Is a Deed in Lieu of Foreclosure The Best Solution?

By Joel Persinger
YourRealEstateDude.com

With so many folks owing more on their homes than the properties are worth, many have elected to sell their houses in short-sales (sales in which the lender accepts less than what is owed). However, some people are opting for what is called a, “deed in lieu of foreclosure” (signing the property over to the bank to prevent a foreclosure from occurring). But, is this the best solution?

At a recent “broker’s breakfast” hosted by the San Diego Association of Realtors, real estate brokers and managers gathered from around San Diego County. The subject was foreclosures and the attendees heard attorneys representing both the California Association of Realtors and the San Diego Association discuss the problems and issues presented as a result of the large number of foreclosures flooding the market. Among the subjects discussed, was the practice of lenders offering a “Deed in Lieu” as an alternative solution to foreclosure or short-sale.

As a general rule, when homeowners are facing foreclosure they fear three major consequences: damage to their credit rating, the lender chasing them for the difference between what they owe and what their home is worth (the deficiency) and the possibility of having to pay taxes on that difference. The overriding reason why many homeowners elect to sell their homes in short-sales rather than allowing them to be foreclosed upon is in order to minimize the damage in all three of those areas. The question at hand was, “Does a deed in lieu of foreclosure accomplish the same goals?” Unfortunately, the answer is not simple.

The problems with accepting a deed in lieu of foreclosure as your chosen solution can be summed up in a four word quote by one of the attorney’s who was presenting at the morning breakfast. He said, “Deed in lieu? Careful!” While it may be tempting to just give the property back to the lender and wash your hands of the whole mess, the truth is that many lenders won’t let you do that so easily. According to this attorney, some lenders have adopted the practice of offering a deed in lieu of foreclosure while reserving their right to come after you for any deficiency after the home is eventually sold.

This does not mean that a deed in lieu is not the best solution. It simply illustrates the need to check with qualified professionals who have your best interest at heart before agreeing to anything. A short list of those professionals should include an experienced real estate broker, a qualified attorney and a Certified Public Accountant or tax attorney. Most importantly, do not sign anything without fully understanding what it says.