Although being a real estate investor requires a conventional approach to investing, there are some scenarios where these conventional options — such as using private money lenders or traditional mortgages — may not work. Thinking outside the box and using creative methods of financing can secure a profitable deal at times when a conventional method can’t get the job done. One of these creative methods is known as a “subject to”.
This strategy can be an effective method if you are just starting in real estate investing. Or, if you are already an experienced investor, it is another investment strategy that you can add to your toolbox.
This form of creative financing is the topic of the WealthFit course Subject To: The Mortgage Takeover Method for Investing in Cashflow Properties, taught by Angela Gregg, the founder and CEO of Sturdy Foundations, Inc, a real estate investing, construction and solutions company located in Honolulu, Hawaii.
In this article, we’ll explain a few of Gregg’s tips about how to effectively use this unique method of real estate investing.
What Is A Subject To Real Estate Deal?
Let’s first define what a subject to real estate deal is. It is purchasing a property subject to the existing mortgage that is already in place.
With a subject to, you are not formally assuming the loan; instead you are taking on the responsibility of making sure the mortgage is paid on time until you renovate and resell the property.
In this scenario, the terms of the note that were initially created with the lender stay the same — this includes the name in which the loan was purchased.
History Of The Subject To Real Estate Deal
Maybe this is the first time you’ve heard of a subject to. But it isn’t a new form of real estate financing.
In the 1950s and 1960s, it was a common practice: homeowners would sell their property to a buyer with insufficient credit subject to the existing mortgage to purchase on their own.
Over time, banks evolved and made it easier to buy houses with personal credit. Because of this, the subject to became less popular. But it can still be used today on listed and distressed properties because there is nothing illegal or unethical about buying a property subject to.
Here are a few advantages for everyone involved in the subject to the process, along with the legal ramifications.
Advantages For The Investor
- You don’t have to qualify for a loan
- You have the advantage of the owner’s lower interest rate
- You have instant ownership in the home
Advantages For The Homeowner
- Provides an instant solution to their urgent problem
- It can improve the homeowner’s credit rating (because you are making their payments)
- Quick process
- There are no closing costs, no fees, and no repairs
Advantages For The Lender
- The loan is made current and payments are made on time
- A possible foreclosure is avoided
Legal Ramifications Of A Subject To Real Estate Deal
First and foremost, use a trusted real estate attorney throughout the process of the deal to protect you and the homeowner. Also, ensure that all prospects of the subject to is in writing.
- Contracts are state-specific, so ensure that you are using a contract for your state.
- Almost all mortgages have a due-on-sale clause, giving the lender the chance to call the loan in case of a sale or transfer. In this scenario, the bank may require that the loan is paid in full in 30 days. Lenders rarely enforce this clause because they want regular payments and not foreclosures. However, it is still important to have a backup plan. Again, while the loan being called due is highly unlikely, it is possible.
- There is safety in using a third party to hold funds and make mortgage payments. You can also let the homeowner have limited access to account to see that mortgage payments are being made on time.
- A possible foreclosure is avoided
- You will need to open a new insurance policy, naming you or your company as the insured. This limits liability.
- Some state realtors can be fined for performing subject to sale. Make sure your realtor is educated in the process and this type of contract.
When To Offer Subject To
You can also offer use subject to if you are considering investing in the following properties:
- Homes with existing equity
- Homes with minimal equity, but make sure you are happy with the ROI
- Multifamily homes with cashflow are also ideal for this type of deal
- Rehab properties where existing homeowners cannot afford to make the repairs
How to Present Subject To
When presenting a subject to deal, keep in mind that the motivation of every home seller may be unique, so you have to be understanding of their needs. You have to determine if the subject to real estate deal is the best choice for a seller.
If you are presenting “subject to” to a seller, present it as one of the options.
You should explain to the seller that, in some situations, selling through traditional or conventional channels can actually be detrimental to their best interest. Their home may stay on the market for a long time or the buyer may need considerable time to arrange to finance. This also means paying commissions and holding costs.
Also, since the buyer will be responsible for making the mortgage current as well as making the payments on time, this can improve the seller’s credit score.
Your conversation can be along these lines:
“Our company has an amazing program for sellers like you. We will pay off your mortgage, and you don’t have to worry about defaulting on your loan. Also, with this program, you can improve your credit score, which will help you in the long run.”
Then you can inform the seller about the legal ramifications of the transaction.
It is important to be open, transparent, and honest and answer all their questions and concerns truthfully.
Due Diligence Checklist
When offering subject to, due diligence is vital. Here is a brief checklist to ensure that you are protected in the deal.
You should research state laws. This is because the laws of different states tend to vary with regard to how they deal with subject to real estate transactions.
You should research the loan terms and look for items or clauses, such as prepay penalties. Consider whether the loan is fixed-rate or adjustable and whether or not the loan has been modified. You should also determine if insurance and taxes are included in the monthly payment.
Check the utilities and determine if you have to pay any past balances. If there are significant past balances, this can factor into how much cash you will need.
Creating The Contract
A subject to real estate contract should be created with an attorney present as well as a live notary who can authenticate the documents.
Subject to contracts are legally binding and enforceable in a court of law. Record the contract in a district court where the relevant property is located.
You will also have to make sure that your seller signs a limited power of attorney as well as an authorization to release information form. This form will allow you to call the lender and inquire about the loan directly.
You may need significant cash for your “subject to” deal if you need to make back payments before going subject to in the event of a foreclosure, or if you have to make considerable repairs before putting the property on the market.
When you begin making payments, ensure that you:
- Have a trusted title company on your team
- Set up an escrow account or a separate bank account and have your title company make the payments from that account
- Set up insurance and hazard insurance policies in your name as the new owner. This is because old policies are voided when the title deed changes hands
How to Use a “Subject To” to Invest in Real Estate
A subject to is another creative method of financing that savvy real estate investors have in their toolbox.
There is nothing illegal or unethical about buying a property subject to. Before you enter into a subject to real estate deal, it’s critical to understand and weigh each advantage and legal ramifications and speak with a real estate attorney.
If you want to dive deeper into the intricacies of the subject to, watch “Subject To: The Mortgage Takeover Method for Investing in Cashflow Properties”, where you will learn:
- Everything there is to know about subject-to financing, including what it is, why to use it, how to use it, and when to use it
- How to ease the concerns that homeowners might have about subject-to financing
- The nitty-gritty details of contracts and legality of this financing solution, so that you can keep you and your money protected
Cash Lambert is WealthFit's Managing Editor. He is the author of Waves of Healing: How Surfing Changes the Lives of Children with Autism.