What is “Subject To”?
Subject To refers to a form of financing where the purchaser buys a home “Subject To” all encumbrances (including but not limited to existing mortgages, back taxes, liens, etc.). Most commonly when you purchase a home utilizing the “Subject To” method, you can expect that the existing mortgage will be what you are taking over. So you would be purchasing the home “subject to” the terms of the existing mortgage, leaving it in place.
This method is used largely in situations where the home seller is unable to sell their home using conventional means or they need to sell quickly. Because there is no need to obtain new financing, the process can be completed very quickly (in as little as 2-3 days). Obtaining a new mortgage is typically the most time consuming portion of the purchase process. You have to go through the entire approval process, qualifying for the mortgage, providing numerous documents, etc. With “subject to” financing none of this is necessary, in fact there is no need to utilize a new bank at all.
Let me outline how this would work in the real world. You must first find a seller that is motivated to sell their home. Keep in mind there are many reasons a seller becomes “motivated”, not all of them are financial. A seller that needs to upsize or downsize can become motivated. Military sellers are prime candidates to become motivated, as often times they are given short notice to relocate. Sellers facing a divorce often become motivated because they just want “out”. Individuals who have received a job offer in another city or state will often become motivated. You get the idea. Be creative and you will soon be able to spot a motivated seller a mile away.
After you have identified your motivated seller, you meet with them to explain what the benefits of working with you to sell their home is. You explain it in the most comprehensive format, which is calling it “Owner financing”. There is very little difference between “subject to” and owner financing”. I will explain this shortly. Everyone has some concept and understanding as to what “owner financing” is. This will help open the dialog and offer a level of explanation. Many times sellers are behind on their payments and you can explain by selling the home to you will improve their credit scores and avoid a foreclosure on their record by taking over their payments and paying on time. If they are not behind, then identify what it is that they are trying to accomplish, and explain how selling to you will help them accomplish this goal (fast sale, highest offer, no need to repair etc.).
After they agree, you need to sign a contract stating that you are buying the home for a purchase price of at least the payoff amount (most times this is an adequate offer). Remember you are offering them a quick sale. The contract must state that you are buying the home “subject to the existing financing”, and that all parties understand that the mortgage will remain in the sellers’ name.
This raises the next most common question I get asked, “If the mortgage is still in the sellers name, how am I the owner?”. I am glad you asked! Much like the title to your car, a deed shows ownership of a specific property. If you sell your car what do you do to transfer ownership? That’s right you sign over the title. Likewise, when a homeowner sells their home, they sign over the deed. The deed and the mortgage are two separate documents. The deed shows ownership, the mortgage indicates who owes the bank money. The bank wants something of value to ensure that they will get the money paid back that the borrower owes. That is why a bank puts a lien on the property (thus the term “subject to” the mortgage). Are you starting to get the idea here? Exciting huh? You can actually buy a home without getting a new loan, paying loan origination fees, or all of the other garbage fees necessary to close on a home with a new lender. So of course you are still subject to fulfill the obligations of the original loan agreement or the bank will have the right to foreclose on the property if payments are not made.
I told you earlier there were minor differences between “subject to” and “owner financing, so let’s go over them now. First and foremost a true “owner finance” would not have an existing mortgage. The seller would own the property free and clear. So really it comes down to who you send the payments to. If the seller owns the property free and clear, you are safe to make payments to the seller. If you are buying “subject to” the existing mortgage, you do not ever want to make payments to the seller. You want to send them directly to the bank so that you know that the payment has been made. Why? Because if for some reason you send the payment to the seller and they decide not to make the payment to the bank, then you risk having the bank foreclose on the home through no fault of your own (except not listening to me!). Secondly with “subject to” the payments, interest rate, and terms are already set. With a true “owner finance”, this would all be negotiable (I recommend you start with 0% financing).
Next, the closing attorney or escrow agent (title company in some areas), is responsible for carrying out the agreements in your contract. You want to work with a knowledgeable, investor friendly agent to perform these tasks. They will do a title search. This is imperative, as this will disclose any and all mortgages, liens, back taxes, etc. Remember you are taking this home “subject to” all of these things. The purchase agreement (contract) is written exactly like any other purchase agreement. You just need to add the important verbiage that directs the closing agent of your wished (see above).
This is an exceptional way to buy a home without obtaining new financing. You do not have to be “qualified” to utilize this method of financing, because the loan has already been issued. All you do is set up automatic payments to go directly to the bank. Everyone is happy. The seller sold their home, you the buyer purchased a home without new financing, and the bank although they are unaware continue to receive their payments and interest (after all that is what they are in business to do). So now that you know an alternate method of purchasing your own personal home or investment properties, there is no need to participate in the so called “credit crunch” Happy buying!