The Real Thing On The Due On Sale Clause

By Lisa Jane Foreman

The due on sale clause began showing up in the 1970s when interest levels shot up and residential consumers began assuming existing, lower loan rates instead of applying for brand new ones from banking institutions, which, obviously, would have currently employed the significantly larger rates. In 1982, practically all real-estate loans between consumers and banks or other institutional lenders included the clause, and the process carries on to date.

This particular clause states that the entire loan balance might be called due for payment upon change in any interest in the property to another individual or individuals. It’s usually stated in this manner or similarly: “If all or any part of the asset herein is transferred devoid of the lender’s prior written consent, the lender may require all sums secured hereby instantly due and payable.”

Banks have been using the due on sale clause to prevent consumers from basically assuming the existing loan, which is expected to have cheaper than market interest levels. With the clause, buyers also go through the requisite credit check that allows banks to law enforcement officials whoever was residing in the property; this way, they are able to better monitor the collateral for the loan.

It should be noted that the clause, also known as the acceleration clause, is a contractual right and not a rule. It is up to the lender’s discretion to require the entire balance to be paid. While inclusion of the clause isn’t required by law, its administration is, in fact, implemented by federal law. If a property with a mortgage along with the due on sale clause is moved without the mortgage being completely paid back, the bank has the choice to foreclose the house. On some occasions, banking institutions have been considered to be lenient in this regard as long as the buyer went on with the payments. On the other hand, without the “due on sale” provision, a new mortgage can secure an “assumable” loan.

There are situations where in the clause doesn’t apply, such as when the transfer happens in a property arrangement and the house basically goes to a spouse, or when it happens by the use of inheritance upon the death of the owner. In general, owners are wont to abide by the clause as, apart from foreclosure (which incidentally will reflect in the seller’s credit history); violation may lead to additional financial burden by means of prepayment charges, loss of investment and eviction, and so on.

For the time being, the danger of the bank bringing in the loan is very slim. Given that the present loan is inside the area of market interest levels, loan providers are most likely not planning to speed up the loan. Look out for an unexpected rise in rates, though, in which case, you can expect banking institutions to be tighter in implementing due on sale clauses again.

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