Legal Question in Real Estate Law in California

We would like to sell our commercial property as a for sale by owner. We still have a balance on the mortgage from the seller but don't believe their is a due on sale clause. Can we proceed with the sale without using a realtor and escrow company. The new buyer understands this and will be making the payment to a note servicing company that will cover the payments of the original mortgage


Asked on 9/04/12, 8:19 pm

2 Answers from Attorneys

There is nothing legally prohibiting what you propose to do. I have to wonder, however, what idiot is willing to buy a building without title insurance and an escrow. I also have to wonder if you really have thought through your legal exposure if the buyer defaults on the note, and are you sure you know and are prepared to comply with all the seller's obligations in a real property sale? If you don't and the buyer finds anything wrong with the property or just gets buyer's remorse, you could be in for a world of trouble. If you already have a buyer and agreed terms, you can probably find a Realtor who will handle the transaction for much less than their full usual commission since they will have no marketing expense. It would probably be money well spent.

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Answered on 9/04/12, 8:41 pm
Anthony Roach Law Office of Anthony A. Roach

You can find out if there is a due on sale clause by getting a copy of the deed of trust (which you erroneously refer to as a "mortgage') from the county recorder's office. That will tell you whether there is a due on sale clause.

I also agree with Mr. McCormick about the title insurance and use of an escrow. The only suggestion that I have to use in lieu of title and escrow is to use an attorney for a "sit down closing," which you would have to pay hourly, but you will not have a policy of title insurance.

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Answered on 9/05/12, 12:38 pm


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