Ok so I've been out in the wilderness for 4 days with no phone service, so I'm just now getting back for Round 8 here with the wholesale haters.
:) jk
First off, I fully respect Will's opinion on just about everything he posts. I don't necessarily agree with everything he posts and I have no issues sharing that adamantly when the time arises (as is obvious). But either way I always respect him when we're done. I can't honestly say that with other posters that I debate with.
My passionate defense of wholesaling was generally motivated by the wealth of negativity expressed in this thread but very deeply motivated at your statement,Will Barnard, about wholesalers being the cause of current market conditions and the reason banks list REO's for such high prices. I believe those particular comments were inflammatory, exaggerated, inaccurate, and mostly rooted in your frustration with idiot wholesalers and not in the reality of the impact they truly have. I consider you to be a respected and influential contributor here, one of the BIG BOYS, so to say, and I become exponentially more motivated to put on my boxing gloves when I see someone of your caliber making asinine statements like that.
Either way, I personally believe and have built my wholesaling business on the idea of having financing lined up for any deal that I can't resell before closing. I also have a lot of experience with rehab to retails and rental properties, which I believe a thorough knowledge of both of those are tremendous assets in my wholesaling business. I believe that in the long term, following through on ALL of your contracts is the best strategy for a viable wholesaling operation. I have yet to see a long term successful wholesaling business built on backing out of contracts. Out of the 400 properties I've bought over the last almost 9 years, I've had ANY type of contingency (other than clear title) written into MAYBE 10 of them. Contingencies are not a part of my normal business model.
And yet, even with this being my own model for wholesaling, I strongly advocate that a NEW wholesaler should have a contingency in their first handful of contracts. To maximize your odds of success and really more to minimize your odds of failure as a new wholesaler, I believe it is paramount to put a contingency in your first contacts. Let's say the first 3 or so. I also believe that to greatly diminish the chances of your failure in this business, you SHOULD back out of those first contracts if you can't get them sold. I do NOT believe this is a sustainable model for success in wholesaling, but I also believe that the percentages of actually achieving success with your first wholesaling deals is so low that it is paramount to protect yourself strongly in the beginning. Newbie wholesalers are just as uneducated and vulnerable as most homeowners, so the whole argument of one taking advantage of the other seems pretty weak to me. You have the blind leading the blind here, and playing the ethics card on that seems pretty weak to me, too.
I balance this argument with the idea of fairness to the homeowner. I believe having a clear understanding with the seller that there is a contingency period and to be respectful of not dragging them out. A 2 or 3 week contingency period is perfectly ethical in my opinion, and I have absolutely no issues with any wholesaler who puts that in their contracts. Having long dragged out contingency periods is, in my opinion, rude and unethical. I've seen wholesalers who put 60 or 90 day contingencies or even recurring, never ending contingencies. I disagree with this approach. I also think extra care needs to be applied when you are dealing with a time sensitive homeowner (pending foreclosure). Even a 2 week contingency in this situation can pose severe risks to the homeowner and I think the responsible choice would be to pass or to be ABUNDANTLY clear to the homeowner about your lack of ability to insure a quick closing or a closing at all.
I personally do not feel responsible to share with the homeowner my intention of wholesaling their property. In my own business model, I'm going to close on it either way, so it doesn't make a difference in my perspective.
In a contingent model I would be okay with being very clear to the homeowner that the contract is contingent for a certain time period and leaving it at that in most scenarios. I don't feel responsible to share the inner workings of my business model with a seller. I never have. I don't tell sellers, "Hey I intend on buying this house from you, fixing it up and making $20,000 on all the equity your father worked for 30 years ago." With full disclosure in mind I guess I should tell the seller to call my competition because they will pay more than I will. Or I guess really before we sign the contract, I should disclose the names and phone numbers of my top buyers so that the seller understands exactly how much money they are losing by selling to me.
Its called a free market economy, and as long as I am performing in the context of my agreement with the seller, I am okay with the "ethics" of it. I do feel that the agreement should be fair and understood fully by all parties.
As for the legality of substance over form, I've seen several instances of case law supportive of wholesaling not being unlicensed brokerage. Unlicensed brokerage is always the angle I have seen taken by plaintiffs, and the only one I have seen prevail was the Indiana case I referenced before. Which that particular case involved options, and was about a whole lot more than wholesaling. Either way I'm not an attorney and neither is the other poster in the this particular debated issue, so I would recommend discussing it with someone who is. I've personally never had an attorney tell me that wholesaling is illegal.