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Subject To Finance

It is rare to find a seller whose property is not encumbered by some form of mortgage lien. The simplest way to do this is to make the contract subject to the existing mortgage.  The contract is written for the full purchase price, but the buyer's property rights under the contract are subject to the rights of the seller's mortgagee. The seller remains liable to make the payments on the loan and the property may be foreclosed if the seller defaults.

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The obvious problem with this arrangement, from the buyer's point of view, is how to make sure the seller does not default on the loan payments. If this should occur, the buyer may lose everything; the seller will not longer have title to convey after foreclosure and the buyer will be forced to file a lawsuit to try to recover his or her payments on the contract. The solution is to include in the contract a provision requiring the seller to make timely payments on this or her loan and allowing the buyer to make such payments directly to the lender if the seller fails to do so.

There is also the possibility that lender may learn about the arrangement and enforce alienation clause (dues on sale and payable mortgage in full in certain days).

One approach that is sometimes used, to ensure that the seller makes the payments on the existing mortgage, is to set up an escrow account or servicing agreement for the contract payments. This is fairly simple to do since the deed is placed in escrow pending completion of the contract. In contract escrow the buyer makes payments into the escrow account, and the escrow agent pays the seller's mortgage out of the account. In this fashion the buyer is protected from the consequences of a default by the seller.