Monday, October 22, 2007

A Review of the Carleton Sheets “No Down Payment” Course

“You can buy real estate with no down payment!” You’ve seen the infomercial a hundred times on television over the years. Me too, so I decided to pick up a copy of the Carleton Sheets “No Down Payment” program just to see what my competition offers.

Related Information

Intro to Real Estate Download

Generally, I don’t do reviews of other authors, since it would hardly be unbiased. Frankly, how could you take the advice of someone reviewing a product when they sell a competing product? But, since Carleton Sheets is the most prolific figure on the airways, I thought I would give my general impressions, since people ask me all the time, “what do you think of Carleton Sheets?”

First, keep in mind that I do offer information on the topic of real estate investing. My review is based on my personal experiences in real estate, both as an author/teacher and as an investor. Second, understand that given my own biases, I will try to be as fair as possible, given that I have little to gain or lose by this review.

OK, on to the review...

I purchased Carleton Sheets’ course brand new from his website. The first thing I noticed was that the price of the course was not readily apparent. It’s advertised as $9.95 on a “trial” basis. Of course, I immediately assumed it was much more, and that I need only pay $9.95 right now, and that my credit card would be charged later for the balance. I’ve sold a few of own programs on this basis, so I am familiar with how it works. The problem is, not everyone is familiar with this “pay later” program, so it would help to know NOW what the full price of the program is up front. The fact is, I wanted to pay it in full now, but the website didn’t give me any choices (or, if it did, at least it wasn’t very clear). After some poking around, I learned it was four additional monthly payments of $74.99. So, all in all, it’s about $310, plus shipping.

Let’s start with price... $310 is a lot of money to some people, just a drop in the bucket for others. Spreading out the payments into four months makes it a LOT easier to swallow for the “financially challenged,” who would rather pay $10 now and $75/month for four months than $200 or so all at once. My feeling is that if you buy the course and buy just ONE house as a result, the cost of the course is inconsequential. On the other hand, if you paid $10 for a paperback book and did nothing as a result, you’ve wasted your money. My point is that there is no “magic bullet” — you’ve got to apply some hard work to anything you learn. If you have very little extra cash and the willingness to hustle, then Carleton’s offer is a good one for you.

I received my package in less than a week, which is good customer service. The packaging is professional and well–organized. The target customer for Carleton’s course is the rank beginner, so there’s plenty of beginner information. I particularly liked the way the package is organized, including a “cheat sheet” — first do this, then do that. I’m thinking of including something similar in my materials, too. But, since I am like most people, I ignored the instructions and started reading through the manuals and listening to the audio CDs in my own way.

The manuals are audio CDs are color–coded, so you can easily cross–reference the topics. The audio CDs follow the written materials closely, but not word for word. This is a good and bad thing... if you don’t like (or don’t have time) to read, the audio CDs are very handy for your commuting time in the car. But... the audio CDs are not from “live” seminars, so it is — how do I put this politely — BORING! Carleton Sheets isn’t exactly Tony Robbins, so it’s pretty tough to stay awake while listening (very dangerous while driving). Most of the materials I offer are recorded from live seminars, which means it is more DYNAMIC and thus easier to listen to. Also, a live seminar gives you a different angle than printed material — anecdotes, differing explanations, more comments and thoughts, responses to audience questions, and so forth. These types of things add a lot to the learning process.

I like the fact that Sheets starts with some very basic tips and thoughts on real estate investing — setting goals, improving your credit, setting up shop, etc. He also adds a LOT of other topics, such as keeping a positive attitude, mobile homes and tax liens. In fact, Sheets adds so many topics to the material that I often find myself thinking, “is this just filler, or is all this stuff really necessary to buying a home with no down payment?” I’m one of those guys who would rather see LESS VOLUME, but since Carleton doesn’t use the ancillary topics as a substitute for the main ones, we’ll let him slide on this. In short, don’t let the shear volume of topics overwhelm you — go over the basic core material two or three times, then come back to the other stuff if you choose at a later time.

The core of the program is buying houses with “no down payment.” Carleton goes into dozens of techniques for buying with little or no cash down. Personally, I thought many of them were just “filler” techniques, that is, ideas that would work 1 on 100 times. All you really need is a half dozen ways that work consistently, which he did provide. But, Carleton kept saying “offer the seller a higher than market interest rate to convince him to take your owner financing offer.” I’ve got a better idea — focus your offers on more motivated sellers who would take ZERO interest on a seller carryback. There was a large section devoted to lease/options, too, and Carleton had a few points in there that even enlightened a seasoned pro like me!

So, at this point, you’re probably getting the hint that I liked Carleton Sheets’ materials. In short, I did! For $310 paid over four months, I think there’s a lot of info there for the money. If you are have already purchased a few of my courses or have been investing for a while, you won’t find much in the materials that are useful — this is a VERY BEGINNER course. So, if you’ve never been to a real estate seminar or read any books and are looking for a wide variety of information you can listen to in your car, this would be a good bet. Also, if you could combine Carleton’s course with my “Intro to Real Estate” audio download.

But, I did have a few basic problems with Sheets’ course. First, the legal forms included are not on CD. My courses all include a legal forms CD so you can edit the forms. I’m often told by my customers that the forms CD alone is worth the price of the course. Frankly, Carleton’s forms are pretty generic anyway, although I did like the fact that he included at least ONE version of seller–slanted and buyer–slanted forms — the purchase contract. In fact, I was very impressed at the way he called the PRO–buyer contract a “purchase” agreement and the PRO–seller contract a “sales” agreement to make it easier to remember. I did that in my courses several years ago because I found that people often got the forms backwards. Great minds think alike!

My second complaint is that Carleton spent too much time focusing on the techniques rather than the context of how “nothing down” concept applies in your overall investing — when it’s useful and when it’s not, and when it’s DANGEROUS. I recently did a teleseminar in which I discussed this very topic. CLICK HERE TO LISTEN TO THE REPLAY

Related Information

Intro to Real Estate Download

In summary, I think Carleton Sheets is doing some very good things, which explains why he’s been in business so long. He offers a very reasonably price product that is a good start into the real estate investing business. While it doesn’t offer every detail of how to implement every technique, it will definitely set your mind in the right direction, which is JUST as important. I’ve met MANY people who got their start from Carleton Sheets, and while it doesn’t have all the details that my program does, it certainly is reasonably priced enough to get you started.

“Big Brother” is Watching YOU! New (BAD) Legislation Coming Your Way

Well, it seems that with everything you do right, there’s always someone else doing it wrong, do it badly, or doing it illegally. Enter Big Brother... the “well–intentioned” legislator who wants to get re–elected by passing a law that protects the innocent from bad people or from their own stupidity.

What am I talking about? Several states have passed or are about to pass a rash of laws that will make being a real estate investor a very difficult vocation. While I do understand the need for SOME guidelines and disclosures from the government to make sure that people are making informed choices and are protected from bad people, these laws are THROWING OUT THE BABY WITH THE BATH WATER and will likely cause financial harm to the real estate markets in those states.

The following is a review of some recent laws and bills that are pending or have passed.

IT IS IMPORTANT THAT YOU READ THIS EVEN IF YOU ARE NOT IN THESE STATES. When it comes to laws like these, it’s "monkey see, money do", resulting in the domino effect. Your state can be next, so pay attention. Visit you state’s website and review pending bills. Form a local political action committee. Be involved in the political process. If you are in one of these states, call, fax and email your representatives. Email all your friends and business associates. Picket in from of the state buildings. Contact your local news people. If you sit silent, you have no right to complain!

Texas – Senate Bill 629 – PASSED

This bill is an amendment to an earlier law passed in 2001 that regulated installment land contracts. The current law calls these "executory contracts" and requires certain disclosures, most of which are not big deal. However, the penalties for non–compliance are SUBSTANTIAL and bear no relationship to the supposed harm the consumers would bear if the disclosures are not followed. It’s basically a windfall for buyers who find a good lawyer to hammer a technicality that most investors are not aware of.

SB 629 takes it up a notch classifying lease/options as "executory contracts", the same as land contracts. This is DEADLY for investors who want to keep the tax benefits ownership when selling on lease/option and taking advantage of capital gains rates. If Texas calls a lease/option an executory contract, it makes it a SALE, thus having a negative tax impact on the seller who may want to defer his gains through a 1031 exchange when the tenant exercises his option to purchase.

And, we’re just getting started...

The bill further disallows an investor from selling a property by lease/option OR land contract if the seller has an underlying loan on the property without that lender’s written permission. Since few, if any, investors have free and clear properties, this would effective ELIMINATE the process of buying a property, financing it, then reselling on a lease/option or land contract.

This is BAD because it hurts not just investors but ANYONE who has a house that they want to move. Builders often sell properties on a "rent–to–own" basis, and now will be prohibited from doing so if there is underlying financing on the property. What if you do a fix–and–flip, but are unable to resell the property for cash? Maybe the lease/option would be the solution so you can cover your mortgage payments while still getting a sale? It won’t be possible in Texas if this bill passes.

And, it gets WORSE!

SB 629 states that you cannot sell a property under an executory contract unless you have title to the property. That means you cannot do a sandwich lease/option in Texas – PERIOD.

The bill also has a bunch of disclosures and regulations on lease/options, none of which are objectionable.

Read the bill here: Senate Bill 629

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NORTH CAROLINA – HOUSE BILL 725 – (STILL PENDING)

House Bill 725 is a push from the North Carolina Attorney General’s office, which has been on the rampage against investors for some time. The AG’s office claims to have "hundreds of complaints" from people who were hurt by investors who bought properties "subject to" existing mortgage loans, then defaulted. I find it very hard to believe that more than a few complaints were ever filed. From the way the bill is written it’s clear they just don’t understand how these transactions work.

This bill is targeted against the investor who buys a property subject to an existing loan, the resells the property by lease/option or land contract to a consumer. The bill requires a number of disclosures to all parties involved, some of which are fine and some of which are absurd and irrelevant.

The proposed bill requires the seller to get express written permission from his lender before transferring a property subject to an existing deed of trust, which will never likely happen. And, even if it were possible, the time frame it takes for a seller to get his lender’s permission while he is in foreclosure is wholly impractical. This will hurt the seller who is in foreclosure and seeking to simply "dump" his property for whatever he can get. If the investor can cure the seller’s back payments and/or negotiate a short sale with the lender, everyone walks away happy. If a seller has no options, he is going to walk away from the property and the bank will have another REO. Everyone loses.

Now, admittedly, some dumb or unscrupulous investors have taken deeds from sellers, promised to pay, then defaulted, leaving the seller with the short end of the stick. The right thing to do is require disclosures so that the seller enters into the deal KNOWING THE RISK. Adjustable rate mortgages are very dangerous, too, which is why R.E.S.P.A. requires disclosures. The government didn’t go off the deed end and outlaw ARM loans.

Curiously, the bill exempts real estate agents from the law, which means a licensed agent could theoretically buy a property subject to an existing deed of trust without lender permission and without the same disclosures as a non–licensed investor would be required to give. The suspicious side of me thinks that the real estate agents are also behind this bill, trying to corner the market on investing or requiring an agent’s assistance on these deals so they can profit.

And, the most laughable portion of the bill addressed people like me, requiring all educational seminars to include a copy of the new law in our materials. I suppose the drafters of this bill failed to examine the first amendment, which prohibits the government from restricting the content of free speech.

Read the bill here: House Bill 725

MARYLAND – HOUSE BILL 1288 – (PASSED)

House Bill 1288 is aimed at foreclosure investors dealing with sellers in foreclosure.

The bill targets two types of activities, "Foreclosure Consulting" and "Foreclosure Purchasing". A "consultant" is someone who apparently charges a fee to give advice to the homeowner and/or help him to negotiate with his lender or get a new loan. A consultant must disclose his services in writing and offer a right to cancel that agreement at any time. The consultant cannot buy the property from the homeowner, nor can one of his "associates" (not clearly defined). The foreclosure purchaser must also give certain disclosures in writing, including a ten–day right to cancel the contract. This means you cannot get a deed without giving a homeowner a 10 day "cooling off" period. This is not necessarily a bad idea, but it may prevent a homeowner who is fighting a deadline from doing a last–minute sale. No matter how long the foreclosure process, most homeowners wait until the last week before taking action.

The final part of the bill deals with a foreclosure "reconveyance", that is, a deal wherein the homeowner stays in the property under a lease, reserving the option to repurchase the property from the buyer at a later date. I don’t particularly like these kinds of transactions, because they generally fail and they can sometimes be reclassified by the courts as disguised loans. On the other hand, many homeowners facing foreclosure have no other means to save their property, and in a free market should have the opportunity to engage in a transaction which allows them to try to save their home based on intelligent, informed decisions. This law would require the investor to give the homeowner 82% of the proceeds of the sale if the homeowner cannot repurchase the property, which makes it unfeasible for any investor to even bother trying to help the homeowner. In short, such a law would hurt more homeowners than it purports to protect.

The 22 pages of requirements are very technical, so you should review it in detail with a local attorney. House Bill 1288 – Full Text in PDF Format

COLORADO – SENATE BILL 06-071 – (PASSED)

The Colorado bill is being pushed by the Attorney General and the Colorado Public Trustee’s Association (Colorado’s foreclosure process involves a public official, the county Public Trustee). This bill is a watered–down version of the Maryland Bill, which will also regulate "foreclosure consultants" and "equity purchasers."

Through lobbying efforts, we have gotten the ear of the AG’s office to get some good amendments to the bill that should result in a sensible piece of legislation. Like the Maryland bill, the Colorado bill prohibits a "consultant" or one of his associates from buying a property in foreclosure from the homeowner. The bill, as amended, better defines a "consultant" so as not to confuse such a person with a "purchaser" who will be buying the property, not offering the homeowner "advice for money". The bill is still in discussion and we are hoping to further refine some of the "reconveyance" provisions to make it fair for investors and protect homeowners from predators.

The bill also adds criminal penalties for violation of the law, which is certainly scary for the average investor who does not understand how to comply. If you are in Colorado expect a seminar this Summer to explain all of the nuances!

ILLINOIS – SENATE BILL 2349 – (STILL IN COMMITTEE)

The Illinois law is similar to the Maryland Bill, but takes it up a notch. The proposed bill would also apply to properties "in distress", that is, homeowners who are 90 days late, but no foreclosure has been filed. This is extremely dangerous because there’s no public filing until the foreclosure action has started, thus no way to know who is in default! Also, the Illinois bill would require an investor to pay off the seller’s liens before doing a foreclosure reconveyance, that is, you can’t take a property subject–to the existing loan and sell it back on a lease/option. However, you are not prohibited from taking subject–to and selling it to a third party.

The Illinois bill also contains the "82% of proceeds to the seller" provision, which effectively kills any intelligent investor from getting involved. Why would you want to buy a property and risk the homeowner defaulting, filing bankruptcy and hauling you into court over 18% gross profit? On the other hand, I can see the argument why it is patently unfair for a homeowner to lose a property with 50% equity for non–payment of one month’s rent, but these cases are rare. In any event, a court always has the equitable power to call a contract "unconscionable" where it sees fit. Using an arbitrary number like 82% may not be feasible when the local real estate economy is in the toilet and banks are selling properties at 60% of value or less.

In short, the government should leave the free market open for people to make deals that they wish to make, punish those who take unfair advantage, and require mandatory disclosures so people can make informed choices.

CONCLUSION

I have mixed feelings about these new bills... on the one hand, they are rash responses the side effects of a strong real estate market, discouraging investors from getting involved in deals and resulting in more properties going to the bank.

On the other hand, some of these bills provide "safe harbors" for investors that follow the letter of the law. Since there are really few laws that relate to "creative" real estate investing, providing detailed rules make litigation by a disgruntled seller or tenant/buyer more difficult. It’s hard to say, "you didn’t disclose X, Y & Z" when in fact the law only requires "A, B & C".

If investors in these states MAKE SOME NOISE by contacting their state representatives right away, a modified version of these bills may get passed, making everyone happy. And, if something comes up in your own state, get involved in the process before a bad piece of legislation puts you out of business.

I highly recommend doing the following:

1. Get involved early in the process. Find out who is pushing the bill in your state and why. Contact these groups and offer to assist in the legislative process by discussing practical effects of these laws and other alternatives.

2. Get other groups involved in the process. Community leaders, such as real estate investor associations, mortgage brokers associations, title companies, boards of realtors, etc. Remember, the banks do not want these foreclosure properties in their inventory, so they need investors bailing out properties before they go to sale.

3. Speak to your local representatives. State legislators are generally accessible, to call, fax, and even visit their offices. Let them know you are a voter in their district that has concerns.

4. Speak to the Press. The media is pushing stories about how people in foreclosure are losing their homes, but there’s two sides to every story. Talk with local newspaper, radio and television personalities. Write letters to the editor of your paper (click here for a good example).

5. Hire a lobbyist. The best way to get access to legislators is the good old fashioned way – MONEY. Lobbyists (also known as "Public Relations Experts") have connections with different law makers and can get you an audience to hear your issues. They can find out who is for and against particular issues, and who can either amend or "kill" a particular bill being presented. On the national level, the National Association of Responsible Home Rebuilders and Investors (www.NARHRI.org) has been active in about 8 states.

The most important thing is to get involved early in the process.

Realtor Community Under Investigation by the Feds

Until recently, the only option a seller had to engage a real estate broker was to pay a fixed–rate commission. Well, not really... commission are not fixed by law, they are fixed by custom. Or, are they really fixed at all? That’s the question the Justice Department is looking into.

Price fixing has been illegal in the United States for a long time. But, as a customary fashion, an industry often ends up looking like a “fix” because all the players want to look competitive. Hence, the “standard” 6% listing fee. Until recently, virtually every real estate broker quoted 6%, and if a broker advertised less than 6%, the community was in shock and often shunned him.

Buyer’s agency is also something relatively new, that is, an agent who represents the buyer. If the buyer’s agent brings a buyer to the table and the property is listed by a different agent, then the 6% commission is split, generally 50/50 or something like 2.8% to the buyer’s agent and 3.2% to the listing agent. Since most buyers are procured by the buyer’s agent, the listing agent’s role has been greatly diminished in recent years.

So, one day sellers started asked the question, “what do I need a listing agent for?” The answer to that question is simple... you need to get your property on the Multiple Listing Service (MLS), otherwise you aren’t likely to get it sold. After all, most buyer’s agents look to the MLS for properties for their clients.

Many listing agents smartened up by offering a limited–service product for less. The flat–fee broker simply places your property on the MLS for a flat fee, rather than a percentage of the sales price. In some markets, some agents are doing it for as little as $250. The buyer’s agent still gets 2.8% for bringing the buyer to the table, but the seller must coordinate the showings with the buyer’s agent, review the purchase offer and complete the sale without the assistance of the listing agent. The fact is, most real estate investors are (or should be) savvy enough to use do all of these tasks without the assistance of an agent.

SIDE NOTE: AGENT VS. BROKER VS. REALTOR

In most states, one must be licensed as a broker to list property. An agent works under a licensed broker. A realtor is a broker or agent who is a member of the National Association of Realtors. Most agents and brokers are Realtors, as well as members of a local board. Throughout this article, I use the term “broker”, “realtor” and “agent” synonymously.

So, what’s the problem? If you want full service, you pay 3.2%, and if you want no service, you pay just a few hundred bucks and do the work yourself. Sounds much like the stock brokerage industry, doesn’t it?

Well, it seems that the “gold old boy” network doesn’t much like the discounters. I don’t blame them, because it hurts their business. But price fixing is illegal, isn’t it? That’s what the Justice Department is looking into. According to CNN Money, a federal investigation alleges that full service agents in Tulsa Oklahoma engaged in “boycotting”, that is, refusing to show their buyers properties that were listed by discount listing agents. The Attorney General has also sent letters to lawmakers in Oklahoma and Texas, urging them to reject proposals that would effectively prohibit brokers from engaging in discount fee services. These propsed laws require brokers to provide certain services that discount brokers would normally forego.

The Realtor community claims that the public is being protected by requiring agents to provide these services because the consumer might make costly mistakes doing it on this own. Sounds reasonable, but why do the Feds allow discount stock brokers? The answer, to me, is simple: don’t treat consumers like babies, let them make their own decisions. Sure, many consumers will screw it up, but that’s their choice. The state bars, backed by lawyers, tried to outlaw software programs, do–it–yourself kits and legal form publishers, but the consumers won the battle. In reality, the consumer is more likely to make mistakes doing their own legal documents, but that’s their choice. A smart consumer who does not feel comfortable preparing his own living trust will pay a lawyer to do it.

Personally, I’m all for the discount listing services, especially for investors who know what they are doing. If a homeowner does not feel comfortable using a flat–fee, no service broker, they are free to pay the full commission to get the full service.

The Bona Fide Purchaser

You get a deed from a seller in foreclosure. Before you can record the deed, the seller gives a second deed to your competitor. The competitor records his deed at the country first. Who wins?

This is an interesting issue that most investors don’t seem to grasp. First, understand there are two issues here: one is ownership, the other is notice. The recording of a deed is NOT necessary to transfer ownership of real estate. The simple act of executing a deed and delivering it to the buyer passes ownership.

The recording system gives constructive notice to the world of the transfer of title to property. Recording simply involves bringing the original deed to the local county courthouse or clerk and recorder’s office. The original deed is copied onto computer or microfiche, then returned to the new owner. In addition, the county tax assessor usually requires the filing of a “real property transfer declaration,” which contains some basic information about the sale.

There is a filing fee for the deed, which runs about $10 per page. In addition, the county, city and/or state may assess a transfer tax based on the value of the property or the selling price. This makes recording a deed an expensive proposition in states that charge 2% or more of the purchase price. If you are taking a deed in anticipation of doing a short sale or other deal that has a small chance of success, keeping a deed in your file cabinet until the last minute may be the only option. Just understand that if you DON’T record, you run the risk of another investor beating you to the punch.

Every state has a recording statute which dictates who wins in a battle over ownership in the case of a “double deed” scenario as described above. Most states follow a “race-notice” rule, which means that the first person to record his document, wins, so long as he is a BONA FIDE PURCHASER. A bona fide purchaser is one who:

  • Received title and recorded in good faith, and
  • Paid value, and
  • Had no notice of a prior transfer

In a foreclosure situation, an investor often gets a quitclaim deed for free. So, if a subsequent purchaser gets a deed for nothing, then records first, he is NOT a bona fide purchaser. Also, if he had notice of a prior transfer, even unrecorded, he is not a bona fide purchaser. If he acted in bad faith, he is not a bona fide purchaser. In short, the BFP rule protects an innocent buyer who really did lay out money and get a deed in good faith. Foreclosure investors often act in bad faith, convincing a seller to give a deed to a property that was already transferred.

The practical side of the issue, however, is proving your case. If you get a deed from a seller, then your competitor gets a deed and records it and is NOT a bona fide purchaser, what do you do? The bad news is that you have to hire a lawyer to commence a lawsuit to contest his title. This may not be worth the effort if there isn’t much profit in the deal. It may make sense to simply record a lis pendens to hold up the re-sale of the property by the other investor, then settle out of court.

Of course, you should consult with an attorney before proceeding if you are in a situation where you are uncertain of your legal rights.

Are Real Estate Seminars Worth the Money?

If you read the news media, you’ll see that there’s a proliferation of new real estate gurus and seminars coming around to feed the endless demand for real estate these days. One event recently attracted over 30,000 people, with Donald Trump as the headliner (like he knows anything about buying a duplex?).

So, how do you tell the good from the bad? Well, first let me comment that I believe there is very little truly “bad” info out there. The difference is mainly price and quality of information.

Here’s some things you should consider when determining whether to invest in a real estate seminar:

1. PRICE — Be leery of very cheap or very expensive seminars. If the seminar is free, it’s because the promoter wants to sell you something. It costs the promoter thousands of dollars to get people into a room, so expect a hard sales pitch. If the event is more than $1,000/day, you should also be concerned, unless the admission price includes follow–up training or substantial materials. I’m not saying that $5,000 boot camps are all bad, just make sure you’re getting what you are paying for.

2. CLASS SIZE — If you are paying $5,000 for a boot camp, you should expect a small class size. If not, you are likely overpaying, since you won’t be able to ask questions in a large group format.

3. TEACHING ABILITY — Some gurus are knowledgeable, but are bad teachers. Make sure you have heard the speaker before or ask other people who have attended. There’s nothing worse than paying to listen to a boring speaker or one that can’t convey a topic in “plain English.”

4. VALUE — Let’s face it, some products are expensive because you believe they are worth more. Good marketing makes you believe “Bayer” is better than generic aspirin. Before you pay thousands of dollars for the “brand name” seminar, look into a cheaper version that isn’t being marketed on T.V.

5. THE “PITCH” — Although as a rule, the cheaper the seminar, the greater the pitch for other products, some promoters do nothing but pitch, even at $5,000 boot camps. Ask other people who have attended the seminar to determine the teaching to–product–to pitch ratio. There’s nothing wrong with a promoter offering products and services at the less expensive seminars, but it’s borderline insulting to have a non–stop sales pitch when you are paying $1,000 a day or more.

6. REFUND POLICY — Is there an open refund policy? This is VERY important. Ask up front. You should be VERY suspicious of any seminar that does not offer a refund policy.

7. ARE YOU SERIOUS ABOUT IT?No matter how much or little you pay for a seminar, it’s all up to you. No diet works without exercise and discipline and no real estate investing technique works without your hard work. If you are just beginning, stay away from the expensive seminars until you are sure it is for you. Start with the $500 or less variety, let it sink in, then consider more advanced seminars when you have done a few deals. Once you start making money, you should continue investing in your education, since your return will be well worth it. If you are the type who has been to seventeen seminars and haven’t done a deal, consider this:

“The Fault Lies Not Within the Stars But Within Ourselves”

Real estate investing will make you a lot of money if you learn the techniques and apply yourself. The bottom line is that education will help you avoid mistakes and learn new ideas. Read books, go to seminars and learn from other investors. Your best investment is in yourself.

Are you "CLEAR" on What is a Good Deal?

So often beginning investors focus on real estate investing techniques that they lose sight of the important issue - is this a good deal? Learning to recognize a good deal takes research, education and, above all, experience. Here's a good formula to determine whether a potential real estate purchase is a deal. It's a simple acronym called "C.L.E.A.R."

CASH FLOW

Ask yourself, will this property cash flow? Well, that depends on a lot of factors, such as the strength of the local rental market, the interest rate on the financing and how much of a down payment you make. Also, it depends on whether it is a single family or multi-family dwelling. All of these factors considered, ask yourself, "will this provide income for me?"

Also, ask the question, "how will this property cash flow compared to other potential properties?" For example, a $150,000 house that rents for $1,000/month has a better income potential than a $300,000 house that rents for $1,600/month. A four-unit building that costs $400,000 may bring in $3,000/month in the same neighborhood.

Now, of course, whether the property will provide income to you begs the question of whether income is important to you. Is it? Do you earn other income? Do you need more income now, or is future equity growth more important? There's no right answer to these questions, but are all factors to consider when looking at a potential purchase.

LEVERAGE

Leverage is important in investing because the less cash you put down on each property, the more properties you can buy. If the properties go up in value, your rate of return goes up exponentially. However, if the properties go down in value and you have a lot of debt on the property, this can result in negative cash flow (see above). Since real estate is generally cyclical, negative cash flow is only a short term problem and can be handled if you have other income or a cash reserve to handle the negative. “Nothing down” investing is very attractive for the high-leverage investor, but should be approached with caution.

If you are a long-term player, leverage will generally work in your favor if the markets in which you invest appreciate in the long run and your income from the properties can pay for most of the monthly debt service.

EQUITY

Does the property you are purchasing have equity? Equity can take a number of forms, such as:

Related Information

  • A discounted price
  • A potential fixer–upper
  • A rezoning opportunity
  • A poorly managed property
  • A foreclosure

There are many ways to create equity, but buying INTO EQUITY is your best bet. Find a motivated seller that wants out of his property and is willing to give up his or equity for less than full value. Or, buy a property that needs work that can be done for 50 cents on the dollar or less. In other words, if the property needs $10,000 in work, make sure you get a $20,000 discount on the price or better.

APPRECIATION

Buying in the right neighborhoods and in the right stage of a real estate cycle will result in appreciation and profit. However, timing a real estate cycle is difficult and can be very speculative. If you buy properties without equity or cash flow solely for short-term appreciation, you are engaging in a very risky investment.

Buying for moderate long-term (10 to 20 years) appreciation is safer and easier. Look at long-term neighborhood and city-wide trends to pick areas that will hold their values and grow at an average 5 to 7% pace. Combine this tactic with reasonable cash flow and buying into equity and you will be a smart investor.

RISK

Risk is a consideration that too few investors consider. Ask yourself, “what if my assumptions are wrong?” In other words, do you have a "plan B?? If you bought for appreciation and the property did not appreciate in value, can you rent for positive cash flow? If you buy with an adjustable rate loan and the rates go up, will this put you out of business? If you have a few vacancies, can you handle the negative cash flow, or will it break the bank for you? Expect the best, but prepare for the worst.

Remember, whenever you look at a property to purchase, think “CLEAR.

A Review of the NCLC’s “Dreams Foreclosed” Report

The National Consumer Law Center recently published a report called “Dreams Foreclosed – The Rampant Theft of Americans” Homes Through Equity–Stripping Foreclosure “Rescue’ Scams.” It is being paraded around the media as an objective study of the foreclosure market and all the bad people who are taking advantage of homeowners. In the vein of a Michael Moore documentary, it is a poorly researched, one–sided editorial piece designed to push someone’s agenda.

So who is the National Consumer Law Center and what exactly is their agenda? Here’s how they describe themselves:

“The National Consumer Law Center (NCLC) is the nation’s consumer law expert, helping consumers, their advocates, and public policy makers use powerful and complex consumer laws on behalf of low–income and vulnerable Americans seeking economic justice.”

That description paints a pretty picture, but their political leanings are quite obvious if you read between the lines. They take funding from radical left–wing billionaire George Soros to help illegal aliens continue to live illegally in the U.S. They also virulently fought the new Bankruptcy Reform law that stops deadbeats from abusing the bankruptcy system. Like many far–left organizations, they believe that corporate America is evil and the “little guy” is always innocent.

Now, if you are left–of–center politically, please don’t miss the point here – I’m not criticizing liberals. The NCLC is entitled to their opinion, so long as they make it clear that their “research papers” are just that – someone’s opinion. It is academically dishonest to call a paper an “objective study” when the group sponsoring the study has a particular agenda that skews the conclusions. It would be like asking Rush Limbaugh to do an objective documentary on the Clintons.

New Laws Don’t Always Help, They Sometimes Hurt

By passing new laws designed to “protect” the homeowner in foreclosure, it actually ends up hurting everyone in the long run. For example, a new law was passed in Maryland that requires a waiting period for any transaction involving a person in foreclosure. Similar laws are being considered in other states. Various intricate disclosures, rules and penalties written in these laws make it virtually impossible for a mortgage broker to help fund a new loan in fear of being punished.

Waiting periods do nothing more than SHORTEN the time a homeowner has to solve his problem. If the homeowner in foreclosure is 10 days before the sale date and the law requires a 5–day waiting period, how does this help a deal get closed? The fact is, it hurts the homeowner by preventing a last minute loan or deal from being worked out that might help save the property from foreclosure.

Also, let’s not forget that all of these ideas about new laws sound great when the real estate market is hot. When a local economy goes South, more and more people will be looking to dump their homes quickly and will not be able to do so because of these “consumer protection” laws.

The Court of Public Opinion

The NCLC and their friends at the media are playing a political war to sway public opinion about foreclosure investors. Certainly, there are some bad apples in every business, and the foreclosure business is no exception. But, to suggest that the vast majority of real estate investors that buy properties in foreclosure are bad people people is absurd.

Likewise, the media and the NCLC seem to feel that all of the foreclosure sellers are without blame. Everyone in foreclosure has something in common – they stopped paying their loan! Some people are a victim of bad circumstances, had excessive medical bills or ended up in a messy divorce. But, let’s not forget that the vast majority of people in foreclosure are simply financially irresponsible people who lived from paycheck to paycheck.

Furthermore, the NCLC blames the lenders for giving out too much money. Doesn’t the borrower who got in over his head and lived beyond his means have any responsibility here? The NCLC and their kind are the same kind of lawyers who blame McDonalds for obesity, blame the cigarette companies for causing cancer and think class action lawsuits are the way to solve society’s problems.

Of course, the NCLC doesn’t see it that way from their skewed political perspective. Here’s how the NCLC report begins:

“In this report you’ll read about those who target many thousands of good people, people often under serious stress, and shake all or most of the value out of what’s often their only major asset.”

Shall I get out the violin yet? What about the lenders who are losing money from the borrower who didn’t pay his loan? Let’s not forget that foreclosures cost lenders money, which is passed on to all their other borrowers. Increased costs means less profit for their shareholders, most of which are the pension funds and 401k’s of ordinary working people. With Government insured loans, the taxpayer picks up the tab for people who don’t pay their debt, live for free, then, with the help of lawyers like the NCLC, file bankruptcy and tie up the property for a year or more. Who’s the victim here?

Value... What Value?

An interesting item worth noting again is the NCLC’s statement on how investors “shake all or most of the value out of what’s often their only major asset.” What value are they talking about here?

From personal experience in a lot of foreclosure transactions as an investor, attorney and manager of an escrow company, I can attest that the vast majority of deals involve a seller who has very little equity, has little emotional interest in his property and has already exhausted all other options, including trying to refinance or list the house for sale with a real estate broker. Most foreclosure sales often happen just before the foreclosure sale date when the homeowner wakes up to reality. So, when the NCLC suggests that an investor is “stealing” a seller’s equity, it’s a complete misunderstanding of the reality of the marketplace.

For example, let’s say a seller owes $170,000 on a house worth $200,000. The foreclosure sale date is one week away. An investor pays the seller a few thousand bucks for the deed to his property, then resells the property for a profit. The NCLC might scream, “but you’re stealing $30,000 in equity for just a few thousand dollars!” That’s a typical reaction from someone who doesn’t understand how the foreclosure business works.

In most cities, a $200,000 house takes a few months to sell. If the seller is late in the foreclosure process, there’s no time left, so he’d have to price the property around $170,000 or less to move it quickly. So, when someone says, “you’re paying 10 cents on the dollar for the seller’s equity,” that’s not really true – the seller in foreclosure really has no equity, since the impending sale date forces the seller to liquidate quickly.

In bankruptcy, the courts have routinely ruled that the borrower is only entitled to “reasonably equivalent value” in a foreclosure sale, not market value. These rulings reflect the fact that a property sold in distress is WORTH LESS than a property sold under normal circumstances. To the investor, the foreclosure property has equity, because the investor has the financial means to stop the foreclosure process, whereas the seller does not. The investor makes money because he has the solution the seller does not.

Who’s “Taking Advantage” of Who?

The NCLC and the news media often paint the picture that foreclosure investors are “sharks” who take advantage of helpless sellers in bad circumstances. Admittedly, foreclosure investors make a profit here from other people’s bad circumstances – so what? Thousands of businesses make a profit from other people’s problems, including:

  • Bankruptcy lawyers
  • Class action lawyers
  • Divorce lawyers
  • Funeral parlors
  • Pawn shops
  • Doctors & Hospitals

Think about it this way: if you are bleeding and a doctor stitches up the wound to save your life, is his knowledge and expertise worth money? Or, will someone call that doctor a “thief” if the patient gets a $20,000 bill for the life–saving operation?

The bottom line is that if someone is in foreclosure and about to lose their home, they should do whatever they can – make up back payments, negotiate with their lender, try to refinance or try to sell the home. When all options are exhausted, the only choice may be to sell to an investor cheap or let it go back to the bank. If an investor profits from the transaction, so what?

Of course, there’s another option the NCLC would suggest, as outlined in their various “consumer–law” publications: Hire an attorney to file a series of silly legal challenges to the validity of the bank’s loan disclosures. This will help delay the lender’s foreclosure process for several months. When the court denies all of your frivolous objections, you then file for bankruptcy and stay in the property for free for another six months. When the lender completes the foreclosure, the homeowner can stay a few more months until the lender gets around to evicting the former homeowner. If you really want to squeeze out a few more months of free rent, you file a bunch of technical objections to the lender’s eviction proceeding.

So, instead of an investor profiting from the seller’s equity, we have attorneys and their clients who profit by bilking the lender. The NCLC attorneys call this “protecting the consumer’s rights.” Most people would call it being a “deadbeat.” You see how easy it is to spin the story in the other direction?

New Laws Giving Government More Power?

The problem is, the NCLC’s media campaign is actually working. They’ve got the press parroting the same message and adding wild stories of how innocent homeowners lost their homes to unscrupulous investors. Don’t get me wrong, these investors that are being reported are often people who did bad things. Getting a deed to a property under false pretenses is a crime – it’s stealing. Investors who lie and mislead sellers in foreclosure give a bad name to everyone and they should be punished.

But, we don’t need new laws to punish these bad people, since there are already laws on the books that are applicable (such as “grand larceny”). In addition, the Attorney General of your state already has broad powers under the Consumer Protection Acts to deal with this kind of activity.

And, while we’re on that topic, the Attorney Generals of many states are foaming at the mouth and sharpening their axes, too. Both Democrats and Republicans with political aspirations, these Elliot–Spitzer wannabe’s are going after foreclosure investors to get a name for themselves. It looks real good on your resume when you run for Senator if you headed up a “special task force.”

But once the smoke clears, reasonable people know that you can’t solve all the problems of financially irresponsible people by punishing foreclosure investors. Investors didn’t cause the problem, they are just trying to help solve it, and (God forbid) make a buck!

The Whole Truth?

The NCLC report suggests that the vast majority of foreclosure transactions are bad for the homeowner and a result of investors that “prey” on them. What is not reported in the NCLC paper or the news media is that MOST foreclosure deals that blow up are generally the fault of the seller. Many of these sellers knew exactly what they were doing, but got “seller’s remorse” when they saw that someone else was making a profit. In most cases, the seller’s remorse comes about when another investor tells the seller he could have offered more for the property. When the homeowner demands more money and doesn’t get it, he hires an attorney to fight for his rights. The newspaper reporter doesn’t tell you that side of the story – instead he interviews the plaintiff’s attorney for the whole picture. In fact, this is exactly what the NCLC did in their research. I don’t recall any quotes in the report from the president of any real estate investment groups or authors.

I can tell you from personal experience that there are just as many sellers who lie and do not live up to their promises in foreclosure deals. Sellers often flake out, don’t move out when they promise, neglect to tell you about liens on their property, and develop a “convenient” memory about the facts when they find an attorney. In one Colorado Springs case, the homeowner actually demanded his house back because he claimed he was drunk when he signed the papers. Don’t laugh – the news reporter spun it into a sad story about how alcoholism was to blame for the seller’s financial problems, and how the investor should be ashamed for trying to get papers signed by a drunk man.

There are a whole lot of happy endings about investors who bought homes from foreclosure sellers who received cash, saved their credit and got on with their lives. If a seller is four payments in arrears, has exhausted all options and is facing foreclosure, he’ll lose everything and his credit will be ruined for a long time. Instead, if he deeds his house to an investor who makes up the back payments and negotiates a deal with the lender, his credit will be improved. And, if the seller gets a few bucks of the deal, he can move on with his life. The lender is thrilled, since the loan is no longer in default.

These stories happen all the time, but unfortunately they don’t make headlines in newspapers.

What to Do if a Tenant Abandons the Property

Have you ever had a tenant leave in the middle of the night or the middle of an eviction? Did you ever wonder what to do?

Basically when a tenant abandons the property, you do not need to file an eviction or wait for the sheriff. You can change the locks. As for the tenant's stuff, in most states you can simply toss it. You should check your state or local law to see what your legal obligation is to store the items for the tenant.

HOWEVER...

If you are not certain whether the tenant has abandoned the property, you should not change the locks. If you have the keys, you could enter the premises, but KNOCK FIRST. Whether or not the tenant has abandoned is often a judgment call, looking at a combination of factors, such as:

  • Did the neighbors see them move?
  • Are the utilities shut off?
  • Did the tenant put in a change of address at the post office?
  • Is there any significant furniture left?
  • If you have access, are there sheets on the beds?

In some cases, the tenant has been arrested or is in the hospital, which would explain why he hasn't been around. Or, maybe the tenant has moved, but left behind some furniture to pick up later on. Even if the tenant is not sleeping there, they are still "in possession" if they have their personal belongings in the unit and have not shown an intent to abandon these items.

Some states have specific laws regarding PRESUMPTIONS of abandonment. For example, Connecticut law states:

Sec. 47a–11b. Abandonment of unit by occupants. Landlord's remedies.
(a) For the purposes of this section, "abandonment" means the occupants have vacated the premises without notice to the landlord and do not intend to return, which intention may be evidenced by the removal by the occupants or their agent of substantially all of their possessions and personal effects from the premises and either

(1) nonpayment of rent for more than two months or
(2) an express statement by the occupants that they do not intend to occupy the premises after a specified date.

You can find a state by state guide to landlord tenant law by clicking here. If you do intend to claim abandonment, take pictures, gather evidence and cover all bases to prepare for a possible wrongful lockout claim. If you have ANY doubts, call your landlord–tenant attorney and do the proper legal eviction proceeding.

Be a Smart Investor... Do the Math

Should I use cash or credit? ARM loan or fixed rate? Ten percent down or twenty percent? Should I pay down debt or keep a cash reserve? These are all good questions, and here’s some of the answers.

Cash vs. Credit: The Concept of Leverage

In order to understand real estate financing, it is important that you understand the time value of money. Because of inflation, a dollar today is generally worth less in the future. Thus, while real estate values may increase, an all–cash purchase may not be economically feasible, since the investor’s cash may be utilized in more effective ways.

Leverage is the concept of using borrowed money to make a return on an investment. Let’s say you bought a house using all of your cash for $100,000. If the property were to increase in value 10% over 12 months, it would now be worth $110,000. Your return on investment would 10% annually (of course, you would actually net less, since you would incur costs in selling the property).

If you purchased a property using $10,000 of your own cash and $90,000 in borrowed money, a 10% increase in value would still result in $10,000 of increased equity, but your return on cash is 100% ($10,000 investment yielding $20,000 in equity). Of course, the borrowed money isn’t free; you would have to incur loan costs and interest payments in borrowing money. However, you could also rent the property in the meantime, which would offset the interest expense of the loan.

Taking leverage a step further, you could purchase ten properties with 10% down and 90% financing. If you could rent these properties for breakeven cash flow, you would have a very large nest egg in 20 years when the properties are paid off. Balance that with what you could make by investing the cash flow on one free and clear property for 20 years. And, of course, look at the potential risk of negative cash flow from repairs and vacancies on ten properties. Finally, consider the tax implications - if you have cash flow, you have taxable income; if you have increase in equity, there’s no tax until you sell.

Cash Flow vs. Cash Reserve

On a similar note, the size of your down payment will affect your cash flow on rental properties. Let’s consider two examples.

Example 1: $100,000 property with $20,000 down. $80,000 loan @ 6% interest, including taxes and insurance is about $600/month. Assuming you could rent the property for $800/month, you have $200/month cash flow or $2,400/year. Not bad.

Example 2: $100,000 with NO money down. $100,000 loan @ 8% (higher rate is generally common for zero–down loans) would make your payments closer to $900/month. With zero down, you have $100/month NEGATIVE cash flow.

Which is better? Well, it depends on what your goals are and what the rest of your financial picture looks like.

Let’s say your goal was to hold the property for 10 years. In the first example, you have $200/month cash flow, but no cash reserve. In the second example, you would have $100/month negative cash flow, but you have $20,000 in reserve. The knee–jerk reaction of some people is that example #1 is safer. But is it really?

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Think about it... in the first example, if your property becomes vacant for one month, you’d be out of pocket $600. It would take three months to make that up. In the second example, you have $20,000 in cash cushion to make up the deficit. With $20,000 in the bank, you could handle $1200/year negative cash flow for 16 years. If the property were in an appreciating market, you’d come out fine, even with negative cash flow.

Another factor is the choice of loan. You could buy a property with nothing down and an interest–only loan fixed at 5% for three years. If your exit strategy is a lease/option that should cash you out within 36 months, why do a fixed–rate loan?

The point here is that you should not AUTOMATICALLY go with a fixed–rate loan. Nor should you seek positive cash flow as the ONLY goal. Likewise, you should not buy properties with nothing down and negative cash flow and assume that short–term market appreciation will be the only source of your profit.

Paying Down Debt

For years, our parent’s generation discouraged debt as a “bad” thing. For some investors, the goal is to own properties “free and clear,” that is, with no mortgage debt. While this is a worthy goal, it does not always make financial sense.

If you have free and clear properties, you will make certain amount of cash flow and pay a certain amount of income tax. If you need more cash, you are forced to sell the asset, creating a taxable gain.

If you refinance a property, there’s no taxable event. And, since mortgage interest is a deductible expense, the investor does better tax wise by saving his cash. Think about it... the higher the monthly mortgage payment, the less cash flow, the less taxable income each year. While positive cash flow is desirable, it does not necessarily mean that a property is more profitable because it has more cash flow. More equity will obviously increase monthly cash flow, but it is not always the best use of your money.

On the other hand, paying down debt may make sense if you can’t get a higher return elsewhere in the market. Also, if paying down debt can have other rewards, such as bringing a loan below 80% LTV, you may be able to cancel private mortgage insurance and save additional money.

In short, don’t rely on assumptions... do the math!

How Does Bankruptcy Affect a Subject-To Deal?

Topic: Bankruptcy question

Kuangting_Liu_MI - 08-22-2005 @ 7:15 AM

I just signed a Purchase Agreement. The owner was awarded the house from her divorce settlement. The husband has just quit-claimed the house to her last week. He is now filing bankruptcy. Would his bankruptcy affect my deal with the wife? Should I close the deal before his bankruptcy, or after, or doesn’t matter?I am buying the house subject-to and the loan is in both names.

Thanks!


William_Bronchick_CO - 08-22-2005 @ 9:05 AM

If he has already deeded the property over as part of his divorce agreement, I would not think his bankruptcy would affect you, since he no longer has any interest in the property. If the husband filed for chapter 7 bankruptcy BEFORE he deeded the property, that would be a problem, since he would need the permission of the bankruptcy trustee to transfer any assets AFTER the filing.

Theoretically, the court can overturn a transfer done before the bankruptcy filing as a “fraudulent conveyance”, but I doubt that would happen here, since he was required to deed it to the wife per the divorce settlement. Assuming that divorce settlement was approved by the court and converted to a divorce decree, I can’t see how this would happen. However, if the husband is entitled to anything from the resale of the property as part of the divorce decree, this may affect your deal. I would make sure the divorce settlement doesn’t entitle him to anything further.


Kuangting_Liu_MI - 08-24-2005 @ 11:45 AM

Bill, I am having a problem with this deal. The husband’s bankruptcy attorney said he can’t have the mortgage still in his name. His wife needs to either refinance the mortgage to her name, or the buyer (I) needs to get a new mortgage. The husband is concerned if I later default on the loan and with mortgage still in his name, it would affect him. And since he quit claimed the house to the wife, there is nothing he could do if that happens.

They are trying to back out of the deal. What can I do?


William_Bronchick_CO - 08-24-2005 @ 2:08 PM

Amazing... attorneys can sometimes give out wrong advice! If the husband files for chapter 7 bankruptcy, the loan IS out of his name once he receives a discharge order.


Paula_Chess_CO - 08-24-2005 @ 4:31 PM

Bill,My sellers are also about to file for bankruptcy after my purchase/sub2. I always thought the Bankruptcy simply postponed the mortgage debt rather than absolve them of it? Aren’t those payments still due at some point - and therefore foreclosure would loom somewhere in the not-so-distant future if it went unpaid?Can you clarify what you mean by the loan is “out of his name” ?

Paula Chess


Kuangting_Liu_MI - 08-24-2005 @ 6:05 PM

I checked with a local bankruptcy attorney and Bill was right. If payments were not made, the lender could foreclose on the wife and take the house. But the lender could NOT go after the husband personally. But he also said the lender could require the wife to refinance. This brings up another question. The bankruptcy may alert the lender and cause them to find out the house has been sold. That increases the chance of them calling the loan due. What’s your thought on this, Bill? If it was you, would you feel comfortable to proceed with the deal?


Paula_Chess_CO - 08-26-2005 @ 11:08 AM

So Bill, If both husband and wife were filing BK, is the debt really absolved - or simply postponed? If I’m taking it sub2, and it’s named in the BK, can the loan be called due during the BK period?

Paula Chess


William_Bronchick_CO - 08-26-2005 @ 12:41 PM

The debt is absolved as to the borrower (the husband, in this case) who is discharged of the debt in the bankruptcy proceeding. The lender still has a valid lien on the property, even if the debtor is not PERSONALLY liable on the underlying note anymore. Once a borrower files a petition for bankruptcy, there’s an automatic “stay” order issued by the bankruptcy court. The “stay” stops all proceedings for collection of debt against the debtor, including foreclosure.What happens next is the lender will petition the bankruptcy court for “relief from stay”, which is generally granted. Once that happens, the lender can proceed with foreclosure against the property. So, for the lender, it’s justice DELAYED, not justice denied. However, the lender cannot seek a deficiency against the debtor who has been discharged of the debt (the husband). The lender will only be entitled to the property.The other issue is the subject-to... if you keep paying the lender, they can and likely will keep accepting your payments. Remember, the STAY does not apply to you, it only applies to the borrower, so the lender can legally keep taking YOUR payments.However, the lender may choose to refuse your payment and call the note due. This is not likely, since they would rather have their loan being paid than in default. You should be prepared for a “plan B” if this happens, such as negotiating a waiver with the lender or refinancing the existing loan with a new one. If there’s enough equity in the property and the deal makes sense, I would think it is worth taking the risk. If this deal buys you six months of time before the lender decides to accelerate the note, you should have no problem refinancing based on appraised value at that time. It’s all about understanding the risks and weighing your options in the deal.

WB

Should You Use an Attorney’s Fee Clause?

Most “standard” real estate contracts and leases contain provisions that state something to the effect, “If there is any dispute as to the agreement, the winning party is entitled to attorney’s fees.” Is this a good idea?

Well, yes and no. First, understand that attorney’s fees are generally not awarded by the court to the winning party in a lawsuit. There must be either a specific statutory provision or a clause in the disputed agreement that calls for attorney’s fees. In addition, a court may award attorney’s fees where there is “bad faith” on the part of one of the litigants, but judges rarely enforce this rule.

If you have to sue another party to a lease or contract for $100, it hardly seems worth the effort if you have to pay your attorney $2,500 to file the lawsuit. In such cases, the opposing party may thumb his nose at you and say, “so sue me”. The court system is very unfair to the poor in this regard. However, if you are the potential defendant, it works in your favor if someone is thinking of suing you for some bogus reason and you know that they can’t afford an attorney.

So, should you always insert an attorney’s fee clause in every contract or lease that you sign? Well, that depends on whether such a clause inures to your benefit. For example, if you are a landlord, chances are you will be suing your tenant for non-performance of the lease, not vice-versa. So, having the ability to get attorney’s fees if you win is to your benefit. Of course, this may be futile, since any judgment may be uncollectible, whether for $100 or $10,000. But, if you think you can collect a judgment, go ahead and put the clause in your lease.

Another example might be a purchase contract with a seller in foreclosure. Suppose you have an agreement to buy a property from a seller who is near insolvency. If he breaches the agreement, you can sue, but what will you get? On the other hand, if he can convince a court that YOU are in breach, you could lose and end up paying HIS attorney’s fees. Thus, you can see how an attorney’s fee clause may work against you. If you get into a dispute with a seller or buyer and they cannot afford an attorney, you reduce your risk if something goes bad. Remember, whether you are right or wrong in your actions involving a real estate deal, it’s what is proven in court that matters. Having plenty of trial experience, I can tell you that going to court is a gamble - sometimes you win, sometimes you lose, and truth and justice have little to do with it.

Finally, some agreements will state that if one party must enforce the agreement in court (e.g., the landlord in a lease), the landlord is entitled to lawyer fees. Many courts will apply the rules in reverse, even if the agreement doesn’t explicitly state. So, you cannot necessarily limit attorney’s fee if one party wins but not the other.

As with any transaction, you could consult with an attorney before drafting any agreement you are uncertain of.

Lease/Options & the Equitable Interest

I get a lot of emails and calls from people concerned about selling a property by lease with option because of the fear of the “equitable interest”. What does this mean and how big of a danger is it?

Before we discuss the equitable interest, we need to discuss the basic owner–financed sale. When you sell a property, you give the buyer a deed to transfer ownership. If you owned the property free and clear before you sold it, you would take back a note for part of the purchase price, secured by a lien on the property (in some states a “mortgage”, in others a “deed of trust”). So, after the closing the buyer would have title (deed) and you would have a recorded lien against the property (“mortgage” or “deed of trust”). If the buyer stopped paying, you’d have to initiate foreclosure proceedings as specified by the mortgage or deed of trust. In mortgage states, the process is generally a lawsuit (judicial foreclosure), while deed of trust states the process is a “power of sale” (non-judicial) process.

Before we move on to the lease/option, let’s discuss the installment land contract. The installment land contract is an agreement by which the buyer makes payments under an agreement of sale in installment payments. The transaction is also known by the expressions, “contract for deed,” and “agreement for deed.” The seller holds title as security until the balance is paid. In many respects, the land contract is identical to a mortgage, in that the buyer takes possession of the property, maintains it and pays taxes and insurance. However, title remains in the seller’s name until the balance of the debt is paid. In many states, the installment land contract is considered the equivalent of a mortgage, in that the seller must commence foreclosure proceedings to remove the defaulting buyer.

If you sell the property by lease with option to purchase, it’s not really a “sale” at all. The lease creates a landlord–tenant relationship. The option gives the buyer the right to purchase the property during the lease term at a specified price. If the tenant/buyer defaults, you evict him like any other tenant. However, once you go into court, the tenant/buyer may raise the “equitable interest” argument. In essence, the tenant/buyer is arguing that the lease/option agreement is essentially the equivalent of a sale, similar to an installment land contract. The tenant is asking the judge to rule that the buyer “owns” the property (even though title has not passed) and that the landlord is the equivalent of a lender. If true, the landlord must now proceed with a judicial foreclosure process instead of an eviction, which takes several extra months.


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Whether you are a beginner looking for a quick way to get started or an experienced investor looking to sell houses for top dollar in a soft market, the lease/option will be an essential tool in financial toolbox. You will learn how to create INSTANT equity and monthly cash flow FAST, even if you have no cash or credit. More Info >>

Logistically, the proceedings follow a certain path through the courts. In most parts of the country, the local civil courts have three levels – small claims, limited jurisdiction, general jurisdiction. The small claims court are like the “People’s Court” shows on T.V. – nobody can bring a lawyer and the maximum you can sue for is limited to about $5,000, give or take. The general jurisdiction courts can hear any kind of claim from a divorce to a foreclosure to a slip and fall case for $10,000,000. The limited jurisdiction court is in between the two; you can use a lawyer and bring certain types of claims, including an eviction proceeding. The different courts have different names, depending on which state you live in. In my state (Colorado), the limited jurisdiction court is called “County Court” and the general jurisdiction court is called “District Court”. In New York, where I used to practice law, there were called “City” courts (limited jurisdiction) and “Supreme Courts” (general jurisdiction).

The limited jurisdiction court cannot hear foreclosure cases or property ownership disputes. Since the eviction proceeding is brought in the limited jurisdiction court, there is the risk that the tenant may raise the “equitable interest” argument. If this happens, the judge cannot decide the dispute because he lacks jurisdiction. The judge will have to transfer the case to the general jurisdiction court for a hearing. This may cause a delay of a few weeks to a few months. Since time is money, this is not good for the landlord, which is why some lawyers will start the eviction in the general jurisdiction court if they believe the tenant plans to fight the eviction (this may cost more in attorney fees than bringing an eviction in the lower courts, but will be faster if there needs to be a hearing on the equitable interest).

Either way, in most cases the general jurisdiction court will reject the tenant/buyer’s argument and permit the landlord’s eviction. Why? Well, the tenant/buyer is asking the court to use it’s “equitable” powers to rule that a lease/option is not a lease/option, but a sale. The court is being asked to turn a document into something it isn’t in the matter of “fairness” (equity). Obviously, it’s a judgment call for a judge, but in my experience this rarely happens. Here are some of the factors the judge will consider:

  • How long has the tenant been in the property?
  • How substantial was the default?
  • How were the documents drafted (i.e., does the lease/option look more like a contract for deed?)
  • Has the tenant done improvements, and are those improvements valuable?
  • How much money did the buyer put down?
  • What’s the difference between the tenant’s option price and the current market value of the property?

The last two factors are extremely relevant, since they will determine how big of a piece of the pie the parties are fighting for. If the option price was $200,000, the tenant put up $5,000 and defaulted a year later and the market value is now $210,000, it is doubtful a judge would rule in the tenant’s favor. It’s not “equitable”. On the other hand, if the tenant put up $20,000, lived in the property three years and the market value was now $250,000, the judge might rule in favor of the tenant’s equitable argument. In this case, there’s $70,000 of equity worth fighting over, so it’s not that big a deal if you have to pay a lawyer $5,000 to foreclose.

In short, don’t believe the urban myth that all lease/options end up requiring a foreclosure. Most of the time the “fairness” doctrine works just fine – the tenant/buyers without equity end up being evicted and the tenant/buyers with substantial equity get to keep it (or get foreclosed). And, of course, you should have a well–drafted lease/option agreement with your tenant/buyer, as set forth in my Lease/Options Home Study Program.

Tax Issues on a “Subject To” Deal

You buy a property “subject to” an existing loan. You sell the property on an installment land contract or lease/option. What are the tax ramifications?

Part One: Determining Your Basis

Your tax basis is basically what you paid for a property. If you have a seller $2,000 and took a deed subject an existing loan of $189,000, your basis is $191,000. Basically, your basis in a subject to is cash paid to the seller, plus existing loan you are taking over. If you also paid money for back taxes and mortgage payments, that would also be part of your basis. So, if in the above example you paid $3,000 to the lender to cure the back payments, your tax basis is $194,000.

Part Two: Figuring Out Your Gain

If you resell the property for cash, the gain is easy to figure out – sales prices less your basis, less your sales costs (broker fees, closing costs, etc). If you resell the property on a lease/option, you haven’t really sold it at all, since a lease/option is generally not considered a sale until the tenant exercises the option to purchase. During the period of the lease, you would be taking depreciation, so there’s a recapture of that depreciation when you sell at 25%.

William Bronchick’s
“Lease/Options” Home Study Program

William Bronchick’s Lease/Options Home Study Program

If you resell on an installment land contract (aka “contract for deed”), it IS a sale, even though title does not pass to the buyer. Thus, your gain is the sales price on the contract, less your tax basis. This is considered an “installment sale”, so your taxable gain is based on the cash received, plus any principal received in the year of sale. When the buyer pays off the balance of the contract, you have a gain in that tax year for the balance of principal received.

Part Three: The Interest

This part of the equation always gets people confused. In our example above, you bought a property from Sally Seller subject to the existing loan. You then sold it on a land contract to Barney Buyer. Who “owns” the property? For federal income tax purposes, there were two sales – from Sally to you, then from you to Barney. So Barney would be deducting the interest he is paying on schedule “A” of his federal income tax return as the “equitable owner”.

This appears confusing because YOU have the deed and Barney does not. It is also even more weird because Sally Seller’s lender is sending a form 1098 for the annual mortgage interest to the IRS in Sally’s name! Don't let that fool you... the basic rule of the interest deduction is that the person who has an ownership interest in the property, uses it as his principal residence, and actually makes the interest payments is the one who is entitled to the deduction. So, in this case, Sally Seller neither owns the house nor makes the payments – she does nothing. Barney Buyer is the “equitable owner”, which gives him an ownership interest. And, Barney is also actually making the interest payments, which he can deduct.

One last part of the equation – the interest YOU are paying on the underlying loan. If you buy subject to and sell on a wraparound, you are collecting payments from Barney Buyer and continuing to make payments on Sally’s underlying loan. The interest YOU pay is deductible as an offset (business interest) against the interest income you are collecting from Barney Buyer.

Collecting Money Owed by a Tenant

Did you ever have to evict a tenant for non–payment of rent, then get stiffed for the bill? You may be able to collect what is owed to you, even years later.

First, you need a court–ordered money judgment. If you filed for an eviction in court, you received a judgment and order of possession. The actual name of this court order may change slightly from state to state, but it’s the same thing — a document signed by a judge that permits a local sheriff or constable to forcibly remove the tenants from the property.

In most states you can also get a money judgment against the tenant, but this requires one of two things: 1) the tenant must have been personally served with the court papers or 2) the tenant must have shown up in court. If the eviction papers (the court papers, not the notice to pay rent) were posted on the door of the unit and/or mailed to the tenant, you generally do not get a money judgment from the court.

What About Security Deposits?

If you have a security deposit from the tenant, you can apply that against anything he owes you for back rent or damages. However, you still must comply with state law for notifying the tenant of your intent to keep the deposit. Even if you return the security deposit, you can still sue the tenant for actual rent owed and/or damages incurred to the unit.

If the tenant left before the court date or you did not otherwise get a money judgment, you can always sue the tenant in your local small claims court for money owed and any damages to the property. The process is quite simple, and does not require a lawyer. You have to file the claim before the end of the statute of limitations, which generally ranges from three to six years, depending on which state you live in.

Once you have a money judgment, you can collect it against all non–exempt assets of the debtor. Certain assets, such as retirement accounts, are exempt from collection by creditors. Also, keep in mind that assets of the debtor’s spouse may be attached as well in states that recognize community property (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin).

Cash in bank accounts is the easiest target. If you have a copy of a recent check from your tenant, you can file for a “levy of execution” on their bank accounts through the local sheriff (this is why it is a good practice to make copies of your tenants’ checks each month to make sure you know where they are banking).

If the tenant is working, you can garnish wages, but most states limit garnishment to 25% of the wages of the debtor. Still, if they have a steady paycheck, you will get your money back, plus interest. If you get a transcript and record the judgment in county records, the tenant will not be able to buy a house in that county without paying you off. If the tenant owns other real estate in his name (not likely, but always possible), the judgment will create a lien on that property as well.

If you do not know where the tenants assets are located, you can start a debtor proceeding in court to make him appear in court and answer questions regarding his assets. Failure to comply may result in a warrant issued for the debtor’s arrest. Depending on the amount of money owed and likelihood of collecting, this process may not be worth your effort. But, considering a judgment may be valid for as long as 10 years and you get interest on your money, why not make it a part of your business practice?

Seven Ways to Flip a Property

Flipping” is the buzzword of the year in real estate - flipping books, flipping articles in the newspaper, and even flipping shows on TV! What is flipping, how does it work and how you can profit?

Flipping simply means buying a property and reselling it quickly, as opposed to holding on to a property long term as a rental. Flipping comes in several varieties, most of which are legal and profitable, some of which are not.

Flip Strategy #1: Buy, Fix and Flip

Let’s start with the most common form - the good, old “fix ‘n flip”. This process involves buying a property that needs work, fixing it up, then selling on the “retail” market, that is, to a person who will live in the property. This method is tried and true, and works very well. You can easily make $15 - $50k on one deal, depending on your market and how good you are at finding bargains.

The danger in fix and flips is either paying too much or underestimating repairs. Be very conservative in your fix-up costs and length of time it may take to resell. Also, make sure you include in your analysis the cost of paying a real estate agent to sell the property.

Flip Strategy #2: Buy, Refi & Lease/Option

Rather than sell the fixed up property for all cash, sell for terms. Once you have completed the rehab, refinance the property at its new appraised value. If you did the math correctly, you should have little or no money in the deal. Sell the property on a lease with option to buy. The rent payment from your tenant/buyer should cover your mortgage payment (if not, consider an interest-only or adjustable rate loan that is fixed for 3 years). When your tenant exercises his option to purchase, you reap a larger profit, since you don’t have to pay a broker’s fee. If the tenant exercises his option after 12 months, you benefit from a lower capital gains tax rate.

Flip Strategy #3: Buy & Flip “As Is”

Don’t like to do fix-up work? Consider selling the property “as is” as a light fixer upper. If the local real estate market is hot, you should be able to sell the property in poor condition just a little below market. This is especially the case with houses in “transitioning” neighborhoods. Make sure, of course, that you acquire the property sufficiently cheap enough that you can sell it below market quickly and still profit.

Flip Strategy #4: Wholesale

Strategy #1, the fix and flip, is very popular, which means there are a lot of investors looking for rehabs. You can buy the property cheap and sell it for just a few thousand dollars more to another investor without doing any work. You won’t make nearly as much as the rehabber, but you will realize your profit quickly.


William Bronchick’s Real Estate Success Library Volume 1 - Flipping Properties Course

“Flipping Properties”

Make Fast Cash in Your Pocket and Get Jump Started Into Real Estate Investing!


“Flipping” properties is your fast track to fast cash in real estate. This course will show you the legal, ethical and profitable ways to generate cash NOW, not years later in real estate. Covers every aspect of quick-turning properties, from marketing to contracts to collecting your paycheck.

Flip Strategy #5: Pre-Construction

In very hot real estate markets, prices are appreciating as much as 2% per month. If you time things right, you can put a contract on a pre-construction house or condominium, then flip it to someone else when the development is complete. If it takes 12 months for the development to be complete, and the condo price is $500,000, you could make $100,000 or more in one year! Of course, the opposite is also true - you could end up losing money if the local economy tanks and you end up with a worthless condo that you can’t sell for more than you paid. Use this approach very carefully...

Flip Strategy #6: Scouting

The Scout is an information gatherer, so not technically a property flipper. He is the “bird dog” who finds potential deals and sells the information to other investors. Many people get started as a Scout for other investors because it does not take any cash or prior knowledge to look for distressed properties. The Scout finds a property for sale, gathers the necessary information, and then provides this information to investors for a fee. The fee will vary depending on the price of the property and the profit potential. The Scout can expect to make five hundred to one thousand dollars each time he provides information that leads to a purchase by another investor.

Flip Strategy #7: Illegal Flipping

OK, I am not advocating this approach, because it is illegal. Illegal property-flipping schemes work as follows: unscrupulous investors buy cheap, run-down properties in mostly low-income neighborhoods. They do shoddy renovations to the properties and sell them to unsophisticated buyers at inflated prices. In most cases, the investor, appraiser and mortgage broker conspire by submitting fraudulent loan documents and a bogus appraisal. The end result is a buyer that paid too much for a house and cannot afford the loan. Since many of these loans are federally insured, the government authorities have investigated this practice and arrested many of the parties involved. As a result, the public perceives is flipping to be illegal.

The fact is, “flipping” - as I described in the beginning of this article - is NOT illegal. Loan fraud in the process of flipping is what is illegal, so don’t confuse the two. The other six ways to flip are very legal, very ethical and very profitable!

Lease/Option 101

The lease/option can be an excellent tool for profiting on rehab properties. Many "junker" properties can be bought cheap, but this requires cash. Furthermore, you need cash to fix up the property. You also have to pay monthly interest payments while waiting for your subcontractors to finish the job and for the new buyer to qualify for his loan.


Rather than purchase the property, lease it for six to nine months with an option to purchase. If the property is not habitable, offer the owner a discounted rent with most or all of it applied toward purchase. Compare this strategy to borrowing money and making interest payments while you are fixing up and holding the property for resale. You can save yourself extra closing and financing costs by leasing with an option, fixing, the exercising your option rather than buying, fixing and selling. Better yet, fix up the property, then sell your option to another investor. Of course, make certain that your option is protected before you start sinking cash into the property (see my previous article on this site, "Lease/Option Tips and Strategies."

If you are not into fixing properties, find a subtenant who has handyman skills. Let me share a personal story which fits right into this strategy . . .

I found a vacant property owned by a prominent college professor who lived out of state. The property had a finished basement, but literally had no upstairs! The entire first floor had been cleared out and used as a place of worship. The professor, the former leader of the church, had taken out the loan on the property and been making payments for over a year after he had left town!

The property needed about $10,000 worth of work to get the upstairs back to speed, none of which I was willing to pay for or do (sorry, these hands only get dirty in the kitchen). The rents for similar houses in the neighborhood (with an upstairs) was $650. I offered to lease it from him for two years at $400/month with an option to purchase price at $40,000.

Without so much as cleaning the house, I placed an ad in the paper EL DUMPO!


RENT-TO-OWN
$0 down, U-Fix
555-5555

Needless to say, my phone rang off the hook (and onto the floor and out the door)!

Rather than look for a tenant to pay me option money, I was looking for someone with skills to do the fixup in exchange for option consideration. The first tenant, who claimed to be skilled (boy am I a sucker!), moved in an started paying $600/month.

After six months, he did no work, stopped paying and I evicted him. I advertised it again - same ad. I also made the same mistake of letting in a tenant who did no work (but paid me $625/month for a year). After I evicted him, I learned my lesson, which was . . .


NOBODY MOVES IN UNTIL HE DOES THE WORK!

This time, I found a guy who was in the drywall business. He did the work, and a beautiful job! He paid me $650/month for six months and exercised his option to purchase at $54,000, less a "repair credit" of $4,000.

This was truly Win/Win - I got paid and I didn't break any fingernails.