Posted by Rich-CA on November 28, 2008 at 21:11:23:
and since there is a sales agreement, are there dates by which things like inspections, financing and so on must be finished? I’m thinking that for them to get away with claiming equitable interest, they need to be making progress on closing the sale.
The difference between a lease/option and a lease/purchase is that in the first the buyer of the option have the right to purchase according to the terms and price of the option. Whereas under a lease purchase, they are making installment payments towards eventual ownership. The lease/purchase is the one where they have equitable interest. Under an option they have no interest at all until they exercise the option. In essence all you are buying (or selling) with an option is the right to buy as agreed by a set deadline.
I’m filing my first eviction for non-payment of rent. This is a Lease/Purchase with a separate lease and a separate purchase agreement. The Sheriff already delivered the notice by tack and mail and the tenant/buyers filed an answer. We are set to have a court hearing in a few days.
I wanted to get some advise on what I should be prepared for.
-What if the tenant/buyer claims an equitable interest? I was thinking that since the agreements are separate that the judge would rule on the Lease Agreement? What would be my counter if they claimed an equit. interest?
I presume that your separate purchase agreement has a closing date for the purchase, and a clause that states that a default under the lease agreement nullifies the purchase agreement, so no equitable interest is possible.
Bring all of your paperwork to the hearing. You should be able to get a copy of the answer the tenant filed to find out what they are thinking. The judge will not accept stories about why the tenant can’t pay. That is irrelevant. They will only discuss how much is owed and whether you met your obligations under the lease agreement.
The hearing generally lasts only a few minutes. Here again it depends on the county, the judge, and the content of the answer.
By the way, show up looking professional, but not overdressed. This is not the time to show off the new suit or gold watch. It is equally not the time to dress in patched up blue jeans either. Khakis and a polo should go well. Show up early so you can watch the proceedings for a while until it is your turn.
Re: Georgia Eviction for Lease/Purchase - Posted by Rich-CA
Posted by Rich-CA on November 28, 2008 at 17:40:30:
First the disclaimer: I am not a lawyer.
Question: was any portion of the rent going towards the purchase?
If not, then you maintain that since they did not exercise their option as provided for in your option agreement, any claim of ownership is not valid.
Personally, I think that drafting a sales agreement is a mistake when what you really mean to sell them is an option. The agreement should only be an option agreement until they exercise the sale. Not drafting a sales agreement until the option is exercised can help in the future.
Meanwhile, as long as none of the money they give you is towards the purchase, you at least have logic on your side. The problem is judges often have whims that make no sense. Best of luck.
No portion of the rent goes toward the purchase price. It does say on the purchase of sales agreement that their earnest money in the amount of $2,500 goes toward the purchase price.