More due on sale clauses triggered for LLC's in this rising rate environment

More due on sale clauses triggered for LLC's in this rising rate environment

Investor · Campbell, CA · Member since 2016 · 78 posts · 33 votes

Thinking about putting several of my properties in an LLC, and wanted to gather peoples thoughts on a topic that seems to keep coming: What is the liklihood of triggering the DOS clause?

I already have an umbrealla liability policy but feel like more protection can't hurt. Here is my concern: Alot of these regional banks RE investors have loans with have lost alot of deposits, they're probably hungry to increase their balance sheets right now. Also, in a declining int rates environment, a bank doesn't have incentive to call DOS clauses as they're likely to trade that mortgage for another w/ a lower rate. However, right now rates are higher, and likely going even a little higher. So if a bank calls your loan due at 3%, they take that balance and lend it back out at 6% today, so I wonder if they are more likely to do it.

Here's my question: In the event a bank calls the DOS clause, and one agrees to transfer the title from the LLC back into their names. Would that nullify their request to call the loan due? this is assuming all payments are made on time.

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Russell BrazilBusiness Member
Moderator
Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
3y

Having a mortgage in your name, while the property is owned by an LLC makes the LLC completely pointless since it is easily piercable.

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  • Russell BrazilBusiness Member
    Moderator
    Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes
    3y

    Having a mortgage in your name, while the property is owned by an LLC makes the LLC completely pointless since it is easily piercable.

  • Investor · Campbell, CA · Member since 2016 · 78 posts · 33 votes
    3y

    @Russell Brazil understood, hence my question

  • V.G JasonPro Member
    Investor · Member since 2022 · 3k+ posts · 3k+ votes
    3y

    If they do a DOS, it takes months for it to materialize. They're betting rates aren't going to come down in that time. As of April 2023, we are unsure if rates have peaked.


    You need to see your re-fi timing, if someone threatens to DOS you threaten to re-fi. It'll cost you but that's the price you pay. I think if you're taking smaller(ish) bank loans, you run a higher but still minute risk. Umbrella policy isn't going to do anything if the insurance company is trash.

    There's really no way to prevent being sued, LLC or not. You just need to limit what can be sued and what is exposed. It needs to be proven there's any comingling, so a complete separation and documentation will help achieve that.

  • Chris SeveneyBusiness Member
    Moderator
    Investor · VA · Member since 2015 · 21k+ posts · 19k+ votes
    3y

    @Amir Navabpour

    Transferring back still allows them to call the loan. Typically this also invalidates any title insurance.

    You are taking on significantly more risk if you xfer it

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  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    3y

    also keep in mind banks would rather carry a 3% mortgage than do a foreclosure.. foreclosures are much worse for them than a 3% mortgage.

  • Encinitas, CA · Member since 2011 · 191 posts · 252 votes
    3y

    I would not underestimate banks' willingness to call low interest rate loans due on sale, transfer, or hypothecation going forward in a rising interest rate environment.

    Back in the late nineteen seventies it was a major issue, and sufficiently important to banks that they forced through passage of the Garn-St. Germain act which in pertinent part guarantees their right to enforce due on sale clauses with limited exceptions.

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