Dion,
I get what you're saying, but a lot of it is based on assumptions and hypotheticals, i.e. if it's FHA or VA there could be mail fraud involved, or if you don't make the payments and do it more than twice in a 3 year period it's a felony, etc. Admittedly, I didn't go into grueling detail in my OP, but that was mostly because I wasn't looking for a long winded explanation. I realize the options are a written doc rehashing what we discussed, which is what the seller asked us for, or a note and mortgage for a wrap.
Also, when you said:
"Then we move to talking about giving the Seller a mortgage and note opposed to or as the said guarantee. After mentioning the delivery of a security interest, we presume the Seller somehow is in a lesser position. Well, if you give a mortgage, they are a Mortgagee with an interest. Hardly a position of lesser power/stance."
You misinterpreted what I was saying. I meant that if we use a written document rehashing what was discussed along with the seller deeding the property away, they're going to be in a weakened position. That's reality, no matter how many different ways you try to spin it or how many hypotheticals you throw into the scenario. Once a deed is transferred, the previous owner is no longer the owner and it's going to be an uphill battle to change that fact. Clearly, if its done as a wrap, the original owner has a more clear cut path to getting the property back if the payments aren't made via foreclosure, but again, that's adding "what ifs" into the OP.
I realize a document rehashing what was promised adds strength to the sellers position, but what is being missed here is that I don't care that the seller has recourse. I'm not going to default on what was promised and if I did, he can have the property back. I have absolutely no problem whatsoever with the seller being fully protected and I am the one who disclosed all of the potential pitfalls in structuring the deal this way in the first place. We are working together to find a way that the deal can be done in a fair and comfortable way for both parties.
Next...
". . .if the giving of [the] advice and performance of [the] services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law"
The above quote references giving legal advice, which I'm not doing and is not relevant to drafting contracts. We were discussing drafting documents. I realize drafting certain legal documents could be practicing law. We are using an attorney to close the transaction, so if there's a gray area in that I will just have him draft them. However, just for discussion sake, I think something is being missed here. It's common knowledge that private sellers, landlords, estate heirs and investors use "boiler plate" type of documents on a daily basis, nationwide, to conduct real estate transactions. For example, a quick scan of public records in any county will reveal many quitclaim deeds prepared by a family member, executed, recorded and returned to them. Or, a landlord uses his/her own lease or one which they got from the purchase of a guru course. Same with land trusts, contracts for deed, special warranty deeds etc. Then there's the legal assistants who sell do-it-yourself/Pro Se foreclosure defense documents, BK contracts etc. All of these people aren't practicing law on a daily basis, so there is something being missed here. It's been a while since I researched the subject, but I do remember that there is something that allows the use of those documents which aren't prepared from scratch each time.
Can anyone/comment expand on that?
In closing, Dion, I'm not trying to be a jerk either, or come across as argumentative. I appreciate what you shared and it's been an interesting discussion. I'm being "matter off fact" here, too, so it may not come off all "flowery" either.
