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Understanding the Defeasance Process: A Comprehensive Guide
Definition & Meaning
The defeasance process is a financial procedure used when a borrower wants to sell or refinance a property that was financed through a real estate loan. In this process, the remaining loan balance is utilized to purchase government securities. These securities are then provided to the lender, who in return releases the property, allowing the borrower to proceed with the sale or refinancing. This process can be complex, involving various parties such as lawyers and accountants, and typically takes between 30 to 45 days to complete. However, if a quick sale is necessary, the process can be expedited for an additional fee.
Table of content
Legal Use & context
The defeasance process is primarily used in real estate transactions, particularly in commercial real estate financing. It is relevant in cases where a borrower seeks to refinance or sell a property while still under the obligation of a mortgage. This process often involves legal documentation and may require the assistance of professionals, including attorneys and accountants, to ensure compliance with relevant laws and regulations. Users can manage some aspects of this process using legal templates available through US Legal Forms, which can simplify the necessary paperwork.
Key legal elements
Real-world examples
Here are a couple of examples of abatement:
Example 1: A commercial property owner wants to sell their building but still owes money on their mortgage. They engage in the defeasance process, purchasing government bonds with the remaining loan balance. Once the lender receives these bonds, they release the mortgage, allowing the owner to sell the property.
Example 2: A borrower needs to refinance their property to take advantage of lower interest rates. They use the defeasance process to replace their existing loan with government securities, facilitating the refinancing with their lender. (hypothetical example)
State-by-state differences
Examples of state differences (not exhaustive):
State
Defeasance Process Variations
California
Commonly used in commercial transactions, with specific regulations on securities.
New York
Requires additional disclosures to borrowers regarding the process.
Texas
Less common; alternative methods may be preferred in real estate financing.
This is not a complete list. State laws vary and users should consult local rules for specific guidance.
Comparison with related terms
Term
Definition
Key Differences
Refinancing
Replacing an existing loan with a new one under different terms.
Refinancing does not involve purchasing securities; it simply alters loan terms.
Foreclosure
Legal process where a lender takes possession of a property due to unpaid mortgage.
Foreclosure is a result of default, while defeasance is a proactive financial strategy.
Common misunderstandings
What to do if this term applies to you
If you are considering selling or refinancing a property and believe the defeasance process applies to you, it is advisable to:
Consult with a real estate attorney or financial advisor to understand the implications.
Gather necessary documentation regarding your existing loan and property.
Explore US Legal Forms for templates that can help streamline the process.
Be prepared for potential additional costs if you require expedited processing.
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