If Y buys the house she/he would give/sell X a Lease and an Option. Hence the term &;quot;Lease/Option&;quot;. The Lease is just a standard Residential Tennancy Agreement (lease). It's purpose is to give X the right to occupy the premises. The Option gives X the right (but not the obligation) to purchase for a fixed price, within a fixed time period (term).
Y would only need a Higher Price (Blind) Option if she/he was carrying out a back to back Lease/Option (sometimes called a Sandwich Lease/Option). As you mentioned Y is buying the property, he's not carrying out a Sandwich, therefore a Higher Price (Blind) Option woudn't be needed.
In relation to your " Would this be a correct assumption????" I'd refer you to:
You do not need ACL coverage if you only plan to use Lease/Options only.
from my post above.
As neither an real estate option nor a lease is regarded as a credit product, an ACL should not be needed. However please do not rely on this as I'm not a qualified solicitor and I suggest you check with your relevant professional.
In relation to "researching options for investing", I'll assume your reference to "options" is a reference to using options for vendor finance. If it's more along the lines of using options to control a property, while you get a DA, then the following isn't really what you need.
Here's an overview of how the National Consumer Credit Protect Act regulates some vendor finance:
As one of Australia’s most experienced Vendor Finance lawyers wrote recently, “anyone serious about vendor finance cannot be a one trick pony – that is, do lease options only.“
The new National Consumer Credit Protection Act requires anybody or any company who “in the course of a business” provides consumer credit or consumer credit advice, to hold an Australian Credit Licence (ACL) or to be a Credit Representative (CR) of an ACL holder.
You do not need ACL coverage if you only plan to use Lease/Options only..
If you plan to use Instalment Contracts and/or vendor financed Mortgages in your vendor finance (VF) business, you need to be an ACL holder or a CR.
All Vendor Financiers who intend to become VF Joint Venturers, or who desire to advertise on websites or in the media need to obtain an ACL or be authorised as a CR.
In an effort to get ACL coverage for as many Vendor Financiers as possible, the Vendor Finance Institute has released the ACL Application – Assistance Pack (ACL Pack) and our authorised Credit Representative Program.
I only know of one vendor finance educator that ran a 3 day course in Perth last year. I'm not sure what's planned for 2011.
Using some form of vendor finance to help sell a property that hasn't sold, is a great idea. The challenge with offering to "carry back" 20% is that your buyer's lender is probably going to give a thumbs down to the idea. I ran into this same problem last week, when someone offered to carry back 20% of a property we were looking at.
Based on all the above we'd suggest you use something like our "negative2positive" process. It has the potential to allow you to sell your property at a premium price and allow you to get a deposit up front, positive monthly cash-flow and a fixed lump sum captial gain payment when the new vendor finance buyer refinances.
Sandra on the Testimonials page of our website is a negative2positive lover
We bought quite a number of properties this way prior to the GFC and the new NCCP Act 2009. Just like your transaction, this week a seller offered to carry back 20%.
Over the last month or so I'd heard that lenders had been "lightening up" so I thought I'd give it a try. I spoke with two of the most respected brokers from this forum and another forum, to see if it would "fly" and, in short, it still seems to be a non starter.
Don't get me wrong, we still buy with carry backs, we just have to do it another way. I won't put that "other way" up here but feel free to call.
Sounds interesting. Do you know if it includes both ACL authorisations, i.e. 1. "Engage in credit activities other than as a credit provider", and 2. "Engage in credit activities as a credit provider"?
Most Mortgage Brokers only need the first authorisation, so if the underlying ACL only has this authorisation, Mortgage Brokers will be fine. Provided, of course that the Licensee provides adequate monitoring and supervision of it's Credit Representatives.
However Vendor Finance businesses need both authorisations, if they are going to sell their own properties with a vendor finance based loan. If Vendor Financiers are considering becoming a Credit Representative I'd suggest they check their Licensee has both the authorisations.
It's quite possible the ACL licence holder mentioned by Kane has both authorisations. This is just a suggestion that everybody considering becoming a Credit Representative do their due diligence.
I'm guessing you're trying to refinance out of a Lease with an Option? If the experts here in the Finance sub-forum can't help and your option term is running out, you may consider asking the Vendor to give you an Instalment Contract.
As a matter of interest, if it is a Lease/Option, could you give us more details?
We use Tom Forster for our Vendor Finance business in QLD. His contact details are: Tom Forster Litigation Law Queensland PO Box 777 Main Beach Qld 4217 Phone: 0428 777 007 Fax: 5591 5571 Email: [email protected]
If you exercise your option on the property, i.e. you buy the property, then you will pay stamp duty. If you then sell to another buyer, the new buyer will pay stamp duty.
However, if you use the "Higher Price" or "Blind Option" as the original option which you control the property with (along with a corresponding lease) then, when you assign the option, the new purchaser won't be able to see your original option price. And double stamp duty isn't payable.
We often use the "Higher Price/Blind Option" in Qld.
Welcome to the forum. We all hope you enjoy your time here.
As Terry says, if you do a search, you'll find many posts regarding options. You'll find two main thread types for options. They are: 1. Using options to secure property, while you secure a DA and possibly do a development, or 2. Use options to buy (control) and sell property, as part of a Vendor Finance strategy.
We have built our Vendor Finance business using options, instalment contracts, vendor financed mortgages and joint ventures. Risk management has improved over the years. Mainly because we've become more competent and because there is more legislation attached to the business and this has helped weed out the cowboys.
All the States of Australian have different regulations regarding the Cooling Off period you are entitled too. Roughly, it's five business days from exchange of contracts. Hopefully you are still within the 5 days. My suggestion, if you are unsure about all this, is to ring a solicitor, first thing Monday morning and get him/her to send a letter to the Real Estate Agent, withdrawing from the sale (insist it's sent immediately)
If you are not still within the cooling off period, then still talk with your solicitor on Monday morning.
I'll just talk about the nature of the option you can use, not the challenges involved in getting a vendor to agree.
I've got to agree with Terry, i.e. simultaneous settlements are nail biting affairs. We've done them but, apart from the excitement we had to find a way around the double stamp duty issue.
As Terry says, assigning the option is one way. However the challenge with that is your buyer sees the price you optioned the property for, i.e. the strike price.
To overcome these common pitfalls of the "standard" call option, the "Blind Option" was developed. It makes the strike price completely invisible to the buyer throughout the whole transaction and, because it is a creative form of assignment, it solved the double stamp duty issue for us.
This is the process we call negative2positive. There are two sets of legal paperwork that you could use to achieve what you're looking for: 1. A Lease/Option or 2. An Instalment Contract
You will get a lot of the information you need from the tenancy agreement pack you buy at the Newsagents.
Then have a look at all the exact procedures you have to proceed through when you end up in the CTTT (Consumer, Trader & Tenancy Tribunal), due to problems with your tenant. Oh and by the way, enjoy all the maintence calls, e.g. "these a loose tile on the laundty floor"
In the end, I put the experience of doing it myself down as, one of life's learning curves
Selling a property with vendor finance means you are selling into a market that's very different from selling to traditional buyers, i.e. traditional buyers can usually get a home loan. For whatever reason, people who buy with vendor finance can't get a traditional loan and, on the whole, they're pretty annoyed at not being able to buy their own home, They know they'll pay a premium price for a VF property and they are more interested in the opportunity to get into their own home, than they are in the finer points of the property and any limitations in the finance.
We insist that all our buyers get independent legal advice and if the 5 year lock-out clause does not suit them, they will not go ahead. My experience says they will not worry about this at all.
Also, the government regards a sale via a VF Instalment Contract as a real sale because they pay the FHOG to eligible purchasers buying their first home this way.
This may be an alternative for you. Lets assume you have a $360,000, interest only, loan at 7.5%. This gives you a monthly payment of $2,250 per week.
I expect you could sell the property with vendor finance for $320,00, with a $10,000 deposit, at 9.5%, over 30 years. This would give you a monthly income of $2,606 per month.
This income must be poored, without exception, into the $360,000.
The vendor finance contract used to sell the property must have a 5 year, "lock out clause", i.e. a clause to lock out any refinance, within the first 5 years of the loan.
If you do the math, you'll be surprised at how close your $360,000 loan will come to $320,000 after doing this for five years.
I might be tempted to buy a property and on-sell it with vendor finance, so it generates, say, $500 per month positive cash flow and then, buy another property with resonable capital gain prospects but negatively geared to the tune of $500 per month
Obviously that's a idealised example but buying buying one and turning it into a cash cow to support our buy a hold is what we've been doing for a few years now.
One stategy that you could look at is real estate vendor finance. We've been operating in this niche since 2003 and it's worked for us. If you'd like to learn more about vendor finance in Australia, I suggest you do a search for Vendor Finance here and in the Somersoft forum. You'll get an immense amount of reading material in both these forums.
Lewis O'Brien is on Tony's list. Another Victorian licenced solicitor that's very familiar with Lease/Options is Mel Ciampa. at Home and Housed, on 02 9804 7111. Mel is based in Sydney but is also registered in Vic.