. On the adjustment date specified in your loan contract, you would add the margin to the index to get the adjusted interest rate. You might want to consult a financial planner or stockbroker to assist you in determining which index and margin to use.

Make sure the promissory note that the buyer signs is fully negotiable, that is, transferable to another party. There is a fairly brisk market in these types of seller-financing notes. Once the note is seasoned, with the buyer having made regular payments for six to 12 months, you will be able to sell it (albeit at a discount) if you ever want the pile of cash. You will also want to make sure the loan is secured by having your buyer sign a deed of trust. Have that deed of trust recorded in the land records office as a lien against the home. That way, if the buyer defaults, you can foreclose and get the house back.

I'd recommend insisting on an automatic debiting feature so monthly payments are taken from the buyer's checking account and deposited into your separate "My Old House Note Account." That way, you can go online every month and monitor the payments.

You should do a credit check with all three credit-reporting bureaus and obtain your buyer's FICO score from Myfico.com. Prior to the closing you should insist that the attorney conducting the closing provide you with a closing-protection letter from his title insurance underwriter. The letter protects you against any problems with the settlement attorney.

At settlement, make sure you obtain a lender's policy of title insurance at your buyer's expense. Finally, have the buyer pay all credit report and closing costs, including the expense of having the promissory note and deed of trust prepared and the deed of trust recorded.

Harvey S. Jacobs is a real estate lawyer in the Rockville office of Joseph, Greenwald & Laake. He is an active real estate investor, developer, landlord and lender. This column is not legal advice and should not be acted upon without obtaining your own legal counsel.


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