Issues with Due On Sale clauses in loans, and funding a trust or using a beneficiary deed.
The Act appears as 12 USC 1701j-3. See also CFR 12 § 591.5, the federal regulation which allows the enforcement of due on sale clauses with several specific exceptions listed hereafter:
b)Specific limitations. With respect to any loan on the security of a home occupied or to be occupied by the borrower,
(1) A lender shall not (except with regard to a reverse mortgage) exercise its option pursuant to a due-on-sale clause upon:
(i) The creation of a lien or other encumbrance subordinate to the lender's security instrument which does not relate to a transfer of rights of occupancy in the property: Provided, That such lien or encumbrance is not created pursuant to a contract for deed;
(ii) The creation of a purchase-money security interest for household appliances;
(iii) A transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety;
(iv) The granting of a leasehold interest which has a term of three years or less and which does not contain an option to purchase (that is, either a lease of more than three years or a lease with an option to purchase will allow the exercise of a due-on-sale clause);
(v) A transfer, in which the transferee is a person who occupies or will occupy the property, which is:
(A) A transfer to a relative resulting from the death of the borrower;
(B) A transfer where the spouse or child(ren) becomes an owner of the property; or
(C) A transfer resulting from a decree of dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement by which the spouse becomes an owner of the property; or
(vi) A transfer into an inter vivos trust in which the borrower is and remains the beneficiary and occupant of the property, unless, as a condition precedent to such transfer, the borrower refuses to provide the lender with reasonable means acceptable to the lender by which the lender will be assured of timely notice of any subsequent transfer of the beneficial interest or change in occupancy.
None of the above exceptions seem to apply to a beneficiary deed, although receipt by devise is one of the exceptions. While a Joint Tenancy transfer is also one of the exceptions, I would recommend against using that means because JTROS would give a present 1/2 interest. I think he should use a Will to leave the property at death as that transfer is protected from the exercise of the due on sale clause.
Due On Sale