Land Contracts in Wisconsin: What are they?
What is a Land Contract
A land contract is a form of seller financing. It is a written agreement by which a seller, or “vendor,” promises to convey to the purchaser, or “vendee,” real estate upon the completion of certain obligations, typically on an making payments under an installment payment plan. It allows the parties to negotiate a sale when conventional financing is not available to the buyer, or is not feasible. Because it is a negotiable contract, the parties can benefit from better interest rates (and a better rate of return on investment), payment terms and minimal loan costs. In addition, a seller can sometimes control the amount of capital gain from the sale, and even use the sale as a stream of income for the term of the land contract.
The land contract purchaser takes possession of the real estate and agrees to make installment payments of principal and interest, typically on a monthly basis, until the contract is paid in full or balloons. During the term of the contract, the purchaser has “equitable title” to the property. The vendor has legal title to the property until the contract is paid in full, and then must convey the property by deed to the purchaser.
The land contract is recorded with the Register of Deeds, giving notice to all of the vendee’s interest in the real estate and the vendor’s obligation to convey the real estate upon full payment. The transfer fee is due at the time the land contract is recorded, along with a transfer return. When the buyer conveys the real estate by deed, no additional transfer fee is collected, although another return will need to be delivered.
Provisions found in a Land Contract
Careful review of the specific contract is always necessary. The State Bar of Wisconsin has a standardized form of land contract known as “Form 11” which lays out a template for the agreement. The contract can be altered on many ways. It is entirely negotiable as there are no statutory requirements or restrictions like traditional mortgage loans.
In considering a land contract transaction, you will need to determine the following terms at a minimum: (i) purchase price; (ii) down payment, if any; (iii) interest rate; (iv) first payment (often upon execution of the land contract); (v) frequency of installments (typically monthly); (vi) amount of installment and amortization; (vii) maturity date; (viii) restrictions on prepayment; (ix) if either party can mortgage, sell or assign its interest in the land contract; (x) which party is responsible for real estate taxes and insurance during the term of the land contract; (xi) whether there are existing mortgages on the property and if lender consent is required; (xii) which party will pay for recording the contract and the transfer fee.
There are also provisions regarding events of default and period to cure the default; the use of and improvement to the property during the term of the land contract; and the obligation of seller to provide title information.
Default Remedies and Cancellation
If the purchaser / vendee fails to comply with the terms of the land contract, often by failing to make payments when due, the seller has a number of means to remedy the default. He may commence a lawsuit for the balance, or each delinquent payment as it comes due in the case where there is no acceleration clause in the contract. This is most akin to suing on a promissory note since the seller can get a money judgment and then enforce the judgment through typical collection efforts, such as garnishing wages or levying assets.
Alternatively, the seller may commence a lawsuit to terminate the land contract and extinguish the purchaser’s interest, similar to a quiet title action. This approach makes sense where a purchaser has left the property, or “abandoned” it, and the seller simply needs title to be clear to pursue selling to another party, or take other measures.
The vendor may also sue for specific performance of the land contract, keeping the purchaser on the hook for the full sale price. Again, this works similar to a mortgage foreclosure, where a deficiency judgment can be entered against the purchaser following the sheriff’s foreclosure sale. Like the foreclosure of a mortgage, there is a period of redemption whereby the purchaser could save her investment and the vendor would have to deliver a deed to the property. The unique aspect of the land contract foreclosure is that the period of redemption is not set by statute (other than to require a minimum of seven working days,) but is determined on a case-by-case determination by the circuit court. In most cases the court sets a period that is less than the conventional mortgage redemption period of six or 12 months.
Most frequently, the seller uses the remedy of “strict foreclosure” to terminate the contract. In strict foreclosure, the seller decides to terminate the land contract, assume possession of the property and clear title. In the lawsuit, he asks the court to set a period of redemption during which the balance of the purchase price must be paid, or, the contract will cancel and title to the real estate (including the equitable interest of buyer) reverts to the seller without any further adjudication or sale. In exchange, the seller gives up the right to collect the balance of the purchase price or any deficiency judgment, but may still recover fees and expenses relating to the foreclosure. If redemption expires and the purchase price has not been paid, the seller’s attorney files an affidavit to this effect and asks for an order from the court confirming the judgment.
Of course, the land contract will dictate which remedies are available to the seller; yet another reason to review the specific contract carefully before entering into it.
The Land Contract is a Really a Sale subject to Seller Financing
A common misconception among parties to land contracts is that the “sale” has not yet occurred at the time the land contract is signed and filed since the seller will not required to deliver the deed to the buyer until some point in the future. Actually, the sale of the property for real estate tax purposes occurs when the land contract is executed and possession is delivered to the buyer.
Under Wisconsin law, the seller has conveyed his ownership interest in the property and retains “bare legal title” as the seller’s security interest in the property. The purchaser becomes, for all practical purposes, the owner of the real estate. The vendor retains legal title, but that title is really only held as security for payment.
Need help putting together a land contract proposal for a farm in thorp Fsa say it my best option to get started
Don’t, unless you want headaches and heart aches, unless you can afford attorneys
Thank you for your comment Tom.
Tom makes a valid point regarding any contract. Not just a land contract. The paperwork is just a small part the picture for any transaction. Always (and I mean always) strongly consider the person on the other side of the deal. You are hooking your wagon to that individual. The paperwork cannot transform them into someone else.
As I mentioned in other comments, a Vendor under the land contract is really acting as the lender for the Vendee. Sometimes, but not always, a person seeks a land contract because they are unable to obtain a bank/ credit union loan. Those institutions have individuals trained to measure whether the loan is a risk worth taking. You do not have that luxury. So proceed with caution and do your homework before entering a land contract as a Vendor. On the other hand, a Vendee also has some risks inherent when signing a land contract deal. A land contract is an agreement that can come back to bite a Vendee. A Vendee can pay the payments for years and then, due to a health issue (or some other life issue), miss one or two. When that happens, there is a breach that leaves open the ability for the Vendor to foreclose and take the property back. Yes, banks and credit unions can do that too, but they tend to be regulated that way. Vendors who do not do land contracts regularly are not. So a Vendor with a certain outlook or personality could be unreasonable and take the Vendee for a most unpleasant ride.
Land contracts are just a tool. A way to buy and sell real estate. They can work out well when both parties enter the agreement with their eyes wide open and maintain respect for each other. Please reach out to an advisor before inking a land contract. The paperwork is only part of the story. Get advise on whether or not a land contract makes sense for you, in your situation.
All my best.
Walter
How do we file our taxes as homeowner or renter under land contract
Hi David.
You own your home as a land contract vendee. You are a homeowner and not a tenant.
Note: “Lease to own” or “lease with an option to buy” is another way to buy other than via a land contract. In those cases … you are a tenant until you elect to buy the home.
Good luck to you.
Walter
Hi Carl.
Greetings to you up in Thorp. Nice area. My brother is from Brackett. Love the area.
One thing to keep in mind is that the FSA should always be brought in when working with farm transfers. It is key that whatever you decide to do … you really consider their rules and draft accordingly before you move ahead with a deal.
As for a land contract, there are many pluses and minus to consider with those. Do not enter into one without having the person helping you tell you the whole story about how they work. Be sure to ask for an overview of what happens when the party paying defaults and you have to take the land back.
Feel free to give us a call to discuss your options.
Take care.
Walter Shannon
I’m trying to find an owner who is willing to do a lad interact with me. I have bad credit, but I’m working with Lexington Law to improve our scores. But until we can get up to at least a score of 589; we wontbeabketo purchase. A land contract seemos like our only option. Can you direct me in Any way?
Hi Beth. We do not have a way to locate a seller for you. That would be a realtor in your area. Land contracts may seem appealing, but they have some drawbacks for buyers in your position. One drawback that occurs to me right away is the interest rate. Because the seller is not a bank or credit union (they can spread risk over a larger pool of borrowers),he or she is taking a much bigger risk and will need to charge a much higher rate of interest to have the land contract make economic sense. In addition, most sellers will need a rather large deposit down in order to have a land contract work for them. Both of these items seem like they would be problematic for you in your current financial condition. You might rather try to work out a “rent to own” agreement with a landlord. Those are really rental agreements where you retain an option to buy at some later date. The landlord might give you a credit for some of your past rent toward the ultimate purchase price. Good luck.
I have a question. I am a Land Contract vendee lessee, because I am leasing from the vendee of the land contract and the vendee missed a payment, therefore breaching the land contract, now the owner of the land is saying that my lease is void as well. What are my options, if any?
Hi Jacob.
The answer to your issue is dependent on the lease agreement you have in place. We have seen this very issue at our firm. In the cases I have been involved in or read about, they spin around the facts as much as the law. One thing to remember though, is that a lease right/ contract is a right/ contract that runs with he land and so it would seem that terminating it is never as cut and dry as the Vendor might be suggesting it is to you. Adding to the confusion, if this is a residential lease, is the understanding that the State of Wisconsin (and other jurisdictions too I suppose) has a number of rules and statues protecting a tenant’s right to maintain a tenancy on the books. I would have a qualified legal expert take a very close look at the agreement you have in place and see what your rights are my friend.
Good Luck.
– Walter
I am a real estate investor in the Milwaukee area. When I purchase a property, I buy it under my business LLC. Can an LLC do Land Contracts and receive a balloon payment after an agreed term to complete the sale? The Dodd Frank bill scares me.
Hi Donna.
Sorry so late in responding. This part of our site was down for awhile. Yes. sometimes LLCs can be the vendor under land contracts in Wisconsin. However, yes …. you should be very careful relative to Dodd-Frank if you choose to go that route. Below are some quick thoughts on it.
Sometimes, due to Dodd-Frank, sellers who finance their real estate transactions by a land contract must be a licensed mortgage originator or include a licensed mortgage originator in the transaction to make it work. This is particularly trust for LLC vendors. Many land contract vendees in Wisconsin are exempt though. Most are individuals who act as the vendor and keep their transactions to one a year – for balloon payment scenarios and three a year for non balloon payment scenarios.
LLCs, on the other hand, have to be careful regarding the details of the transaction. They may be exempt from these rules if certain criteria are met. Those rules are complicated and I would suggest that you reach out to a local attorney in your area and have that attorney review any transaction you plan to pursue. I often suggest that LLCs avoid use of a land contract when selling and have the buyers use conventional loans through a bank or credit union instead. It is always better safe than sued.
I am considering selling a second home on a land contract to an individual who may potentially go through a divorce. Would the buyers interest in the the land contract be considered an asset that may have to be part of a divorce settlement?
Hi Jeff. Yes. I think it would be.
We would like to sell some land we own to our son on a land contract instead of outright sale due to capital gains. Do we have to charge interest? If so, what is the minimum rate?
Thanks.
Hi Annie. Yes you do my friend. There is an IRS minimum rate. Index of Applicable Federal Rates (AFR) table is right here: https://apps.irs.gov/app/picklist/list/federalRates.html
We have a commercial property that we’re selling to the current lessee under a land contract. We’re unsure what interest rate to start at. Thinking 1% above prime with 20% down and then moving upward at quarter increments with each $5000 less in down payment. Can we request a credit report from the lessee? What other items should we request from the lessee? We would be willing to amortize over 15 years with a balloon payment after 5 years or renew/renegotiate land contract terms.
Hi Mary. The terms you mentioned for the Land Contract all seem reasonable. I would suggest a higher interest rate though.I suggest that because you, unlike a bank or credit union, are not in the lending business. If there is a default and you have to foreclose, the costs and headaches are substantial. A lending institution can more readily absorb those costs due to the volume of loans and and other aspects of their processes. Perhaps more money down too if possible.
I had a land contract that went to court and there was a strict foreclosure. We live in the apartment. What happens now if we have not moved out but an order for strict foreclosure was granted. I have a place we will be moving but it is not available until March.
Thank you
Hi Debbie. Sorry to hear that you were not able to keep up with the payments. Happens to many Vendees, my friend. Statistics show that defaults are high for land contracts. Not saying that this is your story of course … but the high rate of foreclosures seems to be related to the fact land contracts are often established between the parties because the bank or credit unions would not offer financing to the buyer. I am sorry for responding so late to your comment … my site was giving me trouble recently. The court will issue a writ which authorizes the sheriff (on behalf of the Vendor) to remove you if you are not out as directed in the court order. That is never fun. Avoid it if possible. Best of luck in the future.
I purchased my house under a land contract in February 2015 and the seller is refusing to file the contract with Douglas county. I have asked for 4 years for them to do it I have gone to the deeds office and got the paperwork and offered to pay for it and they refuse. I have invested a lot of money into the house and can’t walk away. What can I do?
Hi Chuck. What is the seller saying is the reason for not filing the land contract? Here is what I see happening sometimes … when a mortgage is already recorded against the property from a bank or credit union, the subsequent land contract will be subordinate to the earlier filed mortgage loan. Your vendor (“vendor” is the seller, you as buyer are a “vendee”) needs to obtain the consent of the bank or credit union when he or she sells a place that is subject to a mortgage. If the Vendor fails to do this, the “due on sale” clause found in mortgage documents may require payment of the remaining balance on the mortgages in full (Acceleration) as soon as equitable title is transferred via the land contract. In your case, it could be that the vendor is not filing the Land contract to avoid this issue. I do not think that the failure to file a land contract prevents the due on sale clause from kicking in. A sale is a sale, whether the land contract is filed with the register of deeds or not. Maybe you should call the Vendor and suggest that he or she talk to the mortgage bank for the needed consent and get the land contract filed. I like to see the land contracts filed in order to protect the ownership interest the vendee holds from an innocent purchaser who buys the land after a legitimate search made by a title company. Good luck.
Hello! I am in default on my land contract and the lady selling it is doing a forclosure. We were trying to find a mortgage company to get a loan but couldn’t make it happen. Then we lost income and now were too far behind to catch up. My question is this, 6months ago or so when we were supposed to have the loan finished by the seller had us sign a new contract stating if we fail to pay or keep our part of the deal then we have to sign the title back to her immediately. I’m fine with that but I am curious if she had her own agenda hoping we would fail and make us think she was being nice but since we agreed to that, what is going to be the forclosure process? Do we still go to court and get our time to reside in house or will we be leaving in 15days of signing the title back over to her? I get that she is mad and doesnt want to deal with the property anymore but I am so sad we cannot get a loan. I had every intention to pay every payment on time, just that things happen beyond our control sometimes.
Thank you for your time!
Wisconsin buyer
Hello Rosealee. The concept behind that “new contract” stating if you fail to pay or keep our part of the deal then she would have to sign the title back to her immediately is called a “deed in lieu of foreclosure”. That “dlf” concept can sometimes avoid the need for a foreclosure action. However, there is almost always a problem with that. If you have other amounts owed to other creditors, their judgments can result in junior liens against the property. Those junior liens cannot be scrubbed from the property unless your vendor proceeds with a full blown foreclosure action. Sounds like that is the situation with you. You will have a redemption period as part of the foreclosure process within which you can pay the balance owed, plus court costs and such and live there on the property. Unlike the mortgage foreclosure process, the period for redemption varies greatly from Judge to judge, County to County and even from case to case. Statute says a minimum of 7 days. I have seen periods as long as 120 days given to Vendees. Hope this helps. Good luck to you. — Walter.
Warm Greetings, Mr. Shannon~
I’m wondering if there is a statute of limitations when initiating a foreclosure. Our father has since passed and never foreclosed on a property which was/is being sold via land contract. It gets messy since the “buyer” had defaulted on many payments, filed for bankruptcy in 2019 and has now defaulted on those terms as well. Thus, he hasn’t been keeping properly taxes current. We’d like to reclaim the property and it appears the only logical option is foreclosure, via the court. Would it sit better in the eyes of the court for us to pay the delinquent property taxes? Your blog has been quite illuminating- helping us gain a better understanding of what the path forward might entail. Thank you for you response!
Hello DG.
There are so many layers to your question. The facts in your case require you to spend some quality time with a real estate layer in your area reviewing a number of items. Here are the ones that come to mind: 1. the land contract itself (what does it say concerning your rights); 2. The state of the Federal and local laws that might potentially suspend foreclosures due to the pandemic; 3. the nature bankruptcy filing and its status status, 4. Your father’s estate and who now has the authority to handle/ prosecute this foreclosure action; and so on. Look up an Attorney in your area and get on in there. As for the statute of limitations, I do not see a problem for you once you navigate the other items I mentioned. Based on what you said in your note … the breach of the land contract continues to this day. Usually, failure to pay the taxes as required under the land contract is a breach that can bring about foreclosure. Keep in mind, the land contract terms are relevant and I do not have it in hand. Again, Go see an attorney my friend. Get yourself some answers to all of these questions and any others that come up as you are peeling this onion.
Best of luck to you.
Walter
Hi, I have a land contract (vendor) in Racine, which is a 30 year amortization with a 5 year balloon. The balloon comes due 1/1/20. The vendee is not in a position to satisfy the balloon and is requesting that I continue to carry the note, with new terms/rates. Is this simply a notorized addendum and updated schedule; or dose an entirely new land contact need to be executed?
Thanks,
Phil
Hi Phil. We use an amendment to the land contract and make all of the changes on that for our clients. It is the best way to go when wishing to extend the land contract beyond its original term. It is filed with the register of deeds just like the original land contract was. You should seek counsel on that to make sure you cover everything you need to cover. There are a number of excellent real estate attorneys in your area. While it might not be possible for your vendee to do, you should consider asking for some additional money down in exchange for the extension. Have a great day. Walter
Hi,
I’m a little confused about what type of notice I should send. Is it ok to send a 5 day notice for the land contract? Or does it have to be 30 Days because it’s technically more than a year? Thank you.
Hi Mac. Please see my notes to you on your other comment. Your contract should spell out the time frame for the notice. The notice time frame is a point of negotiation in any land contract. Please take a look at page three if you used the standard Wisconsin form. Thank you. Walter
Hi,
I’m wondering if you still send a 5 Day notice for non-payment of rent for a land contract? Or does it have to be 30 days because the contract is longer than a year? Thank you.
Hi Mac.
Did you happen to use this form for your land contract? See as an example from tricounty title off the net: http://tricountytitlellc.com/PDF/landcontract.pdf
Thank you.
Walter
The reason I am asking you about that is because this is the recommended form (maybe not the latest version) for a land contract in Wisconsin and it states on page 3 what you need to do related to a notice of default. The timeline for the notice of a default for failure to pay under the land contract is set by filling in the blanks on that part of the form.
When you talk five day notice or 30 day notice (Actually a 29 day notice under Wisconsin law), it sounds to me like you are talking about a lease. A lease (Even a lease with option to purchase agreement) is very different from a land contract.
Hello, I co-signed for a house for my Son back in 2006. He ended up defaulting and I couldn’t sell the house because he had destroyed the inside. My Cousin and I created a Land Contract stating that he could take care of all expenses for 3 1/2 years and then he could purchase the house. Due to the economy/housing market, his business is just now getting back on its feet so to speak and we are wrapping everything up for the final sale very soon. We were told that we didn’t have to record this document. Now I have heard that it should have been recorded. What does Wisconsin Law say about this? Even though it is a little late to ask now, will we have any problems with the Land Contract not being recorded? Thanks for your help! Thanks for any help you can give! Signed, never cosign for anything for your kids no matter how much you love them!
Hi Lori.
Thank you for your comments.
First and foremost, I agree wholeheartedly. Co-signing is no fun. Tell everyone you know not to do that. As a parent myself, I can attest that we all know better, but we seem to make the mistake anyway.
Also, if we are being open and honest, please tell all parents out there to not do land contracts with their kids either. If the kid cannot get a bank loan, they will likely quit paying you at some point and you will be in the awkward position of having to foreclose on your own kiddo. That can make a family reunion very awkward.
You have done that though… so now let’s have you file the doggone thing.
Here is why …
If you file it, it is then in the “chain of title”. That would make your land contract discoverable by reasonable search of the public records and indexes affecting real estate in the offices of the register of deeds of the counties in which the real estate is located. If you fail to file it, then your interest in the real estate as a vendor would not be discoverable in this way. Therefore, because I search would not show the land contract, third parties have no way of knowing that you hold the interest in the real estate that you hold.
One statute in Wisconsin (section 706.09) goes as far as to say that: “A purchaser for a valuable consideration, without notice and the purchaser’s successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon a … Conveyance outside chain of title not identified by definite reference.” In short, if your rights do not appear on a filed document, you could get swindled out of the amount owed to you if a third party paid your Vendee/ son outright for the property.
Good luck to you.
All my best.
Walter
I am on a land contract in WI. Do I need renters or homeowner insurance?
Hi Beckie.
Great question. If you are buying real estate under a typical “land contract”, you are considered the owner of the real estate for insurance purposes and should seek coverage accordingly. Some people confuse rent to own agreements with land contracts. If you have a “rent to own” agreement in place, then you would be a tenant, and would carry renter’s insurance. I would suggest that you take your agreement to your insurance agent and have him or her review it for coverage. Always better to be safe than sorry on coverage.
All my best.
Walter
Curious, if you are in a land contract but the title is still held by the seller under the terms of the agreement, how can one get a homeowner’s policy to insure? Or in this case are we ‘tenants’ and need renter’s insurance while the seller still holds the property?
Hi Aron.
Great question.
Lets take a look at the wording of the model land contract for Wisconsin. It says… in part…
“Purchaser shall keep the improvements on the Property insured against loss or damage occasioned by fire, extended
coverage perils and such other hazards as Vendor may require, without co-insurance, through insurers approved by
Vendor, in the amount of the full replacement value of the improvements on the Property. Purchaser shall pay the
insurance premiums when due. The policies shall contain the standard clause in favor of Vendor’s interest, and
evidence of such policies covering the Property shall be provided to Vendor. Purchaser shall promptly give notice of
loss to insurance companies and Vendor. Unless Purchaser and Vendor otherwise agree in writing, insurance
proceeds shall be applied to restoration or repair of the Property damaged, provided Vendor deems the restoration or
repair to be economically feasible.”
This provision has been around for a long time. It tells us quite a bit about how insurance works when you have a land contract in place. There are cases out there too that state the vendee has a thing called an “insurable interest”. I think the courts recognize the point that the land contract works much like a conventional loan situation. The property is yours as a vendee and the vendor effectively becomes your lender. Vendor wants to be protected wit insurance coverage up to the amount you owe him or her under the agreement. To do that, the insurance policy would likely have the vendor added too as an additional payee up to that amount.
I know… long answer here. But the short answer is that you need to get the coverage as they buyer/ vendee and add the seller/ vendor too. Your qualified insurance agent should know exactly how to do that for you.
Have a great day.
Walter
We signed a land contract and have not closed on it yet. Our financial situation has changed and it is not in the best of our interest to proceed with the transaction. Are we able to cancel the contract before the closing date?
Hello Julie. I have some confusion when I look at your question. Normally what you have signed prior to a closing is called an “offer to purchase“…. with the financing to be through a land contract that contains specific terms. You sign the actual land contract at the closing. If that is the case, you should look closely at the terms of the offer. It will tell you what your legal obligations would be if you walk away. Often it involves some compensation to the seller paid in order to end the deal. In return, you and the seller sign a mutual release. With all of the above said, yours is a case where you should seek qualified legal counsel immediately so that you can seek a suitable (and carefully crafted) resolution to your situation.
My wife and I bought a new home 2 years ago. The old house has no liens. Our 2 sons continue to live in our old home paying us “rent” equal to taxes and insurance. We do not have any kind of contract for this. Just family trust. And, yes, there are months when we forgive them the “rent” to help make sure they can make ends meet. They are taking care of maintenance on the home, and doing a really good job of it!
It is my understanding that we have to live in the house 2 out of the past 5 years to avoid capitol gains on the sale of the home. That gives us one more year to sell the place. Our sons are not quite ready to live somewhere else and afford the rent consistently.
I am trying to figure out if selling the house to our sons on a land contract is a good idea or not. That would make it affordable to them while allowing us to make the sale and not end up with capitol gains taxes from waiting too long to sell it. I am hoping it works that way anyhow!
First question is does a land contract count as a sale from the IRS point of view for capitol gains? We would not really get up front money, and still hold an interest in the property. That makes me wonder if it would count as a sale for tax purposes since there is no actual income other than a few months of payments in the year of the contract/sale.
Second question is would the payments then be considered income? I am pretty sure that answer is yes, and that means that my first question’s answer is no, the IRS will not consider it a sale to keep from paying capitol gains tax.
Third question is if it would count as a sale, what happens if/when the kids leave us hanging in the future and we end up having to take the property back. Would we then have to pay some kind of back tax since we are not living there after a few more years has passed?
Thanks for any direction you can point us in.
Hi Jeff.
I really do appreciate what you are trying to do here…. but I have to be honest on this one. Selling a house under a land contract to your kids is a mistake. You become the lender now along with being a father and mother. Not recommended. Especially understanding that you have already forgiven a rental payment here and there.
Now some general, non legal opinion, law type stuff:
Capital gains Taxes: Provided a person is selling his or her primary residence, a land contract sale is a sale from the IRS point of view for capitol gains exemption. See: https://www.irs.gov/taxtopics/tc701 My understanding is that it does have to be an arms length deal. What I mean there is that the interest rate and deposit down, etc. has to be commensurate with other deals. Again your kids would pay nothing down and, just guessing here on how we treat our kids, probably not paying the fair market price and normal interest rate either… so I think your deal might be less defensible if audited. So, again, think twice before you do this my friend.
Interest Income: Income is reported under an installment sale. A land contract, calling for recurring payments, is such an animal. So in your case, you would be on the hook for interest income even if you pass the IRS smell test for the capital gains tax covered in the above paragraph. I do not think paying tax on the interest alone is a deal killer, but I stand by my first and second paragraphs.
Depreciation Recapture: Well this one is interesting for you. You are renting now. I am not sure what your accountant has done here, but the tax software takes the tax preparation to a depreciation screen when a rental asset is involved. If you have actually depreciated the rental property …. the IRS would require you to pay depreciation recapture tax. This is a great question for your tax professional.
Foreclosure or deed in lieu of foreclosure: If the kids leave you hanging … it gets very complicated from a legal and a tax perspective.
Legal:
You would have to do a title search to see if there are any liens on the property before you leap to having them deed it back to you. If they have docketed judgements against them, they could have junior liens that attach to the property. Those remain on the property even if they deed it back to you. The only way to remove those is though a court process called foreclosure. That foreclosure process normally takes months and costs many thousands of dollars to complete.
Tax:
The general IRS rule for this ….. found in Section 1038 of our Internal Revenue Code… states that taking a property back triggers taxable capital gain equal to the funds you receive from the vendee’s down payment and/or principal payments before the foreclosure, reduced by any gains you’ve already reported. Which in your case, would be none if all goes well above. There is an exclusion available under section 1038 if you can resell the property within one year after taking it back. That rule allows you to tack the two sales together and avoid the tax. I really do not think you want rely on that exception as your safety valve. So again, please refer to my first paragraph.
The statements made above are very general and are not intended to be legal advice. As a friend, I am saying not to do this. 🙂 These matters are so fact specific that only a good CPA with the whole story can give you the solid advice you seek. Before you do proceed, sit down with a qualified CPA and get the real answers to these questions.
Best of luck to you!
Walter
When you buy a housing Wisconsin through a land contract do you have to have a home inspection? What about well and septic?
Hi Cathy. Absolutely. When a person is a buyer under a land contract (Called a vendee) he or she is very much the same as any buyer of real estate. In fact, we always recommend that a person use a residential offer when you plan to buy a residence under a land contract and execute the land contract at the closing on the property (very much like signing a mortgage and note at that time). That offer can have contingencies … like appraisals, inspections, and testing that happen as a prerequisite to any closing. Chicago Title has a version of the residential offer here: https://www.wi.ctic.com/pdfs/RealEstateForms/WB-11%5B1%5D.pdf . The unsigned land contract is typically referred to and/ or attached to the offer so that the parties can show a meeting of the mind regrading its terms.
Always a good plan to think of a land contract agreement as an arrangement where the seller/ vendor is acting as the bank or credit union for the buyer/ vendee. I received a call today where a new client asked how to evict a vendee under a land contract she entered into a few years back. I had to mention that this would not be an eviction in this case, but a foreclosure under a Wisconsin statute 846. Folks are often surprised to hear that.
We have a land contract with my father in law and have been paying on it for over 10 years. If my father in law goes into a nursing home I heard the state can take his property. What will happen to our land contract? We have a clause that says our payments would continue until paid up to his estate.
Hi Cathy. What your father “owns” relative to the property subject to the land contract is a right to receive income. In a way, he is your lender. The short answer then is that the state would not take the house, but your father (under over simplified terms) will have to show “poverty” levels in assets and income to qualify for Medicaid assistance.
As you likely know after talking to his caseworker, medicaid has both an asset and and income component to its test for qualification. That income stream from the land contract could be a block to him receiving medicaid. We saw a similar situation recently and, in that instance, the vendee son paid the balance owed under the land contract off. The family then private paid for the father’s nursing care using the proceeds. In that case, the proceeds did not run out before he passed away. It would be best to consult with an elder law specialist for the any questions you have about medicaid. I usually refer folks to the National Academy of Elder Law Attorneys for a referral on those issues. Here is the website: https://www.naela.org/
Hello,
We entered into a land contract almost 2 years ago and our balloon payment is coming due in November. The home is new construction and was inspected by the village inspector.
Now, we have mold in the house because of improper installation of the furnace and vapor barrier. The village inspector has been back and I have him on record stating that those are the issues.
We also have front steps that are coming away from the house. The builder is not cooperative or responding to my requests for proper remediation, even though it’s under warranty.
Legally, do we have a leg to stand on? I do not want to be responsible for paying out of pocket for this because it’s nothing I did or could have prevented. We’re running against the clock for financing, but they don’t seem to want to work with us at all. We put down a lot of money.
Hi Lindsay.
That is no fun. The builder warranty issues you have mentioned are beyond the scope of this blog article. Those issues should be something you seek local counsel on immediately.
Was the builder also the seller? If so, that could bring in further concerns for the builder and help your case. Most reputable builders/ sellers want to fix these problems before they become public so that they can keep selling houses. Hire an attorney in your area and have that attorney reach out to the builder. Maybe the repairs will be made then.
As for your land contract, the condition of the house does not remove the need to continue your payments as the Vendee under that. In fact, keep those payments on schedule so as to avoid giving the owner a default counterclaim.
Best of luck to you.
Walter
I thought that it was interesting when you said that the sale of a property is made when a contract has been executed. I have been thinking about buying a home but I haven’t been sure what the process would look like when making the purchase. I will be sure to only sign a contract if I am ready to own a home since the sale occurs immediately after the contract is signed.
Hi Ashley. Good Point. That is absolutely the case. We often start with an offer to purchase that contains an attached Land contract (an an exhibit) that sets terms of the ultimate land contact to be signed at the closing. So … really … your point is applicable to the signing of the offer to purchase. Do not sign it until you have reviewed the terms carefully and know that you are ready to make the commitment to buy the home under the terms in the offer and attached land contract. All my best. Walter
I am the seller in a land contract that the buyer was sent to prison (unrelated to the land contract.) His POA quit making payments on his behalf. Do our legal options change if he isn’t able to come to court? What course is. EST to get the property back?
Hi Jess.
Good question. The process for taking a property back under a land contract does not really change in your circumstance. The one minor difference I see right away is that if you do choose to sue your buyer (vendee) for strict foreclosure, you might have to publish for service of process in order to proceed.
You could negotiate to end the land contract. This would have buyer deeding the property back to you. You should definitely confer with legal counsel or have a title company do a lien search to examine any liens that may have attached to the buyer’s interest in the property. You absolutely have to figure out whether the liens will survive and continue to apply to the property if the buyer deeds it back to you before you take the land back. If the buyer has significant liens, you will have to foreclose on the real estate in order to remove the junior liens from the real estate title.
Most likely, if you do that, you will need to file a “strict foreclosure” case with the court. This is actually a court process that you file and that eventually, if successful, rescinds the contract. You get your property back and keep payments already made. There is no sheriff’s sale. It is a costly and time consuming process and includes a right for the vendee to redemption (Paying the amount owed in a time frame) for at least 7 days following the the date of the judgment hearing. See: 846.30 Redemption period for land contracts. Nonetheless, it remains an effective way to get your real estate back. Check out Wisconsin Statutes Chapter 846 for more. See: https://docs.legis.wisconsin.gov/statutes/statutes/846/40/3/a/8
We own restaurants in WI. A restaurant is coming available and the owner wishes to use a land contract to sell it to us.
The asking prices is $550,000. He wishes to get $100,000 down and finance the rest at 6% over 10 years. I am wondering if you feel this is a good deal as it is set up here? Also, does the seller have to pay income taxes on the sale immediately or over the time in relation to the amount of payments he collects in a year?
I appreciate the help on this. I think it is fairly straightforward but not having done a land contract gives me pause. Thank you.
Dear Kim:
Exciting news on the restaurant. Hard to tell from here whether it is a good deal. The rate of 6% seems like a fair one. The $100,000 down also seems appropriate being it’s a business deal for a place that’s worth $550,000. Ten year term is also reasonable. Be sure to specify payment amounts, including any balloon payment if one is planned at the end of the term.
As a buyer, under a land contract, there are some risks that you could avoid if you used traditional bank mortgage based financing.
For one, you are dealing with an unsophisticated lender. When you do a land contract with the previous owner, that seller becomes your lender. That can lead to a whole heap of misunderstandings and potential litigation.
Legal contract breaches under a land contract can be hard to interpret, and that fact can lead to confusion and disappointment for both parties if things get sour. For instance you can’t commit “waste” on the property or the land contract holder can sometime successfully foreclose on it. Waste could mean anything from letting it get run down to failing to pay in the real estate taxes (another breach in and of itself). An angry or unsophisticated land contact seller could try to use these oversights in order to take you property back. In addition if you happen to be late on a payment, under some land contracts a foreclosure can occur after a noticed is provided. While these things are also true traditional mortgage loan, normally, Banks was smart enough to know that minor breaches should be overlooked in favor of keeping you as a customer. When foreclosing on a land contract, the seller (called a Vendor) get the restaurant back and retain the payments made to date.
The seller’s nose is always in your business when he is your lender too. Another risk for you is more logistical and emotional. I’ve noticed in my practice that it’s better to have separation from the previous owner when taking over a restaurant or other similar facilities. Invariably, because you owe money to the old owner, the old owner feels an authority to try to manage the restaurant with you. This can create a great deal of fix friction and hardships.
While I think of land contracts for a commercial purchase of a restaurant fine in a general sense, (happens all of the time) I’d recommend that you pay the previous owner a lump sum using a bank loan and cut your ties. On the other hand, if you do go with a land contract in this deal, be sure to talk to an attorney about the process. Use a Wisconsin offer form and refer to the land contact as the financing contingency. Spell our what you are buying and what the payments are going to be.
Best of luck to you.
Walter
PS: Yes. The seller will likely have to pay capital gains on the sale and tax on the interest they charge you. You should always contact your tax adviser before selling or buying a business using a land contract or otherwise.
I’m about to enter into a land contract but have bad credit. Do I have to show my credit report to the seller? This is in Wisconsin
Hi Michael. Yes. Seller/ vendor is (in effect) your new lender. You need to supply that info to the Seller. Your full disclosure helps to support that the deal was above the board- hence more enforceable when push comes to shove. Well.. put another way my friend… the seller would be a fool not to ask for it.
My wife and I entered into a land contract with a property of my parents a few years ago in northern Wisconsin. We have reached a point where both parties would like to cancel the land contract. They would retain what we have paid thus far, but there would be no obligation of future payments, and they would retain ownership.
When both parties agree to cancelling a land contract in WI, is there a more simple process that avoids any ‘foreclosure’ procedings?
Hi Tyler. Yes indeed. You (as vendee) can deed your interest in the land contract back to your parents (vendors). I assume you are current on the payments and that their are no liens on the real estate. Might be good to have a title company run a lien search on the real estate prior to deeding it back to your parents. I recommend that be done as a precautionary measure so that you can be extra sure that you are passing clean title to them. Have a great day. Walter
I am looking at buying a house that I currently living in with my soon to be ex. She holds the mortgage and can’t afford the home. Can we create a land contract with her still using the existing mortgage? Will I have to do a credit check with her mortgage company?
Hi Steve.
Thanks for you comment/ question.
I have to be frank here. Avoid this entanglement at all cost my friend. Others have attempted this and wished they did not do it.
You are essentially placing your ex-wife in as your lender. You are giving her a right to foreclose on you should you falter (breach) in any way relative to the agreement. When she does foreclose on you successfully, she keeps all of our payments and keeps the house. I recommend that you not use a land contract in this way and go out and obtain a conventional loan from the bank, pay your ex off in exchange for a deed to the house.
Assuming you do not listen to the remarks above, you can enter into a land contract and have the vendor (seller) retain the underlying mortgage. You and the vendor absolutely need to consult with her lender prior to entering into a land contract with your ex. If you fail to alert the underlying lender (and basically get the consent to do the land contract), the lender can… and sometimes they do this… accelerate the note and call it breached when full payment is not timely received. The mortgage lenders use language found in the documents call a “due on sale” clause to accomplish this.
Also, yes, do a credit check.
Did I mention that it is not advisable to do this? The fact that you are divorcing makes a contractual connection like this inadvisable.
Let me know know it goes if you do proceed.
All my best.
Walter.
Greetings,
Very excited that I came across this website/page! I’ve been conducting some research into land contracts in WI for a little bit of time and couldn’t obtain very informative information until now. I do have some immediate questions though. 1) Does the seller have to structure a contract with any interest? 2) How does insurance work with land contracts and would the purchaser need to put down 20% to refrain from the PMI?
Hi Matt. Great questions.
Interest…
Yes. A minimum level of interest is normally required. More importantly, charging interest is strongly encouraged. Keep in mind the fact that vendors are not banks or credit unions. They are essentially granting a loan to the Vendee when they are not in the business of doing so. Banks and credit unions have volume. Volume allows the lender to more easily absorb the bumps an bruises caused by a bad loan. Knowing that, it makes sense that a vendor would charge higher interest than a bank would for the same circumstance in order to offset the greater risk of harm if the deal fails. Another important point in this direction is that often (not always)the vendee is seeking a land contract because the banks and credit unions will not lend them money. Another reason why interest should be higher for this kind of transaction.
Insurance: The Land contract usually requires the vendee to carry coverage and show proof of it to the vendor. Both vendors and vendees have an insurable interest in the real estate and can insure the property and probably should consider doing so.
Money down.
See the points for higher interest stated above. 20% down should be a starting point for the vendors. I usually suggest a great deal more, if possible. as I mentioned… being a vendor is risky business and a large down payment is a decent way to level that playing field. I failed to mention the fact that a foreclosure of a land contract is not very much fun and can cost a pretty penny too. Yet another reason to require a large chunk down and a healthy interest rate under the agreement. I am not familiar with using PMI insurance to support a Land contract the same way banks use it with mortgage loans. Not saying it is can’t be done… I just have never dealt with it in that context.
Hope this helps add perspective Matt.
Have a good one.
Walter
Hi I am in the process of purchasing a house through a land contract with my parents. I would like (and my parents would like) me to sell this house to my daughter with her getting a bank loan. (so I can pay them back the rest of the money owed) My land contract gives me the option of selling the house with the vendors written permission. Do I just take this notorized letter to the bank at closing or are my parents going to have to deed me the house. This is a wisconsin land contract. (It has been in affect for years.
Hi Lisa.
The sale to your daughter is a process that can be handled by a Law Office or a Wisconsin title insurance company.
The process involves using documents (satisfaction & deeds) in exchange for the purchase proceeds.
Here is a quick overview…. It sounds bad here because it involves a few steps, but it really is no big deal.
Just guessing here, but if your folks have a note and mortgage on the property… that would have to be paid at closing. In addition, any amount owed to your folks under the land contract (less the amount paid to their lender) would have to be paid at closing. You might also receive funds if the sale to your daughter is for a price that produces proceeds in excess of the amounts needed for your folks and their lender.
The mortgage holder bank for your folks (if any) would, once paid off, provide a satisfaction of the mortgage at closing so that the title insurance company can file that to clear that off the title for the property.
In addition, your folks would execute a deed to you in satisfaction of the land contract in exchange for their receipt of the payoff amount owed under the land contract (less any amount paid to their lender).
You, it turn, would execute a deed to your daughter in exchange for her paying all of the above, plus any amount you might have due you after paying your folks (and their bank) off.
Your daughter’s lender, if any, would file a new mortgage against the property after the old mortgage (Parents’ lender and the land contract both show on the record as satisfied/ completed.
I suppose one could have deeds go from the Vendor (transferring parents interest to your daughter) and the Vendee (transferring your interest to your daughter) to the new purchaser, rather than do the chain approach (ie: one to you from folks then from you to your daughter) mentioned above.
These steps are generic and for illustration only. Anyhow, I hope this overview will help you understand the basics.
All my best.
Walter
Hi Walter, I’m looking at purchasing a house from my grandmother on a land contract, she still has a mortgage on the property. Is she still able to sell it on a land contract? If so, are there anything as a buyer you should be aware of entering a land contract on a property that has a mortgage?
Hi Justin.
It is very common to have a land contract sale involve an underlying mortgage loan in the Vendor’s name. I was just telling Tim Heschke, in another comment, that almost every loan and mortgage held by a bank has a provision related to “Due on sale”. A “due on sale” clause gives the bank the option to accelerate the loan if the borrower sells the property. Even if that sale is under a land contract. You (Vendee under the land contract) definitely want to be aware of that point and suggest that your grandmother (Vendor under the land contract) reach out and obtain approval from the bank before she proceeds.
Most banks elect to not exercise the right to do so in the case of a land contract as long as the loan payment history of the seller (vendor) under the land contract is good and no other breach is present. Always best to communicate with one’s lender prior to selling the secured property under a land contract to make sure that it will not accelerate the loan.
There are many risk when buying under a land contract my friend. One that comes to mind for you (and in any family sales paid over time) is that the deal with your Grandmother can easily become a deal with your whole family. If your Grandmother were to pass away, your new vendor would be Grandmother’s heirs. Hope they all love you as much as she does. Frankly, if not, they may be ready to pounce if you breach any of the terms of the agreement. I only bring it up because … well … I have seen it. If the Vendor successfully forecloses on you, the Vendor gets to keep the house and all of your past payments.
Only my opinion, but probably the best way to go is to plan on a land contract with balloon payment after a few years and plan to use a conventional loan to pay your Grandmother off at that point. That way, post corona virus family reunions could continue to be a possibility.
Good luck to you and your Grandmother.
All my best.
Walter
Is there any reason why the lender would “call in” the loan if we do a land contract sale?
Hi Tim.
Thanks for your question.
Almost every loan and mortgage held by a bank has a provision related to “Due on sale”. A “due on sale” clause gives the bank the option to accelerate the loan if the borrower sells the property. Even if that sale is under a land contract.
Most banks elect to not exercise the right to do so in the case of a land contract as long as the loan payment history of the seller (vendor) under the land contract is good and no other breach is present. Always best to communicate with one’s lender prior to selling the secured property under a land contract to make sure that it will not accelerate the loan.
Have a great day.
Walter
We want to purchase raw land from my aunt possibly through a land contract. If I go this route, would I be able to borrow from the land before my land contract is fulfilled or would I need to have the title free and clear to do so? Thanks in advance for your time in this matter.
Hi Michelle.
I am not aware of a legal prohibition blocking a lender from offering a loan to a current land contract holder and holding a consecutive note and mortgage on the same property. However, … fair warning my friend … in my experience, the lenders in our area just do not want to lend additional mortgage money to the land contract vendee (buyer) when the plan is to keep the land contract in force alongside the mortgage loan. There are many reasons why it is just not optimal for the lender to do that.
Vendors (sellers who finance buyers under Land Contacts) do not like this side by side (Mortgage and Land contract combo) plan either. For example … Conventional construction lenders usually require a first lien on the mortgaged premises due to legal requirements- and investment criteria. For the Lender to play ball in that instance, the vendor under your land contract would have to subordinate (put his or her rights behind the commercial lender) the Land contract rights to the conventional construction lender in order for it to fly. Being placed second place (behind the new lender) in the event of a default is a position most right minded vendors should refuse to take.
That being said, it is very common to borrow funds from those same lenders in order to pay the land contract off either when it balloons (a final lump sum payment is due) or to pay it off early (pay off even if installments are still due). So, the practical answer is that you should plan to pay off the land contract when seeking funds from a bank or credit union.
Have a great day.
Walter
Can a vendor have multiple land contracts for different properties & vendees?
Hi Aron.
Great question.
The answer to this question is, as you might suspect, complicated. It depends on your time frames, the type of properties involved and the parties involved. Due to a Federal law (Dodd-Frank Act and related regulations), there are limitations on how many land contracts, purchase money mortgages (seller loans secured by a mortgage) and “leases with options to buy” an investor can put in place without being or using a “licensed mortgage originator”.
I do not have the room here to cover all of this with you. I normally suggest that folks limit their residential land contract deals, residential mortgages, and residential rent to own deals to three or less a year. We also assist with forming LLCs for rental investors wishing to buy this way as a way to maximize the number allowed. Of course there is a lot more to all of this. There are some pretty darned good articles on this out there on the web.
I would suggest that you talk to an attorney that knows the federal lending laws up and down before you take off doing a bunch of land contracts. Attorneys specializing in finance law to this level are usually with larger firms.
Be careful and check the road conditions before starting this journey.
Best of luck to you.
Walter
I am truly thankful to the owner of this website who has shared
this great paragraph at at this time.
Hi Jeanne.
Thank you for your kind words.
I am very glad to lend information as I can.
A person needs to use caution and understand what he or she is committing to when entering into a land Contract.
Have a great day.
Walter
I’m just learning about all this and find it fascinating, Thanks to you for answering questions helps me learn the ins and outside in Wisconsin.
Thanks for your comment Sheri.
Have a great day.
Walter
We are looking into purchasing a home and land from my parents on a land contract. I see above that the terms of the land contract are flexible. A friend mentioned that the minimum interest rate you are allowed to charge a family member is different than a non-family member…..is this true?
Hi Kaitlin.
I think I might have responded to this one already.
However, just in case I have not, please google: “IRS minimum interest rate rule”. Please do some reading on the IRS website. You will note that related parties are required to comply with the rule.
Between you and I, I refer to this rule for all of my clients. I think that if you go too low on the interest rate you kill the enforce-ability/ integrity of the contract. I suggest that any contract you put together and sign needs to look like a square business deal in order to hold water in court or in the eyes of the IRS or to ward off other parties that might test whether it is valid or not.
Take care.
Walter
My land contract expired 3 yrs ago but i been making on time payment still for the last 5 yrs. I wasn’t giving notice that it expired or was i giving a new contract by seller. What can i do because now she trying to evict me for none payment for 5 months but i made my payment. Never missed a payment in 5yrs.
Hi Shay.
I just responded to Lisa about this…. so, for the sake of time … i am going to just repeat a lot of what I just said to her ….
The Land Contract is an agreement you are responsible to follow, regardless of what the Vendor/ Seller notifies you about. The answer to your question depends on what it says.
Many land contracts call for a large balloon payment at the end of the land contract term. If that is true in your case, you are in breach if you did not make that larger payment. In short … Your Vendor can sue (not eviction but foreclosure in Wisconsin)to take your land back.
If your land contract ended because you have made all of the required payments under it without the balloon aspect, then you own the property and need to have the Vendor (Seller) execute a deed to you in satisfaction of the land contract.
Finally, I know of a few land contracts that automatically renew for a new term. Rare … but they are out there. If the land contract says that, then you are good doing what you are doing.
As you can see, it all depends on what you agreed to my friend.
If you can get a loan to pay your vendor off, you should do so now Shay. I strongly suggest that you reach out to and hire a qualified attorney to get your situation straightened out.
Good luck to you.
Walter
What happens when your land contract expires and you where never notified by seller and continue to make payments?
Hi Lisa.
The Land Contract is an agreement you are responsible to follow, regardless of what the Vendor/ Seller notifies you about. The answer to your question depends on what it says.
Many land contracts call for a large balloon payment at the end of the land contract term. If that is true in your case, you are in breach if you did not make that larger payment.
If your land contract ended because you have made all of the required payments under it without the balloon aspect, then you own the property and need to have the Vendor (Seller) execute a deed to you in satisfaction of the land contract.
Finally, I know of a few land contracts that automatically renew for a new term. Rare … but they are out there. If the land contract says that, then you are good doing what you are doing.
As you can see, it all depends on what you agreed to my friend.
I strongly suggest that you reach out to and hire a qualified attorney to get your situation straightened out.
Good luck.
Walter
Thank you Mr. Shannon for this article and a brief talk about the process and protections. You have eased my concerns.
Hi Chris.
No problem at all.
Have a great day.
Walter
My wife and I are the vendors for a commercial property. The vendee has informed us that he/she has no ability or intention to make the “balloon payment” due on October 1. We would like to regain control of the property so that we can sell to someone else. We have heard of forfeiture and the process of foreclosure. Which is the fastest way we can regain our full ownership of the property? We know that there is a tax lien on the property and have not as yet made a title search for potentially other liens.
Thank you!
Hi Paul.
Thank you for your question.
Your title search will reveal your options.
The only way to scrub liens is to foreclose. Nothing fast or cheap about that. However, the process works.
If the liens are minimal (and you can afford to take those on) .. then you can do a deed back from the vendee. Coined… a deed in lieu of foreclosure. Be sure to Google that. Fun stuff comes up when you do. Deed in lieu is fast, but too ugly of an option if you have a mountain of liens to contend with. I always like to ask my clients to think it through. Ask the question… Would a new buyer pay enough for the real estate to pay off the remaining balloon to you, plus enough to cover the liens, cover you holding costs and attorneys fees? If so… then you are good to go with the deed in lieu. If not… foreclose.
Be sure to seek legal help with this problem. This is not a do it yourself situation my friend.
All my best.
Walter
Oh and Paul… All of this assumes the Vendee actually defaults. Has not happened yet. 🙂
My sister-in-law is the vendee on a piece of land that she now wants to sell to me. She still owes on the land and has to pay off the vendor before she can sell it to me, as we understand it. Curious if we can go to the vendor together, I pay the balance and have the deed transferred to me rather than her?
Hi Laura.
This process has complications. No real shortcuts here. The best thing to do is to follow some formalities.
Hard to know all of the steps needed without knowing all of the facts.
You should use a written offer to purchase the property from you sister. Your sister should accept it in writing. From there, you submit the offer to a title company who can search the various players/ layers involved in the transaction and help to handle the needed paper/ payment trail. IE: Handle the closing of your purchase and your sister’s sale.
The original vendor could still be subject to a bank or credit union mortgage on the property that also has to be paid off. So, assuming that, you have kind of a domino thing…. you pay your sister (she deeds to you after she has full ownership); she pays the Vendor (and obtains full ownership .. which she transfers to you); vendor pays the mortgage (Bank or credit union files a satisfaction of mortgage upon payment).
Behind all of this is the need to verify clear title. The title company can issue title insurance that assures that there is no cloud on title when you do obtain ownership.
Seek help from a qualified professional for this transaction my friend.
Some expense related to solid advice and assistance now could easily save a potential nightmare later.
All my best.
Walter
This is a doozy. I know I should probably hire a tax profession who knows about this kind of stuff, but I would to understand this first hand and do it on Turbo Tax.
So in 2002 my husband to be, bought his first house and so did I. We were married in 2006, but due to our work, we didn’t move in together until we found another house that we both loved in 2012. I sold my house and we sold his on a land contract in 2013. In 2015 my husband past away and through probate, everything transferred to me. The house that we sold on a land contract, sold for $89,000, he paid $120,000, but economy tanked. So balloon payment was due of $58,000 in Aug. 2020. Purchaser of LC handed me back the house in July 2020. (I had an attorney draft the paperwork). So I took out a $20,000 loan to make improvements to the house and listed it just sold it for $139,000 dec. 18th 2020. I used the proceeds to pay off my primary house and buy a newer vehicle. My only income is SS survivor disability benefits which is about $!2,000 a year. I’m very worried about capital gains. I read to find the FMV when my husband passed and subtract that from the selling price, closing cost and improvements. Anyone ever have a similar situation. Thanks in advance.
Hi Jill.
That is a doozy. Yeah, be sure to hire a tax pro on that one. The professional will figure this all out for you and likely maximize your position in a way that will easily be worth the fee my friend.
You will owe tax on the gain for the house. That gain subject to that tax is calculated based on the sale amount minus any cost basis you have in the house. The calculation used to determine the cost basis in your case has some complexity. It is best measured after you received ownership in of the house from the vendee in 2020 with some other factors considered. We do know you put 20K into the house. Unsure if you have any other additions to the basis. cost basis could be close to or at 20k. That would have you paying tax the net proceeds you received at closing (after paying the 20k off and other closing costs.
You mentioned valuing the property at your husbands date of death. You would do that in order to obtain a value of a step up in basis on the property. The step up artificially makes it so the value at the death of your husband would be considered what you have into it (new higher cost basis). I am not sure if that is available here. I question the application of the step up rule because the property was not what was inherited. The rights under the land contract were inherited. You received the property ownership after your husband passed. So, you can see… I too would ask my CPA for a breakdown on this. You should too.
Good luck on this.
Let us know how it works out.
Sincerely,
Walter
Hello,
I own a lot that a builder would like to build a spec home on it to sell (our own build fell through so this is a positive for us to get rid of this lot). Can we sell him the lot through a land contract and request no interest (i.e. we just want to be reimbursed our cost of the lot at the time he sells the house he builds on it – we would put a date where the full amount just would have to be paid for by)? Anything else we need to consider?
Thank you!!
Hi Sarah.
Thank you for reaching out.
You should not do this.
Just sell the lot outright to the contractor and avoid the entanglement of a land contract underlying a spec house construction project.
I would need a ton more time and space here to go on about why this plan should not move forward. Here are a couple of random thoughts on it … You should never take the risk involved in loaning money to a contractor that is not able to just borrow the bank money on the lot. As for the construction phase … liens and financing for the greater construction project can create issues for you. Keep in mind that banks lending money on the build of the spec home will, understandably, always make you sign a subordination agreement placing your rights to collect on your land contract below their rights in the pecking order.
Also, as a side point, you cannot have a land contract at zero interest. The IRS requires a minimum rate of interest on land contracts.
This is not an idea you should pursue my friend. Do not do it.
Take care.
All my best.
Walter
PS…. Do not do this. 🙂
Hello,
My husband and I have been on a land contract for our home for the last 5 years. We are currently applying for a mortgage so that we can get out of the land contract. The problem we have is that the land contract was never recorded in our county. Now our credit union is asking for it to be recorded. What do I need to record the land contract?
Hi Jennifer.
Sorry for the delay in responding. You have likely solved this issue already. However, it is good to know the process and to understand that it is is fairly straight forward. You would take the land contract to the Register of Deeds in the county where the property is located and file it. There will be a filing fee and transfer tax to be paid. Before you do file the Land contract in this way you must first fill out a transfer return on line and print off a transfer return receipt off that would be submitted along with your land contract. Go to State of Wisconsin – Department of Revenue and find eRETR—Quick Start to get that done. Otherwise any real estate attorney in your area would be glad to handle it for you.
Best of luck to you.
Walter
Hi Mr. Shannon, after my parents passed away, 8 years ago, we (my 3 sisters and I) inherited our family farm near Iola Wi,. It currently is in a C-corp with each of us equal share holders. The only asset is ~160 acres of tillable land. We have been renting the land out to a local farmer for a number of years, even before our folks passed. Non of us reside near Iola and are looking to sell the land/cooperation, however the few farmers we approached do not want to buy the C-corp but are interested in purchasing the land via land contract. We are asking for 624K for the land, with 450K down @ 6% interest for 3 years maybe 5 year term. We really do not want to sell via land contract but seems like the farmers we are talking with want to go that option.
If you have time, could you please let me know your thoughts on this? Thanks for your time and help!
-Daryl
Hi Daryl.
Most Farmers do not wish to purchase the corporation itself and would rather buy its assets. Too many headaches with picking up a corporation where another farmer left off. Those taxation and legal reasons/details behind that are beyond the scope of this blog. But that farmer’s answer to your proposal makes sense.
Selling by one farmer to another farmers by land contract is fairly common. Times have been pretty hard for many of our farmers lately and so Land Contracts are the main vehicle they have available to buy with. They use the proceeds from the land they are working to pay the agreed payments with hopes of earning a buck or two above that. The large amount down and proposed rates for the land contract seem favorable to your camp. I think it is reasonable to proceed along those lines if you do not mind payments over time and being another person’s bank for a 5 year period. Otherwise, I think you could stand firm and insist they use conventional financing through the bank and avoid the land contract. There is only so much good farmland out there my friend. That gives you some bargaining power.
All my best.
Walter
Thanks for the blog. After reading it I am sure I can do my own taxes. The blog is really helpful
Thanks Nick.
Have a great day.
Walter
Hello, my son is interested in purchasing a home on a land contract. The seller seems kind of shady. I don’t know him at all. We will have the land contract recorded and doing a title search through the title company. However in the future if the seller gets a judgment on him, is the property protected? I also read in your blog that the seller may refuse to sign over the deed when the house is paid for. Is there any protection on that as well?
Thank you for your time
Alicia
Hi Alicia.
Let’s imagine that the deal you are considering is like spoiled food in your refrigerator. Trust your instincts. If it smells bad, throw it away my friend. Unless it is limburger, of course.
Imagining that you might decide to jump into the deal… (Which you should not .. see note above about the refrigerator) Here are a couple of quick/ random thoughts. Consider what happens if the vendor/ Seller does not pay on his underlying mortgage. The seller could default on his loan. If that happens, you will have a mess. The bank will foreclose on the property and have priority over your land contract. Some land contracts allow you to pay the seller’s mortgage in lieu of your installments. That is one answer to that issue. A judgement against the underlying vendor can also be annoying. However your land contract would have been filed with the register of deeds before the judgment is entered. so you would have priority over the those liens (in the jurisdictions I am familiar with).
It is very rare to have a vendor resist the transfer of legal ownership (via a deed to you) after you have made all of your payments to him or her. In a case like that, you would have to threaten and perhaps file suit to get that accomplished. You would need to show the terms of the deal and prove you complied with everything. Court is no fun and expensive. See refrigerator comment above.
Land contracts are risky for both buyer and seller.
Trust your instincts and either walk away or suggest that your son buy the property with conventional bank or credit union financing.
Sincerely,
Walter
Sounds like you deal with a lot of land contracts! Can you give an example of a typical down payment, interest (higher or lower than a bank?)) and terms for a commercial property. Thanks!
Hi Sandy.
Great to hear from you.
Yes we do see Land contract sales regularly in our real estate practice.
Great questions.
Always good to keep in mind that the land contract vendor (seller) is almost never a sophisticated lender. This might be the one loan this seller will grant in his or her entire life. A Bank will normally has an underwriting department reviewing the deal prior to letting it move forward. The farmer selling his land on land contract does not. Banks can mitigate the losses associated with a sour deal by offsetting it with the gain received the other “good loans” granted. Our Farmer with the one land contract in place cannot. finally, the buyer might be using a land contract because he or she does not have the ability to get a conventional mortgage. A risky person to deal with, for sure. Finally, foreclosing on a land contract is a court process that can be costly.
With the above points in mind, Vendors (Sellers) need to ask for a sizable amount down and ask for a higher interest rate than a bank in the same situation. I would suggest a down payment of around 1/4 to 1/3 of the purchase price and an interest rate of at least one or two percentage points above the bank rate for a similar transaction. Commercial terms in the land contract can really vary wildly depending in the type of commercial property. WE tend to take those one at a time so that they can be tailored to the deal. If you can take a look at a commercial mortgage from a bank, that document can give you some very good ideas/ language that you might use to supplement the base land contract that is out there.
I hope this response helps you.
All my best.
Walter
We have a land contract we entered into about 4 years ago. It was notarized and signed in front of a lawyer and we were told upon final payment then the title would transfer to us. We are looking at paying if off completely this next year, but I was made aware they did not file it at the court house, we have also been paying the taxes each year and they remain in the former owners name, but we were told by the registrar of deeds usually it is filed and then the taxes would come under us. I am just wondering do we have anything to worry about with it not being filed? Are there any surprises fees we’ll have to pay and if they haven’t been claiming our payments, can that come back at us?
Thank you,
Ashlee Wied
Hi Ashley.
Filing: Yes
You should reach out to the Seller/ Vendor. Try to obtain the Land contract and file it with the register of deeds or have the seller do that. Keep in mind that filing the land contract is how the world knows you are the owner of the property. If it is not filed, there is no notice to third parties that the land contract is in force. That creates risks for thing’s such as sales to other parties unaware of your interest and liens created by the debts of the seller being attached to your property.
Do you know if the seller/ vendor still has loan balance due on the property? If so, that real estate loan is likely secured by a mortgage. Mortgages have “due on sale” clauses. That means the bank can call the loan on your seller once it is sold under the land contract. Some sellers believe that the filing of the land contracts will cause the “due on sale” clause in the underlying mortgage to kick in. Most banks agree to waive that as long as the payments are still coming in.
Seek counsel from an attorney in your area immediately. Make sure things are in order. Have the land contract filed before you pay the final payment.
Final Payment: You should be fine…but be careful, get help, and follow a process.
You do still have contractual rights to the property even though the land contract is not filed. What you are looking for is a deed in fulfilment of the land contract. The deed is from the vendor to you and is supplied to you when you make the final payment to the vendor. That is also filed with he register of deeds. I like to use title companies as a clearing house for this process. In cases like yours, the land contract is filed contemporaneously with the deed. Perhaps you could call a title company in your area and see if they can assist. I do not know if you did any title work when you received the land contract initially. If not, you certainly need to obtain title insurance coverage at the time of final payment. The title company can take care of that for you as well. The title company can also use proceeds from your payment to pay any remaining balance on the seller’s underlying note, if any.
There will be fees for closing/ finalizing the land contract. I would ask the title company for a summary of those.
As I said…. You have rights.
Seek help from an attorney. Make sure you are protected.
Hope this helps.
Good luck to you.
Walter
I am considering a land contract on my families property, 8o acres and house. The house does need work, as it is almost 120 years old, but it is in pretty good shape for being that old. It is currently owned by my great aunt. We have not discussed any terms yet, but I have some questions. She is 83 years old. She does not live on the property, and hasn’t for 2 years. Currently nobody lives there. I have been caring for the property, and she is well aware of my intent to obtain the property and is fully on board with it. Like I said, we have not made any terms or conditions as of yet. My main concern, is due to her age, if something were to happen to her in the course of the land contract, what happens then? Would there be an option for the property to be turned over to me at that time? Or would it be more inclusive than that? I am looking at what my best option would be. I am unsure about standard financing, as my credit is building back up, but not great at this time due to divorce. I also don’t have the money for a down payment at this time. I’m in the 640-650 range. The property has been in the family for over 140 years, and there are no liens or money owed on any of it. She wants me to have it one way or another, and I am looking at what my best options would be. Thank you for your time and consideration.
Hello Brook.
It sounds like the transfer of the family property to you makes sense. The hard part in this is that there is no one way to go that is better than another way. So much of this depends on facts and the personalities involved. You should hire someone who can spend time evaluating the whole picture here.
Some quick thoughts below (Of course just general ideas…. you should seek counsel)
A conventional loan is cleaner for you going forward. From what I have seen, your credit score is still in the range of a loan, depending on your income and other things beyond what you have stated here. I would suggest that you consider that first.
As for a land contract, I think your Great Aunt’s age is a factor to consider. The land contract, if not already paid off, continues after her death and your new “Bankers” will be her heirs. They may not perceive your purchase in the same way she does, so if you default, you could find yourself in a foreclosure situation. Land contracts rarely look at “arms length” / legitimate without an ample down payment. Your lack of one could give the perception that the land contract was not negotiated in good faith. Also, as a rule of thumb, the interest rate under a land contract would be higher than the rate under a conventional loan. The reasoning behind that is that your great aunt is not a bank. She cannot perform underwriting like a bank, nor can she mitigate a nonperforming loan loss with the profits flowing from other performing loans. In short, you should provide a down payment on a the land contract in your case and pay a reasonable interest rate. I would also suggest having the property appraised to set the sale price. If you follow these guidelines, you will be in a better position if you are under a land contract when your Great Aunt passes and someone else steps in as your bank.
Sounds like your Great Aunt would also consider a gift to you either while she is alive or at death. That is, of course, up to her my friend. If a gift is part of this, it should be carefully considered and documented. She should definitely seek the advice of an attorney on that.
Good luck.
Walter
I am considering a land contract to sell me home to my daughter. Do I need to charge her interest? I also have a balance on my mortgage so I need to know if that would be a problem. I I need to register this contract? What should I be aware of?
Hey Dawn.
Do not do it.
Okay so assuming you ignored that …
The Rate
You are required by law to charge at least the IRS minimum rate on the Land contract. As I have said a few times here. you are not a regular lender, Regular lenders underwrite loans (stress test them first before granting them) and, frankly, they can spread losses for nonpayment of a single loan over the profit received under the many loans they have that are being timely paid. Knowing these things… it is more typical to charge higher rates under land contracts that you see for conventional mortgages. Make the rate ample.
Due on sale clause.
It is pretty common for a Vendor’s underlying mortgage loan to remain on the real estate when transferring the property under a land contract while the land contract in force. However.. in your case, be sure to let your bank know and get its written permission on it prior to doing the land contract with your daughter. Here is why …. Every mortgage loan allows the bank to accelerate (make the whole thing payable) when you sell the property. This right is found in a typical mortgage clause labeled as: the “Due on Sale” clause. A land contract sale is such a sale which could make the whole loan immediately “due”. However, there is good news … most financial institutions do not enforce the due on sale clause if they continue to receive timely payments on the Vendor’s underlying mortgage loan.
Filing the Land Contract
If you do execute a Land Contact, be sure and file it with the register of deeds office located in the county where the property is located. This gives third parties notice of the parties’ rights under the agreement.
Do not do it.
Do not sell you house to your daughter under a land contract. Have her obtain a conventional loan. It is almost never a good idea to become you daughter’s bank, my friend. #familywreckedbycontract
Best of luck to you.
Walter
PS: Did I mention that you should not do this? 🙂
I’m potentially going into a land contract as the vendee. I’m wondering what happens at the end of the LC…. when the “balloon payment” goes into effect. I’ve been told that, to make my balloon payment, I wouldn’t need a new mortgage but to apply for refinancing on the property. Is that correct?
Hi Roo.
Good question.
Options when the Land Contract Balloons
When you reach the point in time where the payments balloon (When a batch of money being due at the end of the payment term), you would normally use the house you hold/ own under the land contract as the collateral for a new loan that you obtain through the bank. The bank loan proceeds are used to pay the Vendor off and the Land Contract would terminate at that point. The balloon has to be paid on time, the Vendor deeds the property over to you in exchange of for payment, and a new bank who gave you the loan places a fresh mortgage lien on the property.
If I were to take you literally … as “refinancing” the land contract … that could be accomplished by extending the land contract for more years after it balloons. This can only be done via an agreement to do so with your Vendor. Sometimes, rather than extending the Land Contract, the parties replace the matured (ballooned) land contract with a brand new Land Contract with your Vendor. These “refinancing” instances are much more rare than getting a bank loan and paying the Vendor off with the loan proceeds.
Closing Preferred when paying off the Land Contract
We normally set up a “closing” here locally with a title insurance company. If you have one assist, the title company can act as a clearing house where your final payment made to the Vendor (from your bank loan proceeds … and while paying off any underlying mortgage note the Vendor might have against the property … and filing the necessary new mortgage against the property to secure your new loan) is made at the closing in return for the deed in satisfaction of land contract and a 2 title policies: one indicating that you have clear title going forward and another insuring your bank that title is clear. All of this costs money, so figure closing costs into your loan or bring cash tot he table at the closing.
Good luck to you.
Walter
I have a land contract with someone and when things don’t go this persons way he holds this over our heads and tells us he is gonna sell the house and evict us, is there anything we can do to insure this will never happen? We are looking into a quitdeed with this person so that we are off of the land contract what all would be needed to make this quitdeed legal with the bank so that we never have to worry about the land contract any more as it seems a land contract is almost useless to the holder of it, if you can’t use it for your own safety and knowing that the other party can’t do anything with your property without your approval, then what the real point of wasting anyone’s time with a land contract… can anyone be put on a quitdeed? And what are the steps we need to take.
Hi Derek.
Eviction is not the right word under a land contract – Smoke is being blown
I assume you bought the house under a land contract. If you are rent to own, that is something else. Assuming you hold a land contract, your label here is as a Vendee/ Buyer. You cannot be “evicted” if you are making your payments on time and otherwise complying with the land contract (i.e. not ruining the place (called waste), keeping the place insured and real-estate taxes paid.) Here in Wisconsin, a vendor (seller) has to foreclose on you as the vendee (Buyer) based on a breach of the land contract. That is not an easy, fast nor is it a cheap process. Here the threats you are receiving would be unfounded if the facts are as I stated.
Warranty Deed after payments are made/ A closing with Title Insurance
The type of deed from the seller to you should be a warranty deed (called a deed in satisfaction of land contract – that fact usually noted on the deed itself) and should include provision of title insurance (with you as the insured) indicating that you are obtaining clear title. Only the Vendor can supply those items to you. We normally set up a “closing” here locally with a title insurance company. If you have them assist, the title company can act as a clearing house where your final payment is made at the closing in return for the deed in satisfaction of land contract and a title policy indicating that you have clear title going forward.
*** As a side note … Vendors and Vendees can sometimes transfer their rights under a land contract to another party in a couple of ways. One is to execute a quit claim deed transferring the person’s interest in the contract to someone else. IE : Your Vendor’s quit claim to another person makes the new person your Vendor. That is not the preferred way to go ab0ut that. In any event, a quit claim from your Seller/ Vendor to someone else would not change the rights you have under the land contract. It would likely require you to send your payments to the new Vendor once provided proof of the transfer to new Vendor.
Hope this helps Derek.
All my best.
Walter
Hello,
I currently have a 10 year land contract. I am on year 8 of the 10 years with 7 payments left to go. We pay quarterly 4 times a year. I bought this from an older lady that we are very good friends with. Sadly, she has come down with covid and is now in the hospital, 12+ days and not improving. Her son had called me to ask about the Dec payment and wanted to know how this works as I set this up with his mom and he was not involved. I told him I usually always paid a month early and sent him a picture of the check his mom cashed in November. But I explained the land contract and how it was drawn up. He also told me he has copies as well and the payment schedule. Everything appears to be in my name, taxes, Register of Deeds states the document number linked to the land contract, etc. My question is, who has the Deed? How do I get a copy of the Deed once final payment is made? He did not seem to be aware of the deed to the property or have it. There reasons for me paying this off early if something were to happen and she passes away. Money seems to already be in play in the family. I just like to make sure my investment is protected and who to contact once final payment is made. I like peace of mind that they suddenly cannot change anything in the contract either. By chance, I did ask this question to the lawyer who drew it up. And he stated that the estate would have to honor the land contract. I do remember that. Best Regards, Dave
Hi Dave.
The old deed, your land contract and a future deed
The deed that was in place for the property prior to the land contract (in the name of the vendor/ the older lady) is still present on the record of the register of deeds. Best way to explain the land contract process is to say that your land contract is also on file with the register of deeds along side the vendor’s deed and your land contract gives you the rights (ownership and use) and responsibilities (taxes, insurance, upkeep, etc.) in the property. The experts call this equitable ownership of the property. Once you make the payment in full under the land contract, the vendor will execute (sign) a deed over to you. That deed is thought of as a deed in satisfaction of the land contract. That deed in satisfaction of land contract from the vendor to you will once again merge the equitable ownership with the legal ownership of the real estate. IE: you’ll have both. This all sounds like mumbo jumbo… I get it. I like to tell folks that really you do own the real estate now as the land contract vendee (buyer). Your “older lady” as the land contract vendor here is your lender. The land contract feels more like a mortgage from her point of view. For example, if you fail to pay, her main remedy under law is to foreclose on you to take the property back. Similar to a bank.
Title Insurance
I suggest that you check to see if title insurance was ever provided to you under the process. Unless otherwise agreed, the seller should be providing proof of clear title. If you have not received a title commitment and policy yet, plan on adding that to the plan. We normally set up a “closing” here locally with a title insurance company. If you have them assist, the title company can act as a clearing house where your final payment is made at the closing in return for the deed in satisfaction of land contract and a title policy indicating that you have clear title going forward.
Contract survives death
Assuming you are using the standard Wisconsin land contact form here (or something similar in another state) your contract carries on to the heirs and assigns of the vendor. Same if you die, your rights and obligations under the land contract pass to your heir and assigns as well. So yes … the estate would have to honor the land contract.
Power of Attorney / Personal Representative
If the Vendor’s son holds a properly drafted durable financial power of attorney, he can attend the closing on his mother’s behalf and execute the documents for her. Otherwise I think you may have to wait until she recovers or passes away to complete the transaction, my friend. If you have to wait to pay the land contract off until after the Vendor passes, you will likely need to wait for an executer / personal representative to be appointed. That can take awhile, but once one is eventually appointed, you should be fine.
Hopefully this information is helpful.
Take care.
Walter
Hi what a great page of information on land contracts! I found a property that I’d like to execute a land contract on as the vendee. I do have a template for seller financing and know what the terms will be. Does this contract need to be notarized? If it does not need to be notarized all I will do is file it with the register of deeds after it has been signed, correct? Also I will be executing the land contract under my LLC and earlier in the comments you said with LLCs it is different, do you know where I can go to learn more about this? The home I’m looking to purchase with a land contract will be used as a rental.
Thank you so much!
Hi Isabelle.
Thank you for your questions.
The contract you will want to use (and any rules associated) depends on the jurisdiction you are in. In Wisconsin, the land contract has to be either notarized or authenticated by an attorney.
Yes, the contract needs to be filed with the register of deeds to be enforceable against third party buyers and lien holders. Speaking of that …. is there an underlying loan/ mortgage on the property in the name of the vendor? Do a title search before you ink the land contract to see if that is the case. if so, communicate with the vendor and the vendor’s lender. If you google “due on sales” clause … you will quickly see the potential issue.
Are you ordering title work now? As a buyer, you do not want to make your payments to the vendor unless you know there is a clear title now. I always suggest using an offer to purchase and have a closing with a title company (signing land contract at the closing) to assure my buyer has clear title before the land contract gets rolling. You certainly do not want to find this out after you make your final payment under the land contract in ten years. Yikes.
If your LLC is buying, make sure the LLC is the party to the agreement vs. you personally. Again, How to do that under your contract depends on your jurisdiction.
The land contract concept looks deceptively easy on its face …. However, there are plenty of snares out there that can catch you if the land contract is drafted wrong, not signed correctly nor filed properly. Plus adding in the fact that your LLC is the vendee in your case make a mistake that much more likely. I do not see this as a do it yourself project. I would seek out a real estate attorney in your area and have the attorney assist you with the process. You will have to pay the attorney, but it will help you in the long run.
Watch out my friend. A crocodile might be lurking under that still water you are wading into.
Best of luck.
Walter
If I buy property today and sell on land contract to a child (yes, I know you don’t recommend but it’s the ONLY way our kids can afford a home in 2022’s market) does that invalidate the title insurance policy I have on the property?? It seems that while I would hold legal title to the property until it’s paid off, the title insurance would be valid until such time I recorded the deed at the time the terms of the land contract are satisfied?? My title policy states the proposed insured must notify the company in writing of any person who will obtain an interest in the land.”
Hi Angela.
That is a great question regarding title insurance. Your “act” of selling the property via land contract to your kids would be “another person obtaining an interest” and therefore if you fail to tell the title company, you violate the notice requirement on the policy. That violation could make the coverage you obtained when you bought the house void. You should notify the title company prior to the transfer under the land contract. Also, if you have a bank loan on the property, let the bank know too. If you do not let the bank know, it can invoke the due on sale clause and accelerate your loan on you.
I strongly suggest that you go a step further than what you are thinking. I almost always recommend that the seller (vendor) and buyer (vendee) sign an offer to purchase that, under its terms, requires fresh title work (a new policy in the name of the vendee) and a closing through a title company. Getting an updated title policy naming the kids as the owners makes great sense for your kids. Verifying clean title is what any vendee would want to do prior to making payments on a place. Also makes sense for you as the vendor because you can sell the place without the risk of liability for any defects in the title. The title company is the place to help you with processing the deal and closing it. Some of the handy things the title company does for you include: doing a closing statement showing prorations and otherwise breaking out the numbers for the deal on paper. It can make sure that the vendee’s down payment (if any) is made and that the final executed land contract is properly recorded with the register of deeds.
Yes, you are right .. I have seen family transactions sour on a regular basis. Family members struggle to respect the formalities of the deal and often neglect their obligations under a land contract … relying, instead, on the fact that the other family member will not actually enforce it. I hope your deal proves me wrong.
All my best.
Walter
Thanks for your advice! Very helpful (and also expensive, title policies are not cheap nor the associated title company costs.)
Agreed Angela. Land contracts should not be entered into without a great deal of consideration. They are not for everyone, that is for sure.
We entered into a land contract. We are the vendors. The buyers have been making monthly payments on time. Problem comes is under the contract they are to be making monthly additional down payment. Two and half years no further down payment has been made. We’ve went thru the contract on found other numerous violations. Not enough insurance. Place is trashed. He not has one, but two judgments since we signed contract. Contract states they were to put new roof on. Not done and now we’re afraid of leaking. Nothing is to be removed until final payment. Missing items. They were to have contract recorded. It’s not recorded. Everything is in our name. We have sent them a 60 day remedy of Default. Deadlines were given and have not cured. According to contract we the vendors can void the contract. Are we wrong? There is a small loan at bank. We kept insurance ourselves on the house and taxes are escrowed. We want them out.
Hi Patti. I do not know what your land contract terms say, but based on your comments, it does appear that you have a breach of the land Contract that gives rise to a cause of action in court. Your jurisdiction controls what you can or cannot do based on the breach. Please seek help from a qualified real estate attorney in your area on this one. Jurisdictions vary regarding options for taking real estate back under a land contract.
In Wisconsin, the fact that the land contract is not filed is of little significance when it comes to enforcing your rights against the Vendee. Keep in mind that your name on the deed is only part of the story. When you agree to and sign a land contract… you are transferring “equitable ownership” to the vendee. The vendee owns your place. I think you will have to go into court to take the ownership back. In the past, when we have seen facts like yours, we went ahead and filed the land contract for our vendor and then proceeded to foreclose on the vendee through the courts. I think that approach is prudent because (like I said) the land contract sent ownership to the vendee even if the filing did not take place. The vendee could very well be in economic trouble including suits by others resulting in judgements that will become liens against the real estate. The foreclosure process helps you scrape liens off your property in a way that gives you back your ownership without the liens.
I know I discourage land contracts on here. They are great in some circumstances, but not in others. One thing is always true… when you sell or buy under a land contract, you are hitching your wagon to the other party. That can sometimes result in one hell of a ride.
Best of luck to you my friend.
Walter
May 2020 we entered into a land contract. We are the sellers. The buyers have been making monthly payments on time. However, have not followed thru on all of the other portions of the contract. House is trashed! They were to put a new roof on. Not done and now we’re worried about it leaking. Have not complied with making down payment. Not enough insurance on the house. He received 2 judgments since signing. The contract was never recorded. Oct of this year we asked for the contract for our atty to look at. She’s the one who noticed the violations. We sent them a 60 day notice to cure default. So far they haven’t complied. Our contract states that we can null and void the contract. The atty I spoke with felt we needed to foreclose. I question this because everything is still in our name. Can we ourselves void this contract and do we need them to sign. Does it need to be notarized? He’s becoming rather difficult. One atty said get them out! Oh we want them out
Hi Patti.
I do appreciate your frustration regarding the need to foreclose. That is an expensive and time consuming process, for sure. However it is the best approach for you.
The confusion you have regarding your rights under your land contract is very common. It stems from the nature of the Land Contract itself. It is an unusual bird, for sure. When you sign the Land contract as a vendor, you retain your “legal ownership” on the deed. However, you are giving up an “equitable ownership” to the vendee. The equitable ownership is the controlling ownership and the vendee is required comply with the the terms of the Land Contract to keep it that way. When the Land Contract is paid in full and all other terms are met, you would then deed the legal ownership over to the vendee at that time. The experts call that a merger of the ownerships.
In your case, there appears to be a breach of the agreement by the Vendee. So then we must ask ourselves how do you, as vendor, get the equitable ownership back from the vendee? Wisconsin statue calls for a foreclosure in that instance. I think it is mostly to make sure the rights of both parties are full considered before a person has their home taken from them. Not faulting you here… that is just a societal decision we have all made to give vendees due process in court before losing their homes. I like the foreclosure for you because, as I mentioned in my other response to you, the process works to clear up any liens that might attach during the vendee’s equitable ownership.
Not to ignore the point about legal ownership and equitable ownership mentioned above, but I think the easiest way to think of land contract is to make the Vendor a “lender” in your mind. Make the vendee the “borrower” in your mind. The minute you signed a land contract as a vendor, you lent money to the vendee on the vendee’s house. In most cases, if you want to take it back from a Vendee in Wisconsin, you need to go through a foreclosure process to get it back … similar to what a bank would have to do on a mortgage loan.
Hang in there. Bite the bullet and take your attorney’s advice.
Oh and… next time … I would avoid using a land contract for a sale. Instead, have the next Buyer use conventional financing to pay you a lump sum at closing.
All my best.
Walter
Thank you Walter. I was hoping we didn’t have to do a foreclosure if I can get them sign off. We’d still have title search done. However I do see the foreclosure being beneficial so we don’t end up paying off their things. They were supposed to replace the roof. Hasn’t been done. Now we’re afraid of leaks. I know they have ownership so do we still have a right to be on property with a 24 hour notice? I know it’s different and they’re not considered tenants. Also if contract isn’t recorded, how would a 3rd party know?
Thank you
Hi Patti.
I think, because you are a vendor, you can inspect the property under the land contract/ Lender theory. Mortgages have the inspection aspect spelled out right in the terms of the Mortgage agreement. Land contracts can state that inspections are allowed, however most are silent on it. Even if your Land Contract is silent on it, you should give them notice and see how the vendee responds. They will likely let you in. Take pictures if you get inside so that you can show they are committing waste (neglecting) the property.
Keep in mind, whenever you go to regain your ownership (via foreclosure or deed in lieu of foreclosure), you will need to file something that is of a public nature. That is when the public learns of the land contract and the vendee’s ownership in a case where the land contract was not filed at the inception. Keep in mind too, your vendee’s choice to not file the Land Contract is a clue. Folks often do not file to try to avoid detection by their creditors. It might be wise to check on WCCAP (Wisconsin’s court search) … or other similar searches in other states.. to see if the vendee has docketed judgments against him or her. I would bet dollars to donuts that you will find something out there.
Good luck to you.
Walter
Hello Atty Shannon,
Thank you for taking the time to read my comment. This is regarding a land contract that was written
on a standard Wisconsin Form 11. Contract reached maturity on July 29, 2021 with a balloon. Because
refinancing was not an option for Vendee, Vendor has been allowing payments to continue based on
terms laid out on the contract. Contract was set at 5%, with a 10 day grace period and a 12% default
rate.
Here is my question:
If payments are made later than 10 days, how is the 12% default rate calculated and applied? As you
are well aware, Form 11 states, “Following any default in payment, interest shall accrue at the rate of 12
% per annum on the entire amount in default (which shall include, without limitation, delinquent interest
and, upon acceleration or maturity, the entire principal balance).” Can the remaining principal balance
be included in that calculation as we are past the contract maturity date? How is the principal and
interest split affected, if at all?
Example:
Payment due: 10/29/22
Principal balance: $46,588.71
5% interest rate
Total P&I: $389.37
P&I Split per Amort. table: $194.12 (I) $195.25 (P)
Payment ACTUALLY made 11/25/22
Any guidance you might have for this situation would be greatly appreciated.
Thank you!
Christina
Hi Christina.
So sorry to take so long to respond. I seem to have missed your question when reviewing the site.
Here are my 2 cents on this…
Let’s look at the agreement itself ….
When a default happens…
Vendor may singly, alternatively or in combination:
(i) terminate this Contract and either recover the Property through strict foreclosure or have the Property sold by foreclosure sale; in either event, with a period of redemption, in the court’s discretion, to be conditioned on full payment of the entire outstanding balance, with interest thereon from the date of default and other amounts due hereunder (failing which all amounts previously paid by Purchaser shall be forfeited as liquidated damages for failure to fulfill this Contract and as rental for the Property);
(ii) sue for specific performance of this Contract;
(iii) sue for the unpaid purchase price or any portion thereof;
(iv) declare this Contract at an end and remove this Contract as a cloud on title in a quiet-title action if the equitable interest of Purchaser is insignificant;
(v) have Purchaser ejected from possession of the Property and have a receiver appointed to collect any rents, issues or profits; or
(vi) pursue any other remedy available in law or equity.
An election of any of the foregoing remedies shall only be binding on Vendor if and when pursued in litigation.
Then specific to your question …
Can the remaining principal balance be included in that calculation as we are past the contract maturity date?
Following any default in payment, interest shall accrue at the rate of 12% per annum on the entire amount in default (which shall include, without limitation, delinquent interest and, upon acceleration or maturity, the entire principal balance).
Being beyond the maturity date can create a default on the entire balance due. However, your actions of accepting monthly payments after the maturity date probably changes that in the eyes of a court. You have not chosen to take any of the remedies mentioned above in options i-vi. While it is hard to tell for sure how a court may rule, your actions of continuing to allow payments is usually viewed by the court as a waiver of the default to pay the balance at maturity and an “extended land contract” and with the parties operating under the same terms as the matured contract. Knowing this is how things are looked at, I would apply the 12% rate only to the late payment amount and only for the period between the due date and the actual payment.
How is the principal and interest split affected, if at all?
I would retain the current split and simply calculate the excess interest accrued (7%) and send a separate bill for it. I would warn the vendee that you will continue to charge this way if they are late again and/ or fail to pay this bill you may enforce the rights mentioned above in i -Vi.
Note: This is informational only my friend and represents how I would handle the situation. I strongly encourage you to seek legal advice from your own attorney for matters such as this.
Best of luck to you.
Walter
PS: Another reminder to avoid selling land under land contracts if you can. You are not a Bank … so do not lend money to strangers. If you do lend this way, get a large sum down, ask for a decent interest rate, and buckle up for the ride.
Hi, In WI is there a limit on how long you can have a land contract? Or is that up to the seller to do determine?
Thank you,
April
Hi April.
I love your question.
I am not aware of an express limit on the land contract term/ amortization (payment years) under Federal or Wisconsin law. So…yes … it is up to the parties to decide that aspect of the agreement … but, sorry to say, only to a certain degree.
Keep in mind a land contract is really just seller financing. Your payment terms (at least to some degree) should reflect what banks and credit unions are doing. I think the problem with going too long on your land contract term comes down to what a Judge might think if the enforceability of the agreement was called into question. A rule of thumb for a court when considering if a land contract is enforceable is whether or not the terms in it are reasonable. When the terms of the land contract are not reflecting the norm, it’s reasonableness can be brought into question. In short, the contract looses its “strength” in court if the terms are too extreme. Because of this, I like to counsel clients to keep the contract terms in line with the industry norms. For instance, in Europe and Japan, the 100 year mortgage can be found (very rare though). Not so, here in the States. Here 30 years on a mortgage is about it. I would not exceed 30 years on it.
Another reason to be careful with the length of a land contract is that vendor rights might someday be inherited. I am aware of a trust administration (after death of the trustee) under which the trust held four good sized land contracts. The trustee/ beneficiaries needed cash to administer the estate properly. The estate held inherited long term payment streams under land contracts. The trustee was in a position to negotiate an early payoff by the vendees. Unfortunately, the vendees held all of the cards in that negotiation. The vendees asked for and received a substantial discount to end the land contracts early. I would hate to see you inadvertently put your heirs in that spot. Again, I would not exceed 30 years on it. Perhaps even go shorter.
Best of luck and Happy New Years.
Sincerely,
Walter
Hi,
I’ve read through every question and not sure I saw what I’m about to ask specifically. I am considering entering into a land contract as a Vendee in WI. I understand in doing so I receive “equitable ownership”. But, I don’t completely understand what that allows me to do.
Assuming I have maintained the property and the contract is in good standing; am I:
1. Able to sell the property at some point, just as I could if I had a conventional mortgage without permission from the Vendor?
2. Am I able to make changes/upgrades/additions or add a separate mother-in-law building onto the property/house without informing or getting permission from the Vendor?
Thanks for your time and effort on the answer.
Carlos
Hi Carlos.
No worries my friend. As a vendee, you own the property.
You can normally sell the property at some point, just as you could if I had a conventional mortgage. The land contract would be paid off when the sale is closed with the new buyer. You do not need the Vendor’s permission to make the sale unless you have a clause that does not allow you to pay the land contract off in advance. there are some out there like that. However, most allow prepayment. Also the land contract vendor will typically be involved because he/she will provide the payoff number to the title company prior to the closing.
You can make changes/upgrades/additions to the property without consulting the Vendor unless the contract says otherwise under its terms.
I hope you enjoy your new home.
All my best.
Walter
My Mother owns outright a recreational property in northern Wisconsin that she has set up with a transferable upon death deed. I am the sole beneficiary on this document. She has recently moved to an assisted living facility. Currently she has enough funds for the next 5 years and after that point she will be needing the money from the recreational property for her care. At 85 she is in fair health.
If I were to purchase the property from her with a land contract would the TOD deed remain in force?
Looking back she regrets not transferring the property to me sooner. If not a land contract is there a better way to keep this property in the family?
Thanks
Hi Dave.
Your question requires the expertise of an elder law attorney. Seek one out my friend. Money well spent. Good luck to you. Walter
Hello. My husband and I are purchasing our home on a land contract. Our final payment will be this August 1st. Through medical conditions we have fallen on hard times. I am now disabled and my husband has been out of work since last September. He will be receiving his first pension payment June 1st. Needless to say we fell behind with payments due to zero income coming in. The vendee wants us out and has retained a lawyer. His lawyer informed us of a program through the government that will help with paying him off. We applied for this grant and were approved but he is refusing to accept this offer now. When we purchased this home in was not fit to live in. We completely gutted the home and started with new. New electrical, water pipes ect.. home had no heating or venting. Installed a furnace and ducting. All new windows. Needless to say we added at least $50,000 To the property. He obviously is seeing he would make a huge profit if he got us out. If this does happen, are we just out of all this money? Shouldn’t he have to pay us for improvements? Thing is he has been offered payment and has refused to coroporate with us. We are currently also waiting on my husband’s annuity which we could pay off completely but he’ll just refuse this also so what can we do. I would love to have a lawyer Representative but at this time the money isn’t here yet.
Thank you
Any advice would be greatly appreciated
Tammy
Hi Tammy.
First off, I am so sorry to hear about your situation. You are in a tough spot my friend.
You are in default. So the Vendor has every right to pursue taking the property back. If the Vendor is successful, the Vendor keeps the property as improved!
Are you in Wisconsin? I ask because in Wisconsin, the Vendor would have to file in “strict foreclosure” action with a court in order to remove you from the premises. That process is built to allow you a period to “redeem”. Similar to a traditional foreclosure of a bank mortgage, the Vendor starts by filing a strict foreclosure lawsuit against the Vendee (you as buyer would be the Vendee). Unless the Vendee files an answer and disputes the assertions in the complaint, the court typically will grant a default judgment and give the Vendee a period of time to pay off the remaining amount due under the land contract, called the “redemption period.” In Wisconsin, the redemption period must be at least seven business days. Not very long.
If you and / or your attorney file an answer to the complaint, that action can buy you more time before a judgment is entered allowing more time to get the disability payment in so that funds are there for the redemption period. Sometimes collection defense counsel (aka your attorney) can ask the court for a longer redemption period too. Maybe 30-90 days depending on the reason … Example: Waiting for a disability payment to arrive.
This redemption opportunity is huge. It could work to save your house and the money you have in it. It is absolutely critical that you obtain legal representation. Perhaps a friend or relative could lend you the funds to get an attorney in place.
Get legal representation now by any means necessary. This is the time to ask for help from friends and family!
Best of luck to you.
Sincerely,
Walter
Is an unsatisfied Land Contract considered satisfied after so many years have passed, similar to 30 years for a bank mortgage?
Hi Tom.
Thank you for your question. It is a good one. It reminds us all that Real estate law (especially surrounding Land Contracts) can be quirky.
I do not know of a court case on this. Maybe someone else can chime in on that. Still, I have always held the understanding that the Expiring Property Rights rule you mention in your question not only applies to easements, leases, mortgages, etc., but also applies to land contracts.
Here are a couple of thoughts on it.
I think what you are referring to in your question is Wisconsin statute 893.33 Action concerning real estate. It applies to purchasers. It defines them, at subsection 1, as: “In this section “purchaser” means a person to whom an estate, mortgage, lease or other interest in real estate is conveyed, assigned or leased for a valuable consideration.”
It also states in part, at subsection 2, that: “no action affecting the possession or title of any real estate may be commenced, and no defense or counterclaim may be asserted, by any person, the state, or a political subdivision or municipal corporation of the state … that is founded upon any unrecorded instrument executed more than 30 years prior to the date of commencement of the action, or upon any instrument recorded more than 30 years prior to the date of commencement of the action …”
Finally, it can only be enforced as follows: per subsection 7 of the statute: “Only the following may assert this section as a defense or in an action to establish title:
(a) A purchaser of real estate; or (b) A successor of a purchaser of real estate, if the time for commencement of an action or assertion of a defense or counterclaim under this section had expired at the time the rights of the purchaser in the real estate arose.”
Applying Wis. Stat. Section 893.33 to Land Contracts
As you can tell, this Wis. Stat. section 893.33, is intended to clean up titles on real estate by eliminating old interests as a matter of law. The statute generally provides that, if notice of a real estate interest does not appear on the record (recorded in the office of the register of deeds) within a certain period of time (time period depends on the type of interest), the interest filed long ago terminates. The statute is limited, in that it only acts to terminate property interests if, after the applicable time period has passed, there is a purchaser for a valuable consideration.
Land Contacts are not specifically listed in the statute 893.33. However, you will notice that it includes a catchall in section 1. It applies to “other interest in real estate”. Land contracts fit the bill. Another clear statutory requirement is that it can only be enforced by “a purchaser for a valuable consideration”… a purchaser under a land contract is exactly that. So because of this language in the statute, I think one would be hard pressed to argue against its applicability.
Assuming I am not out to lunch on this, then with land contracts, the term is 30 years. Note the time frame does vary depending on the type of interest we are dealing with. You are correct that mortgages are also under a 30 year timeline. As a Vendor under a land contract, you do not want to fall prey to the possibility that the 30 year rule would apply. To avoid it from a practical standpoint, limit land contracts to a period of 30 years or less. There is a way to preserve the interest even if it is scheduled to stretch beyond 30 years. To preserve real estate interests, a form of notice should be recorded in the office of the register of deeds for the appropriate county. Where the instrument was previously recorded, it can be effectively re-recorded by recording a document that includes adequate information to identify the instrument under 893.33(2). Best practice is to attach to the notice document a copy of the previously recorded instrument including the recording stamp. This will extend the period for the vendor in our case.
That is a lot said, my friend. The short answer is, most likely, yes.
It is always a good idea to seek advice you pay for. If you have a fact pattern in your case where this is a relevant issue, please seek an attorney to help you with your specific matter. Facts matter as much as the law does in these cases.
All my best.
Walter
The real question is:
Does the 40/60 year lifespan of an access easement begin at the time the Land Contract is recorded, or when the following deed is recorded?
Hi Tim.
In Wisconsin, the shelf life of an easement (statute of Limitations) begins when the easement language is placed in recordable form, properly executed by the parties, and recorded. It is a common misconception that easements are indefinite but Wis. Stat. § 893.33(6) limits the enforceability of easements for a period of 40 years after the document referencing the easement has been recorded. If the easement is incorporated into the land contract, then that begins the 40 year period.
I admit that I have tucked easements into deeds and land contracts. However, I normally handle easements (over the land transferred or over another’s land to reach the transferred parcel) on a separate document (plus having a sweet survey map done by a certified surveyor attached to it) filed simultaneously with the Land Contract or Deed. That way the easement document can be considered on its own merit and is easy to locate during a title search. Also the separate easement document can be drafted in a way to include many standard provisions laying out what the parties rights and responsibilities are in an easy to find, methodical way.
Anyhow …. The date the easement language is first recorded with the register of deeds is the day you would start the 40 year expiry under § 893.33(6). To “record” an instrument, the register of deeds must “[e]ndorse upon [it] … a certificate of the date and time when it was received” as well as “a number consecutive to the number assigned to the immediately previously recorded or filed instrument,” WIS. STAT. § 59.43(1)(e), (f). See: TJ AUTO LLC v. MR. TWIST HOLDINGS LLC, Wis: Court of Appeals, 2nd Dist. 2014. Property owners can “rerecord” the easement to reset the 40 years. They would need to re-record their easement rights within 40 years of the original grant of easement, or face the fact that the easement is no longer enforceable.
Hope this helps clarify your issue.
All my best.
Walter