Seller fears due on sale clause

[Jon Klaus]

Potential buyer is looking at a commercial property with poor trailing performance, so it will not qualify for a new loan. It is mortgaged. The seller is willing to be creative, but not do anything that might trigger the due on sale provision.

The seller's attorney recommends a JV with the buyer where the seller holds 51% and the buyer holds 49% until a buyer refinance takes out the underlying loan and the seller. The buyer then gets full ownership and title. The problem I see with this is that the buyer has no control, but must make the investments to stabilize the property. Once stabilized, the seller might have motivation to renege.

Other options: Lease/option or master or sandwich lease? Don't these put the buyer in a weak position, too? Buyer makes all investments and then the seller has new found motivation (performing property) to stop the option exercise?

Other creative options that protect all?