A Regulatory Affairs Division Case Study
By Nicholas Smith, Consumer Protection Officer
The Commission received a complaint from a seller against her listing broker. The broker listed the residential property for sale at $45,000 and acted as dual agent. Due to the condition of the property, the broker believed that traditional financing was going to be unavailable. After procuring a buyer, the broker suggested a lease-to-own arrangement. Both parties were open to the idea and negotiated terms. The buyer would pay a deposit, make regular payments over a three-year period and, at the conclusion of the period, the seller would transfer the deed to the buyer and the buyer would then own the property. This type of lease-to-own transaction is also known as a “contract for deed” or “land installment contract.”
There is no standard contract form for a lease-to-own agreement, so all real estate brokers should advise buyers and sellers to obtain the services of an experienced real estate attorney when conducting these transactions. Rather than referring his clients to an attorney, the broker contacted an attorney himself and communicated that the parties wanted a “lease option” agreement with a three-year term, a $48,000 sales price, a $6,000 deposit and monthly payments of $1,250. A “lease option” is NOT the same as a lease-to-own.
In a “lease option” agreement, the occupant leases the property and has the option of buying the property at an agreed upon price at any point prior to the expiration of the lease. In a lease-to-own agreement, the tenant/buyer pays for the property in full during the payment period with either no balance due at the end of the payment period or a balloon payment due at the end of the payment period.
Based upon the broker’s instructions, the agreement drafted by the attorney in this transaction did not specify that any of the monthly payments would go towards the purchase price, but instead at the end of the three-year term, the buyer had the option to purchase the property at $48,000, less the $6,000 deposit already paid. A signed Offer to Purchase and Contract (Standard Form 2-T) was attached to the agreement reflecting the purchase price and deposit amount with a settlement date at the end of the three-year term.
The broker did not review the attorney-drafted agreement so he failed to realize that the terms were incorrect, to the detriment of his buyer client. The parties signed the agreement and the buyer moved into the property. Fortunately, the buyer learned of the true nature of the agreement after she made approximately five payments rather than her discovering it at the conclusion of the three-year term. The buyer in the transaction said she believed she would own the property at the end of the term, not have the option to buy the property. The broker, attorney and buyer contacted the seller in hopes of executing a new agreement; however, the seller indicated she would not execute a new one as she was satisfied with the deal.
Possible violations of the Real Estate License Law in this case include N.C.G.S. § 93A-6(a) (8) and (10) for being unworthy or incompetent to act in a manner which protects the public and engaging in improper conduct, respectively.