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In an owner-financed sale, the buyer and the
seller have tremendous flexibility when it comes to key
elements of the deal. The parties can tailor their financing
plan; for example, owner-financing arrangements are
often set as “balloon payments,” where the farmer-buyer
makes payments according to a 30-year amortization
schedule and is required to hand over a lump sum of the
remaining balance balloon payment at some point prior to
the full thirty year term (often at the five-year mark). This
assumes that the buyer will build up enough equity in the
property, good credit, and a solid income stream from farm
operations to attract a conventional lender to step in and
enable the farmer-buyer to pay off the owner-seller in full.
In this scenario, the owner-seller would not have to worry
about collecting payments for the entire 30 years.
Other lower-risk strategies an owner seller might
want to use include an above-market interest rate or
a hefty down payment. A seller can require an offer of
personal liability from the buyer, a third-party guarantee
or co-signature on the agreement. Depending on a seller’s
individual circumstances, the heightened risk to the
seller may be offset by the tax advantages the seller could
realize. In an owner-financed sale, the seller pays capital gains on the principal and income tax on the interest over time as the
seller receives annual installments from the buyer, rather than having all state and federal taxes taken in one big chunk in the
year of the closing—as is the case in a traditional
sale.
Buyers and sellers in the owner-financed
transaction can be creative and flexible when it
comes to dealing with situations where the buyer
has temporary problems making payments.
Consider the opportunities where, for example,
the property has a woodlot. The parties can agree
that the owner-financer is allowed to log the
property in the event that the buyer falls behind
on payments, taking enough timber to cover
the amount of the delinquent payments until
the buyer catches up with cash payments. The
same arrangement could work with other farm
products. This is just one example of the flexibility
buyers and sellers can enjoy when financing
a property transfer without a bank. The key is
making sure that the parties clearly spell out any special terms like this to avoid misunderstandings after the deal is done. The
parties should be able to negotiate without the aid of lawyers, but once you come to terms, it is wise for each party to consult
a lawyer with experience in real estate to ensure that the terms of the final agreement are enforceable and clearly reflected in
writing.
Sellers can either be the primary financer or they can team up with another lender to offer financing that enables the
farmer-buyer to meet the total purchase price. This can be especially beneficial to new farmers in cases where conventional
lenders are willing to write a loan for only a portion of the purchase price. The owner-seller provides financing for the balance,
based on terms that are defined by the owner-seller and the farmer-buyer. The farmer-buyer makes two separate regular loan
repayments; one to the conventional lender and the other to the owner-seller, each of which would record a mortgage lien on
the property.
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18 Farmers can also get creative to finance land where the property is not entirely owner or bank-financed. For example, farms can finance part of their land by partnering
with their future customers through the various financing mechanisms outlined in this guide. Farmers can consider giving several seasons’ worth of CSA shares (see Chapter
9: The Multi-year CSA) or specifying an amount of food to be used to pay back part of the principal and/or interest on a loan from a community member over several years (see
Chapter 5: The Promissory Note). Farmers should be aware of the implications of the financing arrangement for triggering securities regulations (see Chapters 1 and 2, Federal
Securities Laws and State Securities Laws), especially in cases where the farmer solicits financing for the land purchase from the general public.
Tax Implications of Owner-Financed Sales
Owner-financed sales can involve complicated tax ramifications,
and it is advisable to consult with a qualified tax accountant to
understand clearly how the IRS will interpret the terms of the
arrangement. For example, in many cases, unless the arrangement
falls under specific exemptions, the IRS expects that some portion
of the loan will be paid back in interest and taxed accordingly. If
interest is not stated in the agreement, it will be imputed or implied
according to IRS regulations and the going IRS’ Applicable Federal
Rate (AFR). Read IRS Publication 537, “Installment Sales,” for more
information on the AFR and tax treatment of owner-financed
sales. AFR rates are based on federal short, medium and long-term
interest rates, and are published monthly in the Internal Revenue
Bulletins (IRBs), available at local IRS offices or online at http://
www.IRS.gov. The rules for including interest hold true even when
sympathetic sellers desire to make zero or low-interest loans. For
tax purposes, if these transactions are to be considered loans (vs.
taxable gifts or capital contributions), they must follow IRS “Below-
market Loan Rules.” For more information about below-market
loans, see IRS Publication 550, “Investment Income,” available
online at http://www.IRS.gov.
Is the Land Encumbered?
Real estate is encumbered when a legal claim exists against a property
that restricts its transferability. Any farmer entering into an installment
contract (conventional owner-financed sale or land contract) should
make sure to ask the all-important question: is the seller’s land or farm
encumbered in any way? In Vermont, buyers can access public records at
the town office to research whether or not any mortgages or liens have
been recorded specific to the property in question. The buyer should also
consult with his/her attorney reviewing the agreement to confirm that the
owner-seller will be able to transfer free and clear title to the buyer at the
end of the payment period. Buyers should also be aware if the owner-seller
is using the installment contract as a “wrap-around” to pay off a mortgage
from another lender while seller is slowly selling to the buyer under the
installment contract (which can be a dicey situation for both owner-seller
and farmer-buyer).