Alienation Clause – Everything You Need to Know

In this article, we’ll review alienation clauses (ACs) and how they pertain to business contracts. We will focus on what is an alienation clause in real estate and work through an example. Then, we’ll discuss how to make an AC work and contrast it to an acceleration clause. Finally, we’ll wrap up the discussion by answering a set of frequently asked questions.

What is an Alienation Clause?

An alienation clause can appear in various types of financial and insurance contracts. Generally, it describes what happens when a contract party sells or transfers an asset or collateral. You often use ACs in mortgage contracts, and we will focus on the alienation clause in real estate.

Alienation Clause in Real Estate

Mortgage lenders rely on alienation clauses for protection against borrowers selling or transferring their mortgaged property. The alienation clause definition is language ensuring that the borrower repays the loan when a sale or transfer occurs. You will find ACs in both commercial and residential mortgage contracts.

To be precise, ACs prevent the occurrence of assumable mortgages. That is, a buyer won’t be able to assume the mortgage from the seller. Theoretically, upon assumption the buyer could make the remaining mortgage payments on the same terms as previously scheduled. Although not common, sellers sometimes try to use assumable mortgages to keep from disclosing the sale. Also, the seller might like an assumable mortgage to simplify the property transfer.

The Alienation Clause Protects Lenders

However, assumption is off the table when the mortgage has an assignment clause. Under an AC, the mortgage lender must receive repayment immediately if the borrower sells collateral property or ownership rights. Nowadays, almost all mortgage contracts contain ACs to protect lenders from original borrower’s unpaid debt. This prevents the borrower from squirming out of its debt obligations just because it can’t pay. Additionally, the lender has no idea about the creditworthiness of the buyer, an unknown third party, whom the lender has not run credit or underwritten. Rightly, the lender should object to assuming credit risk for a borrower that the lender hasn’t put through scrutiny. After all, the buyer may have a vastly different credit profile than does the seller.

The History of the Alienation Clause

The AC was a reaction to the creative financing craze of the late 1970s and early 1980s. Indeed, a 1974 court case, Tucker v Lassen S&L, instigated the craze. Specifically, the court ruled that the lender could not call in a loan because of a land transfer. Understandably, real estate agents began arranging creative financing solutions. Typically, a buyer took equitable title to a property through a land contract and assumed the existing mortgage. In addition, the buyer made payments to the seller to acquire equity in the property. Interestingly, high interest rates propelled this kind of activity.

A 1978 court case reinforced the earlier decision. Grandly, it stated that a lender could not call in an assumed loan if the collateral wasn’t impaired. More than ever, assumable mortgages were the rage, as they avoided the 18% interest rates then prevailing. Typically, closing times were about seven days, with buyers putting down 7% to 10%. Naturally, this paid for closing costs and carryback financing (that is, second or third trust deeds). Obviously, real estate agents made money hand over fist.

The Lenders Strike Back

The creative financing craze began to dissipate following the passage of the 1982 Garn-St. German Act. In particular, the Act put the nation’s savings and loans under new regulators. Moreover, mortgage interest rates came down in the late 1980s, making mortgages more attractive. Indeed, FHA and conventional mortgages made a strong comeback at that time. Note that these loans had enforceable alienation clauses that didn’t conflict with previous court rulings. Today, property buyers must negotiate a new loan due to the prevalence of ACs.

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Example Alienation Clause

An alternative name for the alienation clause is the “due on sale clause” (DSC). The following example comes from the U.S. Securities and Exchange Commission:

“In the event the Property or any part thereof or any interest therein is sold, conveyed or alienated by the Trustor, whether voluntarily or involuntarily, except as prohibited by law, all obligation secured by this instrument, irrespective of the maturity dates expressed therein, at the option of the holder hereof and without demand or notice, shall immediately become due and payable.”

Note that “trustor” refers to the holder of the trust deed.

Alienation Clause in Leasing

A lease may include an AC. The clause prevents the lessee from transferring, subletting, or sharing occupation of the lease. The exact terms of the AC depend on the lease. For example, it could prohibit lease alienation, or could require lessor permission before alienating the lease.

How to Make Alienation Clauses Work

Understand that a lender has the right, but not obligation, to enforce an alienation clause. In other words, the lender can decide whether to take action on the clause. Importantly, sometimes the lender cannot enforce the AC. For instance, a surviving joint tenant can assume title when the other owner dies. This second-owner can take over the loan without having to repay it immediately. In fact, similar rules apply when title transfers to beneficiaries via a bequest. However, the beneficiary who takes possession must also live in the property.

Furthermore, the lender can’t enforce an AC if the owner has a second mortgage on the property. Specifically, the first lien holder cannot exercise the AC and force the borrower to pay up right away.

Clearly, a lender can only make an AC work if an inheritance or second mortgage isn’t involved.

Alienation Clauses vs Acceleration Clauses

An acceleration clause requires the borrower to repay the loan balance or face foreclosure. It differs from the AC in that the lender can invoke it when the borrower defaults on a payment. In other words, the acceleration clause can require the borrower to speed up repayment of the loan. Additionally, the lender can apply the acceleration clause if the lender misses tax payments or becomes insolvent.

FAQs

What is a due on sale clause?

The due on sale clause is a different name for the alienation clause. Specifically, the borrower must fully and immediately repay a loan if it sells or transfers the property. The lender has the option to waive the clause if it so wishes.

How is an alienation clause different from a due on sale clause?

There is no difference. Alienation clause and due on sale clause are two different names for the same clause. In fact, most mortgages routinely include an AC, and can enforce the clause in most cases.

What is an escalation clause in real estate?

The escalation clause is an optional part of a buyer’s purchase offer for a property. If present, the clause gives the buyer the right to beat any competing offers by a set dollar amount. An escalation clause protects an early bidder from higher bids on a property.

Should I include an alienation clause in my commercial mortgage?

If “you” are the lender, then the answer is yes. The AC will protect you from unnecessary creditor risk under an assumed mortgage. If “you” are the borrower, you would prefer to avoid the AC. Clearly, this would increase your flexibility to dispose of the property through mortgage assumption.

Conclusion

The alienation clause is a common part of most real estate mortgages. If you seek a CRE mortgage or other financing, Assets America® stands ready to finance loans with a bare minimum of $5 million and beyond. Contact us today for fast, professional service customized to your needs.

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