Who is Liable for the Property Taxes?

Investor buys a house subject-to. Who is liable for the delinquent property taxes, the investor (who is the owner of the house) or the borrower (the person who sold the house sub-to but is still the borrower)? The mortgage is PITI.

I’m thinking the owner of record is ultimately liable but I’m not sure.

Ultimately it would come down to what your Sub2 paperwork says. I’d imagine that you could state in your paperwork that you are not responsible for any outstanding taxes for example. My paperwork however says I will be responsible for all outstanding liens but I don’t start making monthly payments until I secure my buyer first. Also, if you take over a house Sub2 you are essentially taking over what the underlying liens are (i.e mortgages, 2nd mortgages, taxes). So if taxes are say deliquent, the city or town simply attaches a lien on it. That lien of course will then have to be paid off when a sale happens. They will then get the amount outstanding. Most of the time homeowners in Sub2 situations are pitched that deal by investors because of some financial problem in their lives. Homeowners won’t care or won’t have the ability to pay outstanding taxes. Therefore if the numbers make sense, my paperwork stipulates that I will be the one who pays ONLY when and if I find a buyer first.

Thanks Chunk that makes sense.

In this case however, the taxes became delinquent after she bought the house sub-2. The market turned south and her tenant/buyers skipped and trashed the place, plus the previous owner refused to cooperate to do a short sale, so she (the investor) just let it go. The mortgage delinquency will of course fall back on the seller because the loan remained in the seller’s name. But since the taxes aren’t being paid either the investor is concerned that the delinquent property taxes may come back to bite her at some point in the future.

I’d run this specific situation by a lawyer personally. But I’m gonna give my 0.02. I would say this situation comes down to what is in the paperwork. For example, my paperwork says that once I take over, I basically responsible after that. I can’t imagine homeowners (or if it goes to court judges) agreeing to an arrangement where the investor in this case can get out and leave the situation if it isn’t to their liking. Speaking of court, there is something else I’d like to mention just FYI. When I do my Sub2 signups, my lawyer won’t notarize things unless the sellers put (in their own handwritting) that they’ve been advised by me that they have a right to counsel before entering into an agreement to do Sub2 with me. The investor here better be careful because the original seller would have a very strong case for a lawsuit for a number of reasons (i.e not being advised of the right to counsel). I also question exactly what is meant by ‘it became deliquent after she bought’. Did the investor knowingly let the taxes become delinquent and pocket the cash anyway? Did the investor not do their homework and find out what was owing or outstanding? The more I think about this, the more it is clear to me that if this goes to court, the investor will have to pay big time. Judge might decide to make an example out of this investor. My advice would be for this investor to do the right thing, suck it up, find another TB and try hard to put this back together. Avoid court and further upsetting the seller (who is still financially on the hook) at all costs. It wouldn’t be worth it, trust me.

I am sorry for the investor in this case. One other note. I know it’s too late now since the event has already happened, but I think it’s important to point it out to other investors anyway. My advice for investors selling any house on a rent-to-own is to demand their tenant/buyers get their own contents insurance FIRST before moving into the property. Once they’ve got a contents insurance policy in place and their deposit, I take a photocopy of that policy and send it to my insurance broker. Reason? If there is any damage at all caused by the tenant/buyer or their guests ever, the investor’s insurer subrogates against the policy of the tenant/buyer and makes them pay. This way the fixups get done, but it doesn’t affect your premiums. Again I’m sorry about this situation the investor is going through and hope it never happens again, but in my opinion they have to honor the agreement with the original seller and put this puppy back together and not have it foreclose. Otherwise there will be a basis for legal trouble against the investor.

it will eventually come down to whomever is on the deed is on the hook. doesn’t matter if paperwork says anything, he/she who possesses the deed owns the house, therefore the owner is ultimately responsible. Had the investor used a loan servicing co, or at least serviced the loan (and underlying note) themselves she should have known that an issue was brewing.

Tony: when you do Sub2 deals, do you do a new deed in your deals as an investor? Even if you don’t get the new deed as the investor, in this situation that NSU brought to light that would definitely open the investor up to a lawsuit. So while the investor may try to get out of it, if the PAPERWORK says for example that they are responsible for payments once the investor starts making it, then that opens them up. I think NSU needs to explain exactly how the loan got behind in payments though. This is definitely a situation that a lawyer needs to be asked. Not a good idea to take a chance and have this situation go to court.

Here’s what happened. A friend sold her primary residence in 2006 and wanted to buy an investment property with the proceeds. I hooked her up with an investor buddy of mine who had a nice sub2 house for sale. Low interest rate, good payment, and about $30k in equity (at the time lol). They did a mortgage assignment. I’m not 100% sure but I believe it was a straight sub2 transfer (no seller financing instrument was created). So if that’s the case I don’t think the seller would have a good case if she sues…she would have had to sign a disclosure stating her loan is not being assumed in any way.

Everything was going fine for a while, then begins the series of unfortunate events…the market tanked, then a set of tenant-buyers completely trashed the place (they started & didn’t finish a remodeling project, ignoring the prohibition of such in the lease) and then they skipped. Now the house is worth probably half what’s owed on it.

She made the payments out of her own pocket for a while, all the time desperately trying to reach out to the previous owner to do a short sale. Eventually she ran out of money and just let it go. The seller had moved away and has completely ignored all our attempts at contacting her. Even skip traced her and found her…calls, emails, letters, everything, she just wouldn’t respond. So with that in mind I’m not too concerned that she’ll sue (although she could) and if she did I think my friend has a good case…but ultimately right now my friend is just scared the property taxes will fall on her.

Chunk that’s a good tip re: contents insurance…that would have likely saved this deal.

Hey NSU,
Not sure that the contents insurance would have saved the deal since that would’ve only covered the damage to the house, not the damage to the economy (market crash). This is definitely worth bringing to a lawyer. For the record, this has never happened to me, so I am not qualified to advise you. I am very curious though as to what a lawyer tells you about it though. My paperwork says that if I don’t find a buyer before I take over payments, then the house might still go to foreclosure, right. Never had a situation where I took over and something like this happened. But hyperthetically, if the paperwork where to say something like I described above, I have to believe it at least opens the possibility the seller could be jaded and take the issue to court and sue. Interesting. Since your friend isn’t on the deed per se (did they transfer the house into a land trust and not their own name?), then I assume it falls back to however is on the deed (i.e original seller). Whether or not the seller cares I don’t think is all that relevant. I think this is one of the big risks of doing Sub2s…the market could crash and you’re stuck with the terms. But this is an extreme case indeed. At the very least it opens the investor up to lawsuits. Here is what I’m thinking, if the paperwork had language like I described above, could an investor not be sued and possibly lose simply on the basis of breach (meaning took payments over for a while, got into some difficulty with tenant, market crashed, they stopped making paym’ts, taxes fell behind during the course of the investor taking over, seller decides to be a dink and sue)? Like why open ones self to the possibility? Anyone who thinks the investor in this case is off the hook only because they’re not on deed is a joke! Because if this goes into court, I judge will make sense of it on their own and they can definitely rule against the investor. The investor in my opinion has a right to be a bit scared BUT I also see that you guys have done everything to track down the owner too. Let me know how this one works out, I am very curious what the lawyer says. Very interesting discussion to bring up I think though.