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Here are some practical tips I have learned from doing lease options over the past 20 years. Lease options are great, except when the seller decides not to live up to their end of the bargain.
Sure, you can always sue the seller to force them to sell you the property, but this can cost you thousands of dollars in legal fees and take years to accomplish in our over saturated legal system. You always need to position yourself in a better position if you want your option to be protected. Here are three good ways to protect your option:
1. Record the option. If your option was signed before a notary, you can record your option in the public real estate records. This will give the world public notice of your interest. If the option was not notarized, you can sign an affidavit called a "memorandum of option" and file it at the Registry of Deeds in your county. Keep in mind that this does not create a lien, it only creates a "cloud" on the title do the owner can not sell it from under you.
2. Escrow the deed. If your seller has died or disappeared, you will have a big problem getting him to sign a deed. An escrow should be created up front in which a title company or attorney holds an executed deed. When you are ready to exercise, you simply tender the money to the escrow agent (which can be your or the owner’s attorney) and collect the deed.
3. Record a mortgage. Typically a mortgage is recorded to secure payments on a promissory note. A mortgage can be recorded to secure performance of any agreement, even a purchase option. You as optionee (buyer) will now be a lien holder, in the same position as a secured lender. If the seller refuses to sell the property, you foreclose. Now the SELLER has to go to court to protect himself, rather than the other way around.
Here are some tips to prevent a tenant from asserting equitable mortgage. On paper you should make everything look like a landlord tenant relationship, but you operate the transaction like a Buyer – Seller relationship.
1. Use separate agreements. Give your tenant a lease and a separate option agreement. Make certain the lease does not refer to the option. More than 75% of the time, the tenant loses his paperwork. You don't show any option agreement to the court until the judge asks for it.
2. Keep your term short. Do not give tenants more than a one-year lease option at a time. If the tenant insists on three years, give him a one year with two rights to renew. Draw up brand new leases and option agreements each time he renews. If you give a cumulative rent credit, raise the purchase price each time.
3. Take a security deposit. Sellers don't take security deposits, landlords do. Make it look like a landlord/tenant relationship, even if the security deposit is small.
4. Make sure you pay the taxes and insurance. Do not let the tenant pay the taxes and insurance. This makes it look like a sale.
5. Don't give large rent credits. The more "equity" the tenant has, the more likely a judge will favor an equitable interest assertion. My rule of thumb is that if you choose to give a “rent credit”, it should never exceed 35%. I know many gurus tell you to give 50% or more in rent credit, but I believe that the more rent credit you give the more equitable interest exposure you create for yourself.
I hope these tips help you on your next lease option transaction.
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To your success,
James Gage
