Wholesaling Real Estate in Oklahoma. Is it Legal?

So, you’re interested in wholesaling real estate in Oklahoma? There are a couple of things you should know about your contracts before you take the plunge.

Here is a brief primer on wholesaling real estate for those of you just learning about this for the first time. Wholesaling real estate is marketed as the way for people to get rich in real estate without having any money of their own to invest. Simplistically, here is how it works: The wholesaler finds a house with equity in its current condition, gets the property under contract, and then assigns/sells the contract to an investor. For example: a wholesaler gets a contract on a house for $50,000 and inserts assignment language in the contract, then markets the contract to investors for $60,000. If an investor buys the house from the wholesaler, he steps into the shoes of the wholesaler and takes over the contract. When the deal is done the seller will receive $50,000, the wholesaler will receive $10,000 and the investor will receive the house.

Can you wholesale real estate in Oklahoma without a real estate license?

Under the Oklahoma Real Estate License Code it unlawful to list, sell or offer to sell, buy or offer to buy any real estate, or negotiate or attempt to negotiate any such activity, for prospective purchasers, or advertise that you are engaged in such activities unless you are a licensed realtor.iDon’t be fooled, if you are wholesaling real estate in Oklahoma then you are offering to sell real estate to prospective purchasers. So what then? Does that mean you can’t wholesale real estate without a real estate license? There are exceptions that allow any person, business, or trust to acquire real estate for its own use and to sell any real estate it owns without having a real estate license.ii Essentially, if you “own” the real estate you can sell it without a real estate license.

Is a wholesaler an “owner” of the real estate once it has the house under contract?

There is no clear answer that provides certainty for wholesalers doing business in Oklahoma. The Oklahoma Real Estate Commission has sued wholesalers in the past for not having a real estate license, but the question of whether a wholesaler owns a house under contract has never been answered by the Supreme Court of Oklahoma. The only guidance comes from a 1994 Cleveland County District Court case and the unofficial “policy” of the Oklahoma Real Estate Commission.

In 1994, the Cleveland County District Court was asked to answer whether ownership of real estate occurred at the moment the contract was signed or at closing.iii Here is what was happening at that time in a nutshell. Essentially, a new home builder was trying to sell his newly constructed homes. When a purchaser had trouble selling his existing home, the new home builder would enter into a contract to purchase the existing home. The new home builder would then take the contract on the existing home and sell it to a third party. The Oklahoma Real Estate Commission filed a lawsuit to prevent the new home builder from marketing the existing homes for sale because it was doing so without a license.

Because no court in Oklahoma had dealt with this issue, the Cleveland County Court looked to the 10th Circuit court decision in First National Bank & Trust Co. of Chickasha v. U.S. In that case, the 10th Circuit was reviewing the question of whether a real estate purchaser was able to take a demolition loss on his tax return. The answer to the question came down to the moment the property was purchased. There were two competing ideas of when the real estate was purchased. The first date considered was the date the Contract for Sale of Real Estate was entered. The second date considered was the date the purchaser received the warranty deed and took possession of the real estate. The 10th Circuit stated, “The commonly accepted definition of “purchased” is a binding agreement to pay an agreed price. It may be a complete or an incomplete transaction in terms of tender, but it must be binding and enforceable.”iv Ultimately the 10th Circuit determined that the real estate was purchased on the date the contract was signed.

The idea that the purchase contract was binding was essential to the 10th Circuit ruling that the building was “purchased” on the date the contract was entered. This is because the moment a binding contract is entered into the parties can bring suit to enforce the contract to either obtain specific performance or monetary damages for any breach of the agreement.v The court also stated that to determine when the “purchase” occurs “the transaction must be viewed in its entirety.”vi The court noted that between the date the contract was entered and the date possession was given to the purchaser, the purchaser paid to have a part of the building torn down, with the consent of the owner. The court relied upon this fact to determine that the seller and purchaser had considered the building sold on the date the contract was entered.

Ultimately, the Cleveland County Court followed the reasoning of the 10th Circuit and held that the new home builder was the “owner” of the existing homes at the time the contract was entered.vii

It looks like the 1994 Cleveland County Court case was the only time a court in Oklahoma has answered the question of whether ownership occurs the moment a contract is signed. The fact that the decision came from the District Court of Cleveland County creates a business risk because its decisions are not binding. The Oklahoma Real Estate Commission does not have an official policy on this matter, but appears to have chosen to follow the reasoning of the 1994 Cleveland County decision: that binding contracts create sufficient ‘ownership’ in a wholesaler to allow them to sell the contract/house without a real estate license.

So what does this mean for wholesalers?

It means the idea of getting rich in real estate without having any money is not attainable without violating Oklahoma law. If you want to wholesale real estate in Oklahoma you need to use a binding contract when doing your deals. A binding contract means that you must have the intent and ability to purchase the property yourself in the event you cannot find an investor to purchase the contract from you. Don’t get a house under contract if you can’t close on the house yourself.

Never use an option contract when wholesaling real estate in Oklahoma. The Oklahoma Real Estate Commission is unofficially operating under the understanding that option contracts do not give the purchaser an ownership interest in real estate at the time the contract is entered. If you are using an option contract you are likely violating the Oklahoma Real Estate License Code and exposing yourself to the risks associated with that choice.

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i 59 OS § 858-301 states, “It shall be unlawful for any person to act as a real estate licensee, or to hold himself or herself out as such, unless the person shall have been licensed to do so under the Oklahoma Real Estate License Code.” 59 OS § 858-102 (11) states, “‘Licensee’ shall include any person who performs any act, acts or transactions set out in the definition of a broker and licensed under the Oklahoma Real Estate License Code.” 59 OS § 858-102 (2) states, “The term ‘real estate broker’ shall include any person, partnership, association or corporation, foreign or domestic, who for a fee, commission or other valuable consideration, or who with the intention or expectation of receiving or collecting a fee, commission or other valuable consideration, lists, sells or offers to sell, buys or offers to buy, exchanges, rents or leases any real estate, or who negotiates or attempts to negotiate any such activity, or solicits listings of places for rent or lease, or solicits for prospective tenants, purchasers or sellers, or who advertises or holds himself out as engaged in such activities.”

ii 59 OS § 858-301 states, “However, nothing in this section shall: 1. Prevent any person, partnership, trust, association or corporation, or the partners, officers or employees of any partnership, trustees or beneficiaries of any trust, association or corporation, from acquiring real estate for its own use, nor shall anything in this section prevent any person, partnership, trust, association or corporation, or the partners, officers or employees of any partnership, trustees or beneficiaries of any trust, association or corporation, as owner, lessor or lessee of real estate, from selling, renting, leasing, exchanging, or offering to sell, rent, lease or exchange, any real estate so owned or leased, or from performing any acts with respect to such real estate when such acts are performed in the regular course of, or as an incident to, the management, ownership or sales of such real estate and the investment therein.”

iii State of Oklahoma, ex rel Oklahoma Real Estate Commission vs Alan Cheshier, et al. CJ-94-359 BH (Cleveland County District Court, filed October 14, 1994).

iv First National Bank and Trust Company of Chickasha v United States, 462 F.2d 908 at 910 (10th Cir. 1972). (emphasis added)

v Id.

vi Id.

vii State of Oklahoma, ex rel Oklahoma Real Estate Commission vs Alan Cheshier, et al. CJ-94-359 BH (Cleveland County District Court, filed October 14, 1994).