Summary of "The Hidden Danger of “Subject To” Real Estate…"

Summary: The Hidden Danger of “Subject To” Real Estate

This video features a detailed discussion with Eddie Speed, a seasoned expert with over 40 years in the note business and creative finance, particularly the “subject to” (sub2) real estate strategy. Hosted by Dave Meyer and Kathy Fey, the conversation explores the operational, legal, and risk management aspects of sub2 deals in real estate investing.

Key Concepts and Frameworks

Subject To (Sub2) Strategy - Investor takes title to a property subject to the existing mortgage without formally assuming the loan. - Original borrower remains legally liable for the mortgage; the investor makes payments on their behalf. - Differs from mortgage assumption where the original borrower is released.

Legal and Contractual Framework - Due on Sale Clause (DOSC): A contractual provision in mortgages that allows lenders to call the loan due if the property title transfers. - Sub2 transactions breach this clause but are not illegal; they are a breach of contract, not law. - Use of trusts (e.g., transferring property into the seller’s trust) can sometimes help navigate DOSC, but transferring into LLCs is riskier. - Legal ambiguity exists; specialized legal counsel is critical.

Risk Management Framework - Identification of risks: DOSC triggers, insurance complications, state foreclosure protection laws, fiduciary responsibilities. - Risk mitigation: Having financial “horsepower” to cure issues (e.g., paying off loans if called), clear and ethical disclosures to sellers, legal documentation. - State-level regulatory awareness: About 50% of states have foreclosure protection laws for delinquent borrowers, impacting sub2 deals.

Key Risks and Operational Challenges

Due on Sale Clause Triggering - Typically triggered by title transfer, insurance policy changes, or borrower/lender actions (e.g., borrower calling lender). - Insurance is a common “trip switch” because the lender requires proof of insurance naming the lender as insured; changes in insured party can trigger lender investigation. - Attempted “fixes” like dual insurance policies or paying seller’s insurance premiums are flawed and risky.

Seller Risks - Sellers remain liable for the mortgage and credit reporting even after deed transfer. - Sellers may be unaware of ongoing liability or risks if not properly educated and disclosed to. - Fiduciary responsibilities arise especially in states with borrower protection laws, requiring ethical treatment and fair deals.

Investor Profile for Sub2 - Best suited for sophisticated, experienced investors who understand legal and financial risks. - Must have contingency plans and capital reserves to resolve problems if loans are called. - Not recommended for beginners or those without legal and financial backup.

Market and Strategic Context

Why Sub2 Has Grown in Popularity - Rising interest rates make taking over existing low-rate mortgages attractive compared to refinancing or paying cash. - Sellers facing life changes (e.g., military transfers, divorce) may want to exit quickly without credit damage. - Sub2 offers a creative finance solution to move properties without full loan assumption or cash outlay.

Operational Best Practices - Full disclosure and education of sellers on risks and liabilities. - Use of trusts to transfer title carefully aligned with legal advice. - Consulting specialized real estate attorneys familiar with sub2 and foreclosure laws. - Avoid shortcuts and “fixes” that create insurance or legal conflicts.

Metrics and KPIs (Implied/Contextual)

No explicit financial metrics (revenue, margins, CAC, LTV) were discussed, but key performance indicators for investors include: - Ability to maintain mortgage payments (cash flow management). - Risk of loan being called (probability and impact). - Legal compliance and risk mitigation success. - Successful exit or portfolio growth via sub2 deals.

Actionable Recommendations

For Investors Considering Sub2 - Educate yourself thoroughly on DOSC and state foreclosure laws. - Work with specialized legal counsel before executing deals. - Have sufficient capital reserves to cure defaults or pay off loans if called. - Ethically disclose risks to sellers and ensure fair deals. - Use trusts appropriately for title transfers; avoid LLC transfers without legal advice. - Monitor insurance policies carefully and avoid dual insurance schemes.

For Sellers - Understand that transferring title subject to mortgage does not remove your liability. - Get full disclosure and understand credit and legal implications.

Presenters and Sources

Dave Meyer – Host
Kathy Fey – Co-host and real estate investor
Eddie Speed – Guest expert with 40+ years in note buying and creative finance specializing in subject to deals
Additional production credits: Kayin Bennett (producer), Exodus Media (editor), Calico Content (copywriting), Bigger Pockets (partner)

This discussion provides a nuanced, expert-level overview of the subject to real estate strategy, emphasizing the complexity, risks, and legal ambiguities involved. It serves as a cautionary but insightful guide for investors looking to leverage creative financing in a rising interest rate environment.