Lease Options and Lease Purchase Agreements, commonly referred to as “Lease-to-Own” or “Rent-to-Own” agreements are mistakenly used interchangeably, but they are vastly different. These agreements allow a potential buyer to occupy the seller’s property for a described period before completing the sale. The lease purchase/option arrangement can benefit the buyer and seller in meeting their goals and needs with respect to the transaction and their specific circumstances. In some instances, these agreements may even allow a buyer the opportunity to build a bit of equity in the home as well although it should be stressed that, in some instances, this can backfire and there are no guarantees as to future market value.
You need to understand the differences between a Lease Option Agreement (“Lease Option”) and a Lease Purchase Agreement (“Lease Purchase”).
1.) The Lease Purchase
A Lease Purchase and a Lease Option are very similar in that they both consist of two separate contracts. The two contracts that make up a Lease Purchase are:
a.) A Residential Lease that creates a tenant-buyer lease of the property for a specified term and amount; and
b.) The Contract for Sale and Purchase which obligates each party to the typical terms of a residential purchase agreement upon the expiration of the specified lease term.
Typically, this kind of agreement provides what are referred to as cross-default provisions to ensure that a breach of one of the agreements will result in an automatic breach of the other. As the tenant-buyer has contracted to purchase the property in the context of a Lease Purchase, oftentimes the lease will provide that the tenant-buyer is responsible for maintenance and repairs which are typically the duty of the landlord.
2.) The Lease Option
A Lease Option works similarly to a Lease Purchase in that it consists of two agreements and theoretically allows for the tenant to ultimately purchase the property. However, the tenant does not sign a contract for sale but instead enters into an option agreement (“Option Agreement”).
An Option Agreement provides the tenant-option holder the right to purchase the property at an agreed price during the lease term or other specified term, also called the “Option Period”, in exchange for a fee paid to the seller called the “Option Fee.”
This looks very like a deposit on a contract for sale which is why the Lease Option and Lease Purchase are so often confused. A Lease Option also provides for the cross-default provisions, and the Option Fee referenced above is typically non-refundable. Upon a tenant-option holder’s election to exercise their option to purchase the property, the Option Fee is usually credited to the purchase price, however, there may be an additional deposit required upon the parties’ execution of the contract for sale.
A key distinguishing factor of the Lease Option is that the agreement does not obligate the tenant to purchase the property, but does obligate the seller to sell the property when the tenant properly exercises the option to purchase.
3.) Landlord-Tenant Relationship
Both the Lease Purchase and Lease Option create landlord-tenant relationships. Therefore, if the tenant defaults, the landlord-seller would evict the tenant-buyer or tenant-option holder like a normal tenant. An issue that may arise in the context of an eviction of a tenant to a Lease Purchase or Lease Option is an equitable interest claim. Although not typically successful, a tenant may assert an ownership interest in the subject property, which is grounded in the idea that a Lease Purchase or Lease Option is essentially the equivalent of a sale, like an installment land contract (or contract for deed), whereby the seller retains title to the property as security until the balance is paid by the buyer. If an equitable interest argument prevails, the landlord-seller will be required to remove the tenant by way of foreclosure action, as opposed to a simpler eviction.
4.) What to consider before an agreement
To avoid a potential successful equitable interest claim, a seller should consider certain things when constructing the Lease Purchase or Lease Option:
a.) Structure of Lease Purchase or Lease Option should not resemble a contract for deed;
Limit the lease term to one year or less;
b.) Provide for a security deposit (sellers don’t take security deposits, landlords do);
Seller should continue to pay taxes and insurance on the property;
c.) Do not give large rent credits (this only creates more equity the tenant can claim);
d.) Refrain from using the words “credit”, “seller” and “buyer” in the lease agreement and/or option agreement portion of the Lease Option;
e.) Will the tenant-buyer/option holder be making improvements, and what will the value be of such improvements?; and
f.) What is the difference between the tenant-buyer/option holder’s option price and the fair market value of the property? The closer these amounts, the more equity one could claim.
If you have questions regarding Lease Purchase, Lease Option or any real estate transaction, please contact us.
Lease Option and Lease Purchase Agreements can be useful tools for both the buyers and sellers of real property whether residential or commercial. It is important to understand the differences between to two. The Lease Purchase binds the buyer to purchasing the property by the end of the term of the lease. The Lease Option grants the Buyer the right to purchase the property at the agreed upon terms for the period of the lease, but does not create an obligation to buy.
Lease Purchase and Lease Options are useful tools, but a complex process that needs to be handled by a professional. Both need to be drafted by an experienced real estate attorney representing one of the parties and usually working in cooperation with a Realtor. Failure to use an attorney could easily result in an unenforceable agreement and a legal nightmare. Whatever you do, do NOT rely on free form and advice you find online. Much of this information is incorrect, out of date, or not valid in the State you live in.
About the Author
Oscar is a practicing, Florida attorney, Realtor®, and Florida Supreme Court Certified Mediator. He began working in real estate as a Realtor® in 1994 and later went on to become a real estate attorney in 2002. From 2002-2005 Oscar was the sales director for Ballast Point homes LLC. During his tenure with Ballast Point Homes, he managed a sales team that produced over 55 million dollars in condominium and townhome sales. In addition to residential sales, as an attorney, Oscar has written and negotiated many commercial and residential contracts, leases and purchase options. With over twenty years of experience, Oscar represents buyers, sellers, business owners, other Realtors, and Brokers with professional, personalized service.
Visit Oscar' personal website: SellingStPetersburg.com