What Is The Alienation Clause In Real Estate? Definition, Examples

What Is The Alienation Clause In Real Estate? Definition, Examples

An alienation clause, also known as a due-on-sale clause, is a provision commonly found in mortgage contracts. It requires the borrower to repay the remaining balance of their mortgage loan immediately when the property title is sold or transferred. This clause is enforceable in most mortgage agreements and is used by lenders to protect their interests.

The alienation clause prevents the borrower from transferring the existing mortgage to the new buyer and requires the new owner to obtain a new mortgage. It’s important to understand the purpose and enforceability of the alienation clause before entering into any real estate transactions.

Key Takeaways:

• The alienation clause, also known as a due-on-sale clause, is a provision in mortgage contracts.
• It requires the borrower to repay the remaining balance of their mortgage loan immediately when the property title is sold or transferred.
• The alienation clause protects the lender’s interests and prevents the borrower from transferring the existing mortgage to the new buyer.
• The new owner must obtain a new mortgage with current terms.
• Understanding the alienation clause is essential before entering into real estate transactions.

How Does The Alienation Clause Work?

When a mortgaged property is sold or transferred, the alienation clause comes into effect. This clause requires the previous owner to repay the remaining mortgage balance immediately. The funds from the sale are then used to cover the outstanding principal and accrued interest. The purpose of the alienation clause is to protect the lender’s interests and ensure the repayment of the borrowed funds.

Not only does the alienation clause require the previous owner to repay the mortgage, but it also prevents them from transferring their existing mortgage to the new buyer. Instead, the new owner must obtain a new mortgage with current terms. This allows lenders to maintain control over the mortgage terms and prevents new buyers from assuming lower interest rates.

“The alienation clause effectively protects the lender’s investment and guarantees that they will be repaid, even if the property changes hands.”

The enforcement of the alienation clause is at the lender’s discretion. They have the power to enforce the clause and ensure the repayment of the borrowed funds. By doing so, lenders can safeguard their financial interests and mitigate the risk of buyers assuming lower interest rates.

Overall, the alienation clause is a vital component of mortgage contracts that serves to protect the lender’s interests. It requires the immediate repayment of the mortgage when the property is sold or transferred and prevents the transfer of the existing mortgage to new owners. Understanding how the alienation clause works is crucial for both borrowers and potential buyers in real estate transactions.

Highlights:

• The alienation clause requires immediate repayment of the mortgage when the property is sold or transferred.
• The proceeds from the sale are used to cover the outstanding principal and accrued interest.
• The clause prevents the transfer of the existing mortgage to new owners.
• The new owner must obtain a new mortgage with current terms.
• Lenders enforce the alienation clause to protect their interests and prevent new buyers from assuming lower interest rates.

Why Do Lenders Use the Alienation Clause?

The alienation clause is a crucial aspect of mortgage contracts that mortgage lenders utilize to protect their interests. When a borrower obtains a mortgage loan, the lender provides the funds in exchange for the property title, which serves as collateral for the loan. The alienation clause ensures that the lender can recover the borrowed funds even when the property is sold or transferred to a new owner. By including the alienation clause in mortgage agreements, lenders can mitigate the risk of default and ensure repayment.

One of the primary objectives of the alienation clause is to prevent new buyers from assuming the previous owner’s interest rate, which may be lower than the current mortgage rates. This provision helps lenders maintain their profitability and ensures that they can adapt to changing market conditions. Additionally, the alienation clause safeguards the lender’s investment by requiring the borrower to repay the remaining mortgage balance immediately upon the sale or transfer of the property title.

“The alienation clause allows lenders to protect their investments and maintain control over the mortgage terms.”

The enforceability of the alienation clause was significantly strengthened by the 1982 Garn-St. Germain Act, which established clear guidelines for its implementation. Prior to this act, some borrowers could transfer their properties without the lender’s consent and without triggering the alienation clause. However, this act made the alienation clause enforceable and gave lenders more control over the mortgage terms.

While the alienation clause is a powerful tool for lenders, not all lenders actively enforce it for properties that have not been sold yet. This lack of enforcement can lead some borrowers to transfer the property without seeking the lender’s permission. However, it’s important for borrowers to be aware of the potential consequences and consult with their lenders before engaging in any property transfers.

Why Do Lenders Use the Alienation Clause?

Lender’s Objective	Benefit
Protect investment	Ensures repayment of borrowed funds
Control mortgage terms	Prevents new buyers from assuming lower interest rates
Comply with regulations	Garn-St. Germain Act mandates enforceability of the alienation clause
Reduce default risk	Mitigates the risk of borrowers transferring properties without repayment

Example Of Alienation Clause In Real Estate

Here is an example of what an alienation clause might look like in a real estate contract:

“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 obligations under this agreement, including the balance of the loan, shall become immediately due and payable.”

This clause essentially means that if the property is sold or transferred in any way, the borrower is required to immediately repay the remaining balance of the loan. The clause is standard in most mortgage agreements today and is designed to prevent the new buyer from assuming the existing mortgage. Instead, the new buyer is required to secure their own financing.

However, there are exceptions to the enforcement of the alienation clause. For instance, it is unenforceable when the title is left to or inherited by a spouse, child, or relative already occupying or intending to occupy the property. It also cannot be enforced in the case of a joint tenancy, where a joint tenant (like a surviving spouse) takes over the mortgage. Additionally, the clause cannot be enforced when the property is transferred due to a divorce or separation.

Exceptions to the Alienation Clause

While alienation clauses are standard in most mortgage contracts, there are some exceptions that allow for flexibility in certain situations. These exceptions provide alternatives to the traditional enforcement of the alienation clause.

One exception is the concept of assumable mortgages. In this scenario, a new buyer can take over the existing mortgage without triggering the alienation clause. This allows for a seamless transfer of ownership while keeping the original loan intact.

If the property owner has obtained a second mortgage, such as a home equity loan, the primary lender cannot demand immediate repayment under the alienation clause. This exception provides some relief to borrowers who have tapped into their home’s equity.

The Garn-St. Germain Act of 1982 introduced another exception to the enforceability of the alienation clause. It allows the original borrower to transfer the property into a living trust without triggering the clause. This provision provides an estate planning tool for property owners while preserving the terms of the original mortgage.

Other exceptions include cases involving divorce or death. When a property transfers as part of a divorce settlement, the alienation clause is not enforceable. Similarly, if the title is inherited by a spouse, child, or relative already occupying the property, the clause does not come into effect. Joint tenancy situations also prevent the lender from taking advantage of the alienation clause if a surviving spouse takes over the mortgage.

It is important to be aware of these exceptions and consult with the lender before transferring the property. Each situation may require specific documentation or permission to ensure compliance with the terms of the mortgage agreement.