assignment of rents to bank

Assignment of Rents – What, Why, and How?

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Madelaine prescott, esq., share this post:.

November 29, 2023

These days, almost all commercial loans include an Assignment of Rents as part of the Deed of Trust or Mortgage. But what is an Assignment of Rents, why is this such an important tool, and how are they enforced?

An Assignment of Rents (“AOR”) is used to grant the lender on a transaction a security interest in existing and future leases, rents, issues, or profits generated by the secured property, including cash proceeds, in the event a borrower defaults on their loan. The lender can use the AOR to step in and directly collect rental payments made by the tenant. For an AOR to be effective, the lender’s interest must be perfected, which has a few fairly simple requirements. The AOR must be in writing, executed by the borrower, and recorded with the county where the property is located. Including an AOR in the recorded Deed of Trust or Mortgage is the easiest and most common way to ensure the AOR meets these requirements should it ever need to be utilized.

When a borrower defaults, lenders can take advantage of AORs as an alternative to foreclosure to recoup their investment. With a shorter timeline and significantly lower costs, it is certainly an attractive option for lenders looking to get defaulted borrowers back on track with payments, without the potential of having to take back a property and attempting to either manage it or sell it in hopes of getting your money back out of the property. AORs can be a quick and easy way for the lender to get profits generated by the property with the goal of bringing the borrower out of default. But lenders should carefully monitor how much is owed versus how much has been collected. If the AOR generates enough funds so that the borrower is no longer in default, the lender must stop collecting rents generated by the property.

Enforcement of an AOR can also incentivize borrowers to work with the lender to formulate a plan, as many borrowers rely on rental income to cover expenses related to the property or their businesses. Borrowers are generally more willing to come to the table and negotiate a mutual, amicable resolution with the lender in order to protect their own investment. A word of warning to lenders though: since rental income is frequently used to pay expenses on the property, such as the property manager, maintenance, taxes, and other expenses, the lender needs to ensure they do not unintentionally hurt the value of the property by letting these important expenses fall behind. This may hurt the lender’s investment as well, as the property value could suffer, liens could be placed on the property, or the property may fall into disrepair if not properly maintained. It is also important for lenders to be aware of the statutes surrounding the payment of these expenses when an AOR is being used, as some state’s statutes require the lender to pay certain property expenses out of the collected rents if requested by the borrower.

In addition to being shorter and cheaper than foreclosure, AORs can be much easier to enforce. In California, the enforcement of an AOR is governed by California Civil Code §2938. This statute specifies enforcement methods lenders can use and restrictions on use of these funds by the lender, among other things. Under CA Civil Code §2938(c), there are 4 ways to enforce an AOR:

The appointment of a receiver;
Obtaining possession of the rents, issues, profits;
Delivery to tenant of a written demand for turnover of rents, issues, and profits in the correct form; or
Delivery to assignor of a written demand for the rents, issues, or profits.

One or more of these methods can be used to enforce an AOR. First, a receiver can be appointed by the court, and granted specific powers related to the AOR such as managing the property and collecting rents. They can have additional powers though; it just depends on what the court orders. This is not the simplest or easiest option as it requires court involvement, but this is used to enforce an AOR, especially when borrowers or tenants are uncooperative. Next is obtaining possession of the rents, issues, profits, which is exactly as it seems; lenders can simply obtain actual possession of these and apply the funds to the loan under their AOR.

The third and fourth options each require delivery of a written demand to certain parties, directing them to pay rent to the lender instead of to the landlord. Once the demand is made, the tenant pays their rent directly to the lender, who then applies the funds to the defaulted loan. These are both great pre-litigation options, with advantages over the first two enforcement methods since actual possession can be difficult to obtain and courts move slowly with high costs to litigate. The written demands require a specific form to follow called the “Demand To Pay Rent to Party Other Than Landlord”, as found at CA Civil Code §2938(k). There are other notice requirements to be followed here, so it is essential to consult with an experienced attorney if you are considering either of these options. California Civil Code §2938 specifically provides that none of the four enforcement methods violate California’s One Action Rule nor the Anti-Deficiency Rule, so lenders can confidently enforce their AORs using the above methods with peace of mind that they are not violating other California laws.

Whether you are looking to originate a new loan, or you are facing a default by your borrower, understanding what an Assignment of Rents is and how it operates can be extremely beneficial. Enforcing an AOR can be an easier option than foreclosure and can help promote a good relationship with your borrower when handled correctly. If you have any questions about AORs, or need further details on how to enforce them, Geraci is here to help.

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Properly Enforcing an Assignment of Rents

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In Florida, lenders typically obtain an “assignment of rents” if the property produces income by collecting rent, such as an apartment complex, rental home, rental space, or office building. An “assignment of rents” allows the lender to collect the rent payments, if the borrower defaults on their loan payments. Although the lender and borrower may agree to the assignment of rents in the loan documents, the procedure for enforcing the assignment of rent is governed by Section 697.07, Florida Statutes .

assignment of rents enforce assignment of rents actual assignment of rent sequestration of rents

The Assignment of Rents Should be Recorded

If a lender and borrower agree to the assignment of rents as security for repayment of debt in a mortgage document, the lender will hold a lien on the rent payments. However, to perfect its rents lien against third parties, the lender must record the mortgage in the public records of the county in which the real property is located. Fla. Stat. § 697.07 (2).

How Can a Lender Enforce the Assignment of Rents?

Section 697.07 provides two methods for the lender to enforce the assignment of rent: (i) the actual assignment of rent to the lender, and (ii) the sequestration of rents into the court registry. Wane v. U.S. Bank, Nat’l Ass’n , 128 So. 3d 932, 934 (Fla. 2d DCA 2013) (“Section 697.07 draws a clear line between a motion seeking sequestration of rents into the court registry [under subsection (4)] and a motion seeking an actual assignment of rents to the lender pending foreclosure [under subsection (3)].”).

(i) Actual Assignment of Rent to the Lender

The first method, the actual assignment of rent to the lender, is provided in Section 697.07 (3). If the borrower defaults on the loan, the lender can make a written demand to the borrower to turn over “all rents in possession or control of the [borrower] at the time of the written demand or collected thereafter,” minus any expenses authorized by the lender in writing. Fla. Stat. § 697.07 (3). If the borrower does not turn over rent payments after the lender has made a written demand, the lender may foreclose on the rents lien and collect rent payments, without having to foreclose on the underlying mortgage. Ginsberg v. Lennar Fla. Holdings, Inc. , 645 So. 2d 490, 498 (Fla. 3d DCA 1994) (“[A]n assignment of rent creates a lien on the rents in favor of the mortgagee, and the mortgagee will have the right to foreclose that lien and collect the rents, without the necessity of foreclosing on the underlying mortgage.”).

To receive a court order for the actual assignment of rent, the lender will have to prove that there was a default, and that it made a written demand to the borrower to turn over rent payment. Wane , 128 So. 3d at 934. Additionally, an evidentiary hearing will be required.

(ii) Sequestration of Rent Into the Court Registry

The second method, the sequestration of rent into the court registry, is provided in Section 697.07 (4). This method can only be used if there is a pending mortgage foreclosure lawsuit. Unlike the first method, the lender does not have to prove that there was a default or make a written demand, and an evidentiary hearing is not required.

Either the borrower or lender may make a motion to the court for sequestration of rent into the court registry. Upon such a motion, a court, pending final judgment of foreclosure, may require the borrower to deposit the collected rents into the court, or in such other depository as the court may designate. The court must hear the motion on an expedited basis, and the moving party will only be required to show that there is a pending foreclosure lawsuit, and that there is a provision in the loan documents for the assignment of rent. Wane , 128 So. 3d at 934.

Moreover, a borrower cannot avoid sequestration of rents by raising defenses or counterclaims. Id. ; Fla. Stat. § 697.07 (4). In addition, the borrower will be required to submit records of receipt of rent to the court and lender, typically on a monthly basis throughout the lawsuit. The rents will remain in the court registry until conclusion of the foreclosure action.

To properly enforce the assignment of rents, the first thing lenders should do is record the assignment of rents in the public records of the county in which the real property is located. In the event the borrower defaults on their loan, the lender will have two options to enforce the assignment of rents: the actual assignment of rent to the lender (Section 697.07 (3)), or the sequestration of rents into the court registry (Section 697.07 (4)). If the lender is seeking the actual assignment of rent, the lender must send a written demand to the borrower to turn over the rent payments and provide proof of default. On the other hand, the lender may seek sequestration without proof of default or written demand. Showing the existence of an assignment of rents provision in the loan documents is sufficient to obtain sequestration of rents into the court registry.

Austin B. Calhoun, Esq.
Melissa G. Murrin, JD Candidate

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REAL ESTATE LAW

What is a deed of trust with assignment of rents.

By Rebecca K. McDowell, J.D.

February 24, 2020

Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

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What Is a Corporate Assignment of Deed of Trust?

A deed of trust is a written instrument granting a lien on real property. While slightly different from a mortgage, they are functionally nearly the same. Some states use deeds of trust instead of mortgages while others allow both. Either way, a deed of trust used to secure a commercial loan may also include an assignment of rents , which gives the lender the right to collect rental income from the property in the event of default.

What Is a Deed of Trust?

A deed of trust is a document that a borrower may execute in favor of a lender to give the lender a lien on a parcel of real estate. Like a mortgage, a deed of trust secures the loan by allowing the lender to foreclose on the real estate if the loan isn't paid (although in some states that use deeds of trust, a foreclosure isn't necessary).

Read More: How to Research a Deed of Trust

Deed of Trust vs. Mortgage

A deed of trust is very similar to a mortgage in that it pledges property to secure a loan. A mortgage, however, is simpler; the property owner executes a mortgage document in favor of the lender, and the lender records the mortgage and has a lien , but the property owner still holds title to the property.

A deed of trust, on the other hand, grants an actual ownership interest in the property to a trustee, who holds the property in trust for the lender until the obligation is paid.

What Is an Assignment of Rents?

An assignment of rents is extra security granted to a lender that provides a commercial loan. Commercial loans are loans that are not made for family or household use but for business purposes.

When a borrower grants a mortgage or deed of trust on real estate and the real estate has tenants who pay rent, the lender can demand an assignment of rents in addition to the mortgage or deed of trust.

The assignment of rents means that if the borrower defaults on the loan, the lender can step in and collect the rents directly from the tenants.

Deed of Trust With Assignment of Rents

A deed of trust may contain an assignment of rents clause for that same property. In addition to a clause in the deed of trust, the lender may also require the borrower to execute a separate document called an "Assignment of Rents" that is recorded with the register of deeds.

Whether the assignment is written in the deed of trust only or is also contained in a separate document, it is binding on the borrower as long as its language is clear and sufficient to create an assignment under state law.

Exercising an Assignment of Rents

When a lender decides to collect the rents on the borrower's property, the lender is said to be exercising the assignment of rents. The lender cannot exercise the assignment unless the borrower has defaulted on the loan. Once that happens, the lender can send a written demand to the tenant or tenants, requiring that the rents be paid directly to the lender.

Absolute Assignments of Rents

An assignment of rents most likely will contain language that the assignment is an absolute assignment . In most states, an absolute assignment gives the lender an immediate interest in the rents. This means that the lender actually owns the rents and is simply allowing the borrower to collect them on license until an event of default. Once a default occurs, the lender can intercept the rents without taking any court action; a letter to the tenants is all that's needed.

Every state's laws are different; the law of the state where the property is located will dictate how a lender can exercise an assignment of rents.

Read More: What Is the Difference Between a Deed and a Deed of Trust?

Companies Incorporated: Mortgage States and Deed of Trust States
American Bar Association: Commercial Real Estate FAQs
Schulte Roth & Zabel: Sixth Circuit Upholds Assignment of Rents to Secured Lender
Findlaw: California Civil Code - CIV § 2938
Legal Beagle: What Is the Difference Between a Deed and a Deed of Trust?
Legal Beagle: How to Research a Deed of Trust
Legal Beagle: Documents Needed to Refinance a Mortgage
Legal Beagle: How to File a Property Lien

Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.

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What is an Assignment of Rents?

An assignment of rents and leases is an agreement between the owner of a particular property and a designated second party. The terms and conditions allow that second party to collect any rental payments paid by tenants and to manage that property for a period of time. This type of arrangement is most commonly utilized to settle a loan or some sort of credit extended by the second party to the property owner, and remains in effect until the debt is settled in full.

For the duration of the assignment of rents, the property owner remains the owner of record for the property. There is no transfer of title, although the lender is usually given the privilege of managing the property as he or she sees fit. This means that for the duration of the agreement, the lender can use part of the collected proceeds to maintain the property, while applying the remainder of the collected rent payments toward the outstanding balance of the loan amount.

Choosing to create an assignment of rents usually takes place because the property owner is in need of a quick infusion of resources for some reason. Rather than going with a loan and simply using the property as collateral , the assignment of rents effectively allows the property owner to borrow against future income, which is realized as tenants make regular rental payments. As with any type of loan situation, there is a rate of interest applied to the outstanding balance, with a portion of each month’s proceeds going to retire a part of the principle as well as some of the interest due.

The benefit to the property owner is that loans with this stipulation often carry very competitive rates of interest. This means that over the life of the loan, the owner is likely to pay much less interest on the loan installments. Since an assignment of rents can easily be structured between two individuals, there is also the advantage of not having to go through a bank or mortgage company at all. If the property owner can find an angel lender who is willing to advance money now and receive payments back from the rental proceeds each month, the paperwork is kept to a minimum, and the owner can receive the advance of funds almost immediately.

It is not unusual for an assignment of rents to also contain clauses that protect the interests of both the property owner and the lender. These provisions give the lender protection in the event that the collected rentals slip below a certain point due to vacancies. At the same time, the owner is protected from the lender attempting to gain ownership of the property as long as the monthly payments amount to a minimum figure.

After many years in the teleconferencing industry, Michael decided to embrace his passion for trivia, research, and writing by becoming a full-time freelance writer. Since then, he has contributed articles to a variety of print and online publications, including SmartCapitalMind, and his work has also appeared in poetry collections, devotional anthologies, and several newspapers. Malcolm’s other interests include collecting vinyl records, minor league baseball, and cycling.

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By: dbvirago An assignment of rents is an agreement between the owner of a property and a designated second party that may allow that second party to manage the property for a period of time.

Assignment Of Leases And Rents

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What is an assignment of leases and rents.

The assignment of leases and rents, also known as the assignment of leases rents and profits, is a legal document that gives a mortgage lender right to any future profits that may come from leases and rents when a property owner defaults on their loan. This document is usually attached to a mortgage loan agreement.

Assignment of leases and rents allows lenders to a degree of financial protection in case a loan default occurs. This document is an agreement made between a borrower and a lender of mortgage loans. It often details an exact amount the lender will be entitled to if a default happens.

Common Sections in Assignments Of Leases And Rents

Below is a list of common sections included in Assignments Of Leases And Rents. These sections are linked to the below sample agreement for you to explore.

Assignment Of Leases And Rents Sample

Reference : Security Exchange Commission - Edgar Database, EX-10.9 10 d368735dex109.htm ASSIGNMENT OF LEASES AND RENTS , Viewed October 4, 2021, View Source on SEC .

Who Helps With Assignments Of Leases And Rents?

Lawyers with backgrounds working on assignments of leases and rents work with clients to help. Do you need help with an assignment of leases and rents?

Post a project in ContractsCounsel's marketplace to get free bids from lawyers to draft, review, or negotiate assignments of leases and rents. All lawyers are vetted by our team and peer reviewed by our customers for you to explore before hiring.

Meet some of our Assignment Of Leases And Rents Lawyers

Tiffany received her Juris Doctorate from the J. Reuben Clark Law School, Magna Cum Laude. She is admitted to the Utah State Bar and the New Mexico State Bar. She practices in the areas of real estate, general business, business formation, employment agreements, and civil litigation.

Immigration expert with over 30 years’ experience focused on start-up companies H-1, L-1, E, O-1 visas. PERM and extraordinary ability immigrant visas. Complex family immigration cases and waivers. I also assist early stage comapnies in entity formation and general legal matters for start-up companies in the areas of Telehealth, Technology and International Trade.

A seasoned attorney dedicated to navigating complex legal issues and devising strategic solutions for my clients.

Richard A. Mathurin is as a member of the professional team at Sage Law. Since graduating cum Laude from The University of Notre Dame and UCLA School of Law, Rich has enjoyed an exciting and diversified career in the practice of law. In his early career, he assisted several energy companies all over the world in the development and funding of major wind energy and other green technology projects. Following an assignment by his firm to their Far East offices in Tokyo and Singapore, Rich represented global corporations such as Hitachi, UPS, and Fuji-Xerox in major commercial transactions. More recently, Rich returned to his native San Diego to care for an ill family member and work in the local community. Rich specializes in tax resolution, bankruptcy and small business services helping clients get in compliance with complex tax laws and manage their personal and business finances. When he is not working servicing his valued clients, Rich is an ardent golfer and enjoys rooting for his favorite Boston sports teams.

I proudly hold an active membership with The Florida Bar, I successfully passed the Florida Bar examination in September 2023. My journey into the legal realm began over 5 years ago with dedicated service as a law clerk, where I provided indispensable support at previous law firms. I have distinguished legal expertise in the realm of transational matters. I am highly experienced in entity formations, commercial transactions, mergers & acquisitions, corporate governance & compliance, and business immigration services. I have prepared many independent contractor agreements, employment agreements, purchase and sale agreements, EB-1 and 2 visas, to name a few. I am an adept learner, professional, and committed to high quality legal work.

Ernestas P.

I am a broadly skilled legal professional. I am highly drawn to technology, fintech, intellectual property, privacy law, contracts. I am also experienced in business litigation and business transactions. I have been told to have the following skills perfect time management, critical thinking, problem solving, attention to detail, communication and decision making. As a former flight attendant, I am well versed and acquired many of those skills in a fast faced multicultural/multilingual setting. I am able to work solo or as a team member and quickly adapt to changes. Finally, I am fluent in English, Lithuanian, Russian.

Scott Bowen, Esq brings legal experience in family law, special education law, and healthcare law matters. Scott also has over 20 years of expertise in healthcare compliance, medical coding, and healthcare consulting to the firm.

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Estate Planning & Probate

Assignment of Rents & Leases

Assignment of rents and leases in business and real estate transactions.

An “Assignment of Rents and Leases” is a crucial legal instrument that significantly impacts commercial and residential real estate, and mergers and acquisitions of real estate. Having a properly drafted and executed assignment means the rights and assets that are transferred give the new party (the assignee) the right to receive payments.

What is an assignment of rents and leases?

An assignment of rents and leases is a legal agreement in which the individual or company entitled to receive payments transfers that right to another party. Most often, this occurs (1) when a property owner hires a property manager, or (2) in acquisitions, such as a property management company selling their accounts to another property management company or a commercial landlord selling their portfolio to a buyer.

How is an assignment of rents and leases used?

This arrangement is often utilized in business sales, account sales, financing, and investment transactions as a means of securing debt or protecting the interests of the lender or property owner.

In the financing context, an assignment often grants the lender or assignee the authority to collect and apply the rents from the property should the borrower default on their loan; this is important when the borrower collateralizes real estate in order to receive the loan. In a property management context, an assignment often serves to effectively transfer management rights to the new company.

An assignment of rents and leases is probably most commonly used in a commercial real estate context when there is a sale of a commercial property, or in the residential real estate context when there is a change in property managers.

What terms should be included in an assignment of rents and leases?

Certain components should be included in a proper assignment. Here are a few of the foundational terms for an assignment of rents and leases:

Parties. All parties should be clearly identified and defined. This can include the borrower, lender, assignee, assignor, successor, etc.
Property description. The real estate parcel(s) involved in the assignment should be described by legal description, street address, and more.
Lease terms, rents, and disclosures. The actual lease agreements that are being transferred to the new landlord, property manager, lender, etc. should be provided to the assignor/successor, along with an easy-to-read schedule of rents and other crucial details per parcel or premises.
Rights and obligations. Each party should have their rules, permissions, and contractual rights and obligations outlined in the assignment language. The rights and obligations of each stakeholder will be widely varied based on the needs and financial position of each party, the existing leases being assigned, and the specifics of the subject properties.

Best Commercial Real Estate Attorneys in Oklahoma

It is crucial to engage an attorney with experience in properly negotiating, drafting, and executing assignments of rents and leases. They can guide you through the process, ensuring that the assignment is tailored to your specific needs and complies with all relevant legal requirements. The attorneys of Avenue Legal Group have the experience you need and want in your transaction. Contact our firm to discuss your transaction, assignment of rents and leases, or other real estate documentation.

Looking for local counsel in Oklahoma for your commercial real estate transaction? Our firm frequently works with attorneys, investors, and lenders from outside the state. Contact us by call, text, email, or website submission to discuss your matter.

Other helpful information:

Commercial Real Estate Transactions in Oklahoma
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Assignment of Rents

What you need to know about Assignment of Rents and Leases

Customization of Agreements

Recognizing the uniqueness of each assignment, lawyers tailor their services to the specific needs, property characteristics, and preferences of the parties involved. This customization ensures that the assignment of rent agreement aligns with the context of the transaction.

Land Titles and Regulatory Compliance

Lawyers also ensure that the assignment of rents complies with Alberta’s Land Titles Act , overseeing proper registration of the land titles. This step is crucial for transparency, legal clarity, and enforceability of the agreement.

Recording Interests and Due Diligence

Lawyers navigate the process of recording interests, ensuring that assignments of rents are properly registered in the land titles. This not only serves as public notice but also aids in due diligence for buyers and mortgagors, allowing them to make informed decisions in their real estate transactions.

Navigating the real estate landscape can be tricky. Making the right decisions can have a significant financial impact when purchasing or selling a property. If you would like help with your assignment of rents matter, or if you are unsure whether assignment of rents is in your best interest, contact DLegal today.

Our experienced real estate lawyers know the ins and outs of Alberta real estate law . They will provide legal advice and guidance on any assignment of rents matters or other real estate matters.

The DLegal team is here to support. We will do our best to assist or connect you with those who can help.

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What is an assignment of rents?

by Brian D. Moreno, Esq., CCAL | General Real Estate Law , Homeowners Association

With the collection of assessments, community associations are always looking for creative ways to increase the chance of recovery. One underutilized remedy that may provide associations good results is an assignment of rents. If an owner-landlord fails to pay HOA assessments but continues to collect rent payments from his or her tenant, the association should consider rent assignment. There are prejudgment and post-judgment rent assignment remedies that can be pursued with regard to the delinquency. A post-judgment rent assignment can be pursued by way of a request to the court after a Judgment is entered against the owner-landlord.

A prejudgment rent assignment can be pursued even before filing a lawsuit if executed properly. In California, Civil Code Section 2938 regulates the formation and enforcement of the assignment of rents and profits generated by a lease agreement relating to real property. It provides that “[a] written assignment of an interest in leases, rents, issues, or profits of real property made in connection with an obligation secured by real property. . .shall, upon execution and delivery by the assignor, be effective to create a present security interest in existing and future leases, rents, issues, or profits of that real property. . . .” Once a written assignment of rents is properly authorized and formed, the law creates a security interest (i.e., lien) against the rents and profits paid by a tenant.

The question then is whether the association’s CC&Rs, by itself, creates an assignment of the right to a tenant’s rent payment in favor of the association. Indeed, section 2938(b) provides that the assignment of an interest in leases or rent of real property may be recorded in the same manner as any other conveyance of an interest in real property, whether the assignment is in a separate document or part of a mortgage or deed of trust. Since a homeowners association’s CC&Rs is a recorded document and contains covenants, equitable servitudes, easements, and other property interests against the development, it follows that the assignment of rents relief provided in Section 2938(b) can be extended to community associations provided the CC&Rs contains an appropriate assignment of rents provision.

Section 2938, however, does not clarify whether the CC&Rs document on its own creates a lien and enforceable assignment right. Moreover, a deed of trust is much different than a set of CC&Rs, in that the deed of trust creates a lien against the trustor’s property upon recordation, while a homeowners association would not have a lien until an owner becomes delinquent with his or her assessments and the association records an assessment lien against the property. Therefore, depending on the scope of the assignment of rents provision in the CC&Rs, a homeowners association would likely need to record an assessment lien first before pursuing rents from a tenant. Moreover, even after a lien is recorded, homeowners associations should consider adding a provision in the assessment lien giving notice to the delinquent owner that an assignment right is in effect upon recordation of the assessment lien. Nevertheless, association Boards should consult with legal counsel to ensure proper compliance with the law.

Once the assignment right becomes enforceable, the next issue is how the Association can and should proceed. Section 2938(c)(3) allows the association to serve a pre-lawsuit demand (a sample of which is included in the statute) on the tenant(s), demanding that the tenant(s) turn over all rent payments to the association. This can be a powerful tool for homeowners associations. Moreover, if the tenant complies, the association will receive substantial monthly payments that can be applied towards the assessment debt, and collecting the funds does not appear to preclude the association from pursuing judicial or non-judicial foreclosure proceedings at a later time.

While homeowner associations have the option of pursuing a lawsuit against the delinquent owner and seeking to collect the rent payments after a judgment has been obtained, there are obvious advantages to enforcing the assignment of rents provision prior to pursuing litigation. A pre-lawsuit assignment of rents demand may prove to be more effective and cheaper. Additionally, the tenant affected by the assignment of rents demand may place additional pressures on the delinquent owner/landlord having received such a demand. Given this, the options available pursuant to Section 2938, including the pre-lawsuit demand for rents, should at least be considered and analyzed before action is taken.

Truly, the initial pre-lawsuit demand for rents may persuade the landlord-owner to resolve the delinquency with the association in the face of the potential disturbance of the landlord-tenant relationship. Even if the tenant fails to comply with the demand and/or the owner fails to bring the account current, the association could nonetheless pursue foreclosure remedies and/or seek to have a receiver appointed to specifically enforce the assignment of rents provision.

In sum, if a delinquent homeowner is leasing the property to a tenant, the homeowners association should consider making a pre-lawsuit demand for rent payments. If the association’s CC&Rs does not contain an assignment of rents provision, the board of directors should consider amending the CC&Rs to include an appropriate provision. Without question, the pre-lawsuit demand for rents could provide an excellent opportunity for recovery of unpaid assessments during these difficult economic times.

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Navigating the assignment of a residential lease

A landlord can assign his leases to a new buyer of his building. Likewise, a tenant may be able to assign his lease if he needs to relocate. Find out how to assign your lease and what you can do to protect yourself when doing so.

by Ronna L. DeLoe, Esq.

Ronna L. DeLoe is a freelance writer and a published author who has written hundreds of legal articles. She does...

Assignment of lease by the tenant

Assignment of lease vs. sublease, assignment of lease by the landlord.

As a tenant, you may want to get out of your residential lease without paying the remaining rent. Likewise, if you're a landlord and sell your rental property, the buyer must now collect rent from the tenants, who may have no idea you sold the property. In both situations, assignment of a lease with a release for the tenant and assignment of leases with notice by the landlord accomplish these goals.

A pair of glasses, a blue ballpoint pen, and a calculator resting on a residential lease agreement

If you're the tenant and want to leave before the end of your lease term, you may be able to assign your lease to a third party if the landlord doesn't let you out of the lease. The third party then becomes the new tenant, who is bound by the terms of the original lease and pays rent to the landlord.

Most often, the lease won't permit assignment without the landlord's approval, but leases often state that the landlord cannot unreasonably withhold consent. As long as you produce a tenant who's shown a history of payment under prior leases and has been a model tenant, a landlord should consent to assignment.

The assignment of lease form should include places for the tenant-assignor, the new tenant-assignee, and the landlord to sign. If the master lease allows assignment, then the tenant doesn't need the landlord's permission; the tenant can sign an assignment of lease agreement without the landlord's signature.

If the landlord allows an assignment of the lease, you, as the tenant, also want him to sign a release stating that you're not responsible for the new tenant's failure to pay or for any damage she causes. Without such a release, you may still be liable for both.

When you, as the tenant, assign the lease, you sign an agreement that either reads “Assignment of Lease," “Lease Assumption Agreement," or “Assignment and Assumption Agreement." An assumption of the lease means that the new tenant assumes your obligations, such as paying rent and keeping the apartment in good condition.

An assignment of a lease transfers the tenant's entire rights in the property to a third party. With a sublease, on the other hand, the tenant transfers only a portion of the remaining lease. For example, if the original tenant has six months remaining on his lease and he gives the entire six months to a third party, the tenant is permanently assigning his rights to live on the property to the third party. If, however, the tenant allows that third party to stay at the premises for only three months, and the tenant intends to return after three months, he is subleasing the premises.

A landlord can assign the right to collect rent to someone who has purchased the property. An assignment of lease from the seller to the buyer allows the new landlord to collect rent from any and all current tenants in the building. The language in the landlord's assignment of lease agreement can include assignment of security deposits, if the parties agree to it. An assignment of leases by the landlord to the buyer affords protection to the buyer so he can collect rent.

An assignment of leases by the landlord to the buyer is meaningless if tenants aren't aware the landlord sold the property, which is why it's important for the assignor-landlord to give tenants proper notice. A notice of assignment of lease, which is a form signed by both the assignor-landlord and the assignee, or new landlord, is one way to give notice. Another way is to send a letter on the landlord's letterhead. Either way, the notice must include the new landlord's address and how rent is to be paid.

Both landlords and tenants who become assignors should sign a formal assignment of lease agreement, which an online service provider can prepare for you. If you're the tenant who has assigned your lease, try to get a release or you'll still be liable to the landlord. If you're the landlord, make sure you can count on the new tenant to pay the rent before you release the primary tenant from his obligations under the lease.

Assignments of Rents: Lenders Beware!

Contributed by R. Kymn Harp author of Intent to Prosper and attorney at RSP Law , Chicago, Illinois.

Assignments of Rents. Here’s a topic that doesn’t pop up in light conversation very often.

Assignments of Rents. Virtually every commercial real estate financing includes an assignment of rents – either as a separate instrument, or in the mortgage, or both. We think we know what it means, and what protection it provides. But do we?

Assignments of Rents. What could assignments of rents possibly have to do with Pink Floyd?

It has been suggested on occasion, only half-jokingly, that I don’t like lenders. That is really not true. Lenders are valuable participants in the commercial real estate market. Without lenders, few of my clients could buy, develop or own commercial real estate projects. Commercial lenders provide valuable liquidity to the market (usually) and allow commercial real estate developers and investors to leverage available resources.

For years, I have described commercial lenders and their borrows as “friendly adversaries”. Friendly, because they need each other. Adversarial, because their interests are not always completely aligned. They are each necessary complements to the other.

In good times, all typically works well, with lenders and borrowers sharing a common goal -financing a viable commercial project that makes each of them an attractive return.

In troubled times, like we have seen over the past several years, lenders and borrowers can find themselves at odds. The current economic downturn has been particularly brutal because the commercial real estate market has seen an unprecedented collapse in property values and tenant rental revenue. Lenders often blame the borrower, because the loan has ended up in default. Realistically, for most commercial real estate borrowers, there is little if anything they could have done to prevent a default, save not acquiring and financing the project in the first place – which, in hindsight, most borrows wish, as much as most lenders wish, had been the case. But neither borrowers nor lenders foresaw the dramatic financial debacle we have been experiencing since 2008.

Still, we are where we are. Commercial real estate borrowers are holding projects with substantially lower values than existed five or six years ago, and may be in default of their mortgage loans. Not unreasonably, commercial real estate lenders want their money back.

Assuming the lender has properly documented and administered its commercial real estate loan, the lender should be in the driver’s seat. All else being equal, with a properly documented and administered commercial loan, a lender has a powerful arsenal of enforcement tools at its disposal.

That said, lenders must still comply with the law. Assuming they can pass the test of having a properly documented loan that has been properly administered in a manner that does not violate the rights and interests of the borrower, the mere fact that a lender is owed millions of dollars and has a secured interest in the borrowers project (including, yes, an assignment of rents) does not mean a lender can do whatever it wishes to collect its loan without regard to applicable law.

Do I dislike lenders? No. What I abhor are lenders and their attorneys who ignore the law – which already wildly favors lenders – and take steps in direct contravention of the law to collect their loans. With the legal enforcement deck already stacked in their favor, there is no excuse for lenders to overreach and violate the law in their enforcement efforts. When they do, they should fully expect that I will object on behalf of my borrower clients and seek to hold them accountable. We will pursue compensatory and punitive damages, when appropriate, petition to have their unlawful actions reversed, and will press to have their equitable remedies, including their equitable remedy of foreclosure, curtailed or barred.

Follow the law, and a lender should expect to get what the law provides. Violate the law, and a lender should expect to suffer the consequences.

Enforcement of an Assignment of Rents is a case in point. The law in Illinois, and in most other states, is crystal clear. It is an extension of common law doctrine that has developed over centuries. If a lender is going to require an Assignment of Rents, and plans to enforce the Assignment of Rents, it is incumbent upon the lender to know the law governing Assignments of Rents.

The leading case in Illinois on the effect and enforceability of an Assignment of Rents provision, whether in the mortgage or in a separate document, is Comerica Bank-Illinois vs. Harris Bank Hinsdale, et al, 284 Ill.App.3d 1030, 220 Ill.Dec. 468, 673 N.E.2d 380 (1st. Dist. 1996).

The Comerica case involved a dispute between a property owner/mortgagor and a first and second mortgagee as to who was entitled to collect the rents from shopping center tenants after the mortgagor’s default in payment of the a first mortgage and second mortgage.

The assignment of rents provision in the mortgage provided that, after a default, Comerica could collect rents from the property without taking possession of the property, and without exercising other options under the mortgage.

Comerica, the first mortgagee, sent a notice to tenants that the mortgagor was in default under its mortgage and that under the assignment of rents provision in its mortgage Comerica was entitled to collect the rents. Thereupon Comerica began collecting rents.

The property owner/mortgagor and the second mortgagee objected.

In summary, the Comerica court held as follows:

1. At common law, it was strictly held that the mortgagee must take actual possession before being entitled to rents.

2. A clause in a real estate mortgage pledging rents and profits creates an equitable lien upon such rents and profits of the land, which may be enforced by the mortgagee upon default by taking possession of the mortgaged property.

3. The possession requirement reflects the public policy in Illinois which seeks to prevent mortgagees from stripping the rents from the property and leaving the mortgagor and the tenants without resources for maintenance and repair.

4. Courts will not enforce private agreements that are contrary to public policy.

5. “To obtain the benefits of possession in the form of rents, the mortgagee must also accept the burdens associated with possession – the responsibilities and potential liability that follow whenever a mortgage goes into default. The mortgagee’s right to rents, then, is not automatic but arises only when the mortgagee has affirmatively sought possession with its attendant benefits and burdens”.

6. A mortgagee may be entitled to rents once a receiver is appointed as an incidence of being in “constructive possession”, since having a receiver appointed constitutes affirmative action by the mortgagee, under court authorization.

7. In a foreclosure action, the mortgagee is not entitled to rents until judgment has actually been entered unless the mortgage agreement permits the mortgagee to obtain prejudgment possession.

8. A mere filing of a foreclosure action or request for appointment of a receiver is not sufficient to trigger a mortgagee’s right to collect rents. The receiver must actually be appointed. “The mortgagee is not entitled to the rents until the mortgagee or a receiver appointed on the mortgagee’s behalf has taken actual possession of the real estate after default.”

9. Where a mortgagee does not obtain prejudgment possession of the property (through a court appointed receiver or as a mortgagee in possession), and where rents are collected during a time while the mortgagor remained in possession of the property, the rents so collected belong to the mortgagor.

In making its ruling, the Comerica court relied on Illinois case law, but, noting that the U.S. Supreme Court has required bankruptcy courts to apply State law in determining a mortgagee’s entitlement to rents [Butner v United States, 440 U.S. 48, 99 S. Ct. 914 (1979)], the Comerica court also found relevant bankruptcy decisions and Federal case law to be thorough and persuasive. Among other cases, the Comerica court found persuasive the bankruptcy court opinion in In re. J.D. Monarch Development Co. 153 B.R.829 (Bankr. S.D.Ill 1993).

In the case of In re. J.D. Monarch Development Co. 153 B.R.829 (Bankr. S.D.Ill 1993), the bankruptcy court, applying Illinois law, held as follows:

1. Illinois law recognizes the validity of an assignment of rents included in a mortgage of real estate.

2. Such an assignment creates a security interest in rents that is perfected as to third parties upon recording the mortgage in the real estate records.

3. As between the mortgagee and the mortgagor, however, the mortgagee is not entitled to the rents until the mortgagee or a receiver appointed on the mortgagee’s behalf has taken actual possession of the real estate after default.

4. This is so even though the mortgage instrument contains a specific pledge of the rents.

5. The mortgage does not create a lien upon rents to the same extent that it creates a lien upon the land. Rather, the inclusion of rents in a mortgage merely gives the mortgagee the right to collect rents as an incident of possession of the mortgaged property, and the mortgagee, after default, must take affirmative action to be placed in possession of the property to receive such income.

6. The requirement that a mortgagee enforce its lien on rents by possession of the real estate renders an assignment of rents different from security interests in other property.

7. Typically, a perfected lien gives the creditor an interest in a specific piece of property, whereas an assignment of rents allows the mortgagee to collect rents that come due after the mortgagee takes control of the property. To obtain the benefits of possession in the form of rents, the mortgagee must also accept the burdens associated with possession.

Notwithstanding the clarity of the law on this topic, there are lenders, and lenders’ counsel, and occasionally receivers, who ignore the law or choose to intentionally violate the law by seeking to take the benefits of rental projects by control of rents without accepting the burdens that come with possession. They want the good, but not the bad. The dessert, but not the main course. The pudding, but not the meat.

[Hence my opening reference to Pink Floyd: “How can you have any pudding, if you don’t eat your meat?” Even Pink Floyd understood the public policy applicable to assignments of rents!]

So what is the property owning borrower’s remedy for a lender violating the law by exercising dominion or control over rents payable to the borrower without first obtaining possession of the project?

How about conversion/civil theft? Let’s check-off the elements:

A proper complaint for conversion must allege the four elements of a cause of action for conversion:

(1) an unauthorized and wrongful assumption of control, dominion, or ownership by a lender over a borrower’s personalty (identifiable “rents” count); [ √ check]

(2) borrower’s right to the rents; [ √ check]

(3) borrower’s right to immediate possession of the rents; [ √ check]

(4) borrowers’ demand for possession of the rents. [easy to do: √ check]

“Punitive damages” are available where a defendant willfully or wantonly converts the property of another. Is there any legitimate doubt – especially in Illinois – especially since the court’s clear and unequivocal Comerica decision in 1996 – that a lender who unilaterally converts the rents of a borrower to its own use without taking lawful possession of the rental project does so “willfully or wantonly” in disregard of the project owners’ rights to those rents?

If a lender is intentionally violating the law as it relates to the security for its loan, particularly as it relates to an assignment of rents executed within or in conjunction with a mortgage debt, might the lender also be guilty of “unclean hands” relative to the mortgage security, with the result that a lender might be equitably barred from foreclosing its mortgage in a court of equity? Stay tuned…

The point is not that I wish to prevent a lender from enforcing its legal rights under its loan documents. The point is, a lender must enforce its legal rights within the bounds of the law, just like everyone else.

I didn’t make the rules, but I will enforce them. If a lender insists on violating the law vis-à-vis one of my borrower clients, it should expect to suffer the consequences.

This is not a threat – it is a promise.

Thanks for listening. Kymn

R. Kymn Harp is a seasoned attorney and trusted advisor to commercial real estate investors, lenders, and developers. He is a partner in the Chicago, Illinois law firm of Robbins, Salomon & Patt, Ltd. and may be reached at (312) 456-0378 or [email protected] . For more information, visit his website http://www.rsplaw.com

Article Source: http://EzineArticles.com/?expert=R._Kymn_Harp

R. Kymn Harp

R. Kymn Harp is a recognized thought leader and resourceful advocate for commercial real estate investment and development in Illinois, Indiana and throughout the USA. Kymn is a solutions-oriented attorney who takes a practical approach to all real estate and business transactions. He is a frequent speaker at CE seminars, and is a widely published author on commercial real estate legal topics.

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from Los Angeles, CA
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Assignment of leases and rents to the bank? What's this??

I'm considering a fourplex in a secondary market, and while researching the property on the county website, I found an assignment of leases and rents to the bank. I'll go into more detail below, but I'm trying to figure out if this means the owner is earning no profits while his mortgage is being paid off. And if so, is he a distressed seller? Should I make a low ball offer?

Okay, here are the details of what I found with filing dates:

5/12/2014 - WARRANTY DEED: It appears that the duplex was purchased for $147,700. I don't see any information about a mortgage.

12/17/2015 - COMMERCIAL REAL ESTATE MORTGAGE: This is a commercial (not residential!) loan for $50,000 with a maturity date in one year (12/14/2016).

12/16/16 - MODIFICATION AGREEMENT - MORTGAGE: This document extends the maturity date to 6/2/2017.

12/16/16 - ASSIGNMENT OF LEASES AND RENTS: This is the really interesting document! It assigns "the entire lessor's interest in and to all current and future leases and other agreements affecting the use, enjoyment, or occupancy of all or any part" of the fourplex to the bank. Does this mean the owner is sending a monthly check to the bank with all his proceeds from the fourplex?!!

6/6/2017: MODIFICATION OF AGREEMENT - MORTGAGE: This document extends the maturity date to 6/5/2020.

So, legal eagles of Bigger Pockets, what does this mean? Has the owner forfeited his profits because he still owes the bank money? Shall I use this information to make a low-ball offer? Please let me know what you think is going on and how I should proceed.

Thanks so much!!!

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What exemptions apply to AB 1482, California’s rent-control law?

Legal compliance & taxes.

Written by Brian Boucher

On October 7, 2019, California governor Gavin Newsom signed Assembly Bill 1482 (AB 1482), the California Tenant Protection Act of 2019, to give Golden State residents some relief from soaring rents and home prices by instituting rent control.

For the majority of California's multifamily housing stock, AB 1482 caps annual rent increases at 5 percent plus the rate of inflation, or 10 percent, whichever is lower. The rent control law also requires a property owner to have “just cause” to evict a tenant. But there are AB 1482 exemptions.

AB 1482 affects about 2.4 million homes and apartments and is in force until 2030.

When Newsom signed the Tenant Protection Act, the Covid-19 pandemic was still five months away from hitting in force. And in the last two and a half years, home prices and rents have continued to rise.

As of March, Los Angeles's median home price was about $920,000; in San Francisco , that figure was $1.5 million. In a survey conducted by the Public Policy Institute of California, some 55 percent of Californians were concerned they would be unable to make their rent or mortgage payments this year.

With the signing of AB 1482, California became the second state in the union, after Oregon, to establish statewide rent control. The California Apartment Association called it “the most significant policy change for California's rental housing owners and tenants in a quarter century.”

What types of housing are exempted from both the rent cap and just cause limitations?

Rentals state-wide are covered, but there are some AB 1482 exemptions. Some are exempt from both the rent cap and the just-cause limitations:

Units constructed in the last 15 years are exempt (on a rolling basis, i.e., a unit constructed on January 1, 2008 is not covered as of January, 1 2023, but is covered on and after January 1, 2023).
Units are exempt if they are restricted to be affordable for low- or moderate-income residents.
A single family home is exempt unless it's owned by a real estate investment trust (REIT), a corporation, or an LLC where one of the members is a corporation. The owner must inform the renter in writing that the tenancy is not subject to the rent cap and just cause limitations.
Duplexes and other two-unit properties are exempt if one unit is occupied by the owner.
Some dormitories are exempt.

The exemption for single family residences does not apply if there is more than one dwelling unit on the same lot, or if there is an additional dwelling unit in the building that cannot be sold separately (such as an in-law unit).

What are some just causes to evict tenants?

All of the following would qualify as a just cause to evict a renter under the Tenant Protection Act:

Nonpayment of rent.
A breach of the material term of the lease.
Nuisance, waste, unlawful, or criminal activity.
Refusal to sign a written extension or renewal of the lease.
Assigning or subletting.
Refusal to allow the owner to enter the unit.
The owner moving themselves or a family member into a unit.
The owner substantially renovating.
The owner going out of business.

What rental property units are exempt from the just cause regulations?

Rental properties that are already subject to a local ordinance that requires just cause to terminate a tenancy and is more protective than state law.
Single family, owner-occupied residences where the owner rents no more than two bedrooms or units, including accessory dwelling units and junior accessory dwelling units.
Accommodations in which the tenant shares a bathroom or kitchen with the owner, if the owner uses the property as their principal residence.

What are the provisions for eviction under AB 1482?

Eviction provisions apply only after all tenants have lived in the unit for one year or more, or if at least one tenant has occupied the unit for two years.
A tenancy may not be terminated without just cause, which must be stated in the termination notice.
Some just cause reasons are categorized as at-fault, some as no-fault. In the case of no-fault evictions, relocation assistance is required.
The mere expiration of a lease or rental agreement is not a just cause.

What are the rent increase limits and exceptions?

For units covered by the Tenant Protection Act, annual rent increases are limited to no more than 5 percent plus the percentage change in the cost of living for the region in which the property is located, or 10 percent, whichever is lower.
For rent increases that take effect before August 1, the percentage change is calculated using the amount published for April (or March, if no amount is published for April) of the immediately preceding calendar year and April (or March) of the year before that.
For rent increases taking effect on or after August 1, the percentage change is calculated using the amount published for April (or March, if no amount is published for April) of that calendar year and April (or March) of the immediately preceding calendar year.
The percentage change must be rounded to the nearest one-tenth of one percent.
No more than two increases are allowed in any 12-month period, and the total increase cannot exceed the 5 percent plus CPI cap.
The total rent paid by subtenants to a master tenant cannot exceed the rent charged by the owner.
There is no limit on the initial rent charged for a vacant unit.

How must property owners communicate with tenants?

Property owners must inform residents in any unit covered by the state law of the rent control and just cause laws. Any resident moving in after July 1, 2020 must be informed in an addendum to the lease or rental agreement or in a written notice signed by the resident, and they must receive a copy.

The notice language must read:

California law limits the amount your rent can be increased. See Section 1947.12 of the Civil Code for more information. California law also provides that after all of the tenants have continuously and lawfully occupied the property for 12 months or more or at least one of the tenants has continuously and lawfully occupied the property for 24 months or more, a landlord must provide a statement of cause in any notice to terminate a tenancy. See Section 1946.2 of the Civil Code for more information.

An owner claiming an exemption because the property is a single family home or condominium must provide a written notice to the resident.

For any tenancy commenced or renewed on or after July 1, 2020, this notice must be provided in the rental agreement.

If the owner does not provide the required notice, then a single family home or condominium is not exempt from the just cause or rent cap regulations.

This property is not subject to the rent limits imposed by Section 1947.12 of the Civil Code and is not subject to the just cause requirements of Section 1946.2 of the Civil Code. This property meets the requirements of Sections 1947.12 (d)(5) and 1946.2 (e)(8) of the Civil Code and the owner is not any of the following: (1) a real estate investment trust, as defined by Section 856 of the Internal Revenue Code; (2) a corporation; or (3) a limited liability company in which at least one member is a corporation.

How are violations of AB 1482 enforced?

AB 1482 can be enforced only in state court. While no penalties are listed in the law itself, residents can sue for damages for wrongful eviction or unlawful business practices based on violations of AB 1482.

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A banker asked us: General vs specific assignments of rents and leases in Ontario

Q: What is the difference between a general assignment of rents and leases and a specific assignment of rents and leases, and when should I include them in my term sheet for a commercial real estate financing of an Ontario property?

A: In situations where a borrower owns real property in Ontario that either is or will be leased to third party tenants, a lender should consider obtaining either a general assignment of rents and leases or a specific assignment of rents and leases in addition to a mortgage on the secured property. Like a mortgage, an assignment of rents and leases should be registered against title to the subject property, and in addition, should be registered under the applicable personal property security legislation as the rents and leases that are being secured by the assignment fall within the definition of personal property under that legislation. [1]

An assignment of rents and leases, be it a general assignment of rents and leases or a specific assignment of rents and leases, provides a lender with two principal benefits which may be realized by the lender after an event of default:

it permits the lender to receive the rent payments that the borrower/landlord would otherwise be entitled to, and this revenue stream from the tenants is a significant asset that should be secured; and,
it permits the lender to step into the shoes of the borrower/landlord and exercise all of the rights and remedies available to the landlord to ensure that the full benefit and value of the lease is realized by the lender, which includes for example, the right to demand payment in the event of non-payment of rent by a tenant and to assign the lease to a purchaser in the event of a power of sale proceeding.

The only difference between a general assignment of rents and leases and a specific assignment of rents and leases is the revenue streams and leases to which they apply. A general assignment of rents and leases applies to all present and future rental income and leases in respect of a particular property. Once in place, a general assignment of rents and leases gives the lender a right to the rental income and the ability to exercise all of the rights of the landlord under a lease in respect of all leases of the property, including but not limited to any new leases, subleases or assignments of lease entered into after the assignment is granted and registered. In contrast to this, a specific assignment of rents and leases only applies to leases which are specifically listed in the document. In the event that any of the specifically listed leases expire or are terminated, and/or a new lease or sublease is put in place, the specific assignment of leases will not apply to this new lease or sublease and the lender will have no right to the rental income or rights resulting from the new lease or sublease.

In most lending situations, the lender will prefer a general assignment of rents and leases as it provides the most comprehensive security. The lender will have security over all rental income, and be able to exercise the rights of the landlord, regardless of who the tenants are in the future, or what leases the borrower has in place at the time of default under the terms of the loan or credit facility. However, where there is a principal or anchor tenant that represents a preponderance of the rental income, and/or the borrower objects to a general assignment of rents and leases securing all rents and leases as too broad a security interest, the lender may only be interested in securing the rental income and landlord rights associated with a specific principal or anchor lease, or a particular group of leases. In such a situation, a specific assignment of rents and leases may be a reasonable compromise position for a lender to adopt. Alternatively, in situations where multiple lenders are taking security in a particular parcel of real property, specific assignments of rents and leases allow the various lenders to divide the rental income and leases among themselves, with each lender only obtaining security in a specifically agreed upon lease or group of leases.

The above is a general overview of general and specific assignments of rents and leases. The professionals in Gowling WLG (Canada) LLP’s financial services practice group would be pleased to discuss your lending and real property security needs in greater detail, and help you chose the security documents most appropriate for your lending needs.

[1] Some financial institutions have chosen to incorporate into their Standard Charge Terms for their mortgages various provisions that serve as a general assignment of rents, and they do not register a separate general assignment of rents as a result.

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2022 Update: How Much Can a Landlord Legally Raise the Rent in California

May 13, 2022

Read the NEW 2023 UPDATE on how much landlords can legally raise the rent in California!

Rents nationwide are skyrocketing to insane levels, and in some areas, they’ve gone up more than 30% percent . The record-high inflation that we’re experiencing has also brought the cost of living in California through the roof. But what about rents in California? How much can a landlord legally raise the rent in California? Although it’s a common question for landlords and tenants alike, there isn’t a straightforward answer that works for everyone. The short answer is that it depends on your property and location in California. In this article, we’ll be covering everything you need to know so you can figure out the specific answer for you!

California is home to over 40 million people, and half of its population are renters. As a result of rising rent prices that have been continuously increasing for the last two decades, California has also turned into one of the most expensive places to live in the United States. An ongoing housing crisis that can’t meet housing demand and dwindling middle-class jobs have forced the State of California to pass a series of rent control laws with AB-1482 to help maintain affordable housing for low-income and moderate-income households. Unlike in many other states, California’s rent control laws and tenant protection laws passed during the COVID-19 pandemic have mostly prevented skyrocketing rental prices and mass evictions.

What is the minimum a landlord in California can raise the rent?

One of the main reasons a property owner may consider raising the rent prices annually is to keep up with inflation. Inflation basically reflects the annual percentage change in the cost of consumer goods and services, and it is typically measured by the U.S. Bureau of Labor Statistics as the Consumer Price Index . Before 2021, the rate of inflation in the United States typically varies between 1% to about 4% .

In 2022, many renters and landlords like yourself are worried because the rate of inflation in the United States has risen to record-high levels that we haven’t seen since 1980. Last month in March 2022, the rate of inflation was as high as 8.5% .

According to the Tenant Protection Act of 2019, also known as AB 1482, landlords are allowed annual rent increases of 5% plus the percentage change in the cost of living ( Consumer Price Index) per year , up to 10%.

Technically, there is no minimum amount landlords can raise the rent. Landlords are not legally required to raise the rent every year so a landlord in California may raise the rent by 0% or as low as 0.1%.

However, there are exemptions to this rent control law. Certain properties are exempt from AB 1482, and landlords have the right to raise the rent however much they please.

Which properties are exempt from rent control?

These properties are exempt from the Tenant Protection Act of 2019:

Single-family homes and condominiums as long as they are NOT owned by a corporation, a REIT (real estate investment trust), or an LLC where one member is a corporation.
Any duplex where the owner lives in the other unit
Mobile homes
School and college dormitories
Commercial properties (retail stores, restaurants, etc.)
Buildings built within the last 15 years (including accessory dwelling units)
Rental properties provided by non-profit organizations
Rental properties subject to pre-existing local ordinances

If a rental property falls under any of these situations, the landlord must provide a notice of exemption from AB 1482 to their tenants. Landlords with properties that are not subject to rent control laws can increase their rents as much as necessary.

However, we still urge both landlords and tenants to double-check with their local city laws as some cities, which have had rent control laws in place before AB 1482 , have special restrictions.

What is the maximum a landlord in California can raise the rent?

The answer to this question is sort of complicated because it depends on the city and county you’re located in. As stated in AB1482, every rental property in California (that is not exempt from rent control) can have an annual rent increase of 5% plus the percentage change in the cost of living ( Consumer Price Index) per year .

The CPI is a measure, published by the US Bureau of Labor Statistics , of the average change over time in the prices paid by urban consumers for a market basket of consumer goods and services, which is basically a measure of inflation in the economy.

The lawmakers of AB 1482 decided that the CPI percentage change should be based from April 1st of the prior year to April 1st of the current year for the region where the property is located.

What this means is that:

there are different CPI indexes available for different cities and regions in the United States,
and in order to calculate the maximum amount landlords can increase rent in your area (5% plus CPI),
you must use the April CPI for your metropolitan region in California.

If you want to learn how to calculate your region’s CPI, you can read our detailed step-by-step guide here .

According to the Bureau of Labor Statistics in 2022, the nationwide CPI went up to 8.5% in March and 8.3% in April. Here are the CPI numbers for California and its four major areas:

For the Los Angeles-Long Beach-Anaheim Area, the April 2022 CPI is 7.9%. This area includes Los Angeles County and Orange County.
For the San Francisco-Oakland-Hayward Area , the 2022 CPI is 5.0%. This area includes Alameda County, Contra Costa County, Marin County, San Francisco County, and San Mateo County.
For the Riverside-San Bernardino-Ontario Area, the CPI rose to 10% in March 2022. This area includes Riverside County and San Bernardino County.
For the San Diego-Carlsbad Area, the CPI rose to 7.9% in March 2022. This area includes all of San Diego County.
For any county or city that isn’t included in the four main areas, you’ll need to use the California State CPI which rose up to 7.4% in 2022 according to the California Department of Industrial Relations.

When you add your region’s CPI to the minimum allowable rent increase of 5% using 2022 CPI numbers, you may end up with a two-digit number. For example, if you live in Long Beach, which is Los Angeles County, you may have a number of 12.9%. However, that is not the maximum a landlord can raise the rent in Long Beach.

That’s because California’s AB-1482 rent control law caps the maximum allowable annual rent increase to only 10% . So in most cities and situations, California landlords who are not exempt from rent control can only raise the rent by a minimum of 5% and a maximum of 10% starting August 1, 2022 until July 31, 2023.

Before August 1, 2022, landlords must use the rental increase limits using the CPI numbers from April 2021 , which we’ve provided in the image below.

Please also be aware that there may be rent freezes due to COVID-19 in your city. For example, there is currently a rent freeze in effect for the city of Los Angeles (not Los Angeles County) until May 2023.

Important Note: This calculation of (5% + April CPI) applies to most situations. However certain cities in California, which have had rent control in place before 2020, may have slightly different rent control laws. So we’re also going to show you a step-by-step process on how to figure out the rent control laws in your city or county.

How to Figure Out the Specific Rent Control Laws in Your City or County

The statewide rent control law AB-1482 is really the least strict law that covers the entire state and is the minimum standard. However, many cities and counties within California have already had long-existing rent control ordinances that may be stricter than the state rent control law. There are also many California cities and counties that have decided that the state law isn’t strict enough. Therefore your city or county may be one of these areas in California with stricter rent control ordinances that overpower the state’s own rent control law.

Because of this, it is very important for you to know the specific rent control laws in your city or county. Whether you’re a landlord or tenant, knowing the specific rent control laws will help you learn whether they apply to you or not, and can help you avoid legal troubles.

Here’s the 5-Step-Process:

Check to see if your county or city has an active rent freeze due to COVID-19.
Check whether your county or city has extra rent control ordinances. Here’s a helpful article that covers all California cities with extra ordinances .
Read the ordinance summary carefully so you’re aware of the legalities.
Determine the CPI for your region. Read this article on how to find the CPI for your area .
Contact your city or county’s housing department to confirm your information. This chart contains contact information that you’ll need .

What other resources could I use to determine how much landlords can legally raise the rent in California?

The next best resource for tenants or landlords curious about rent increase limits would be local apartment associations. Below is a list of some major apartment associations in California that you can reach out to:

Apartment Association of Greater Los Angeles
Apartment Association of Orange County
California Southern Cities Apartment Association
NorCal Rental Property Association
East Bay Rental Housing Association
San Diego County Apartment Association
California Apartment Association

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As economic conditions force greater numbers of commercial real estate deals into distress situations, issues relating the respective rights of borrower’s and lender’s to control and use rents also increase. Control and use of cash flow generated by commercial real estate properties is central to any workout, restructure or enforcement activity.

In documenting commercial mortgage loans, lenders routinely take assignments of rents through the terms of the mortgage or by a separate assignment, or both. Lenders have long sought to characterize these assignments as being an absolute rather than merely collateral in nature. Under these absolute assignments, borrowers are granted a revocable license to collect and use rents, which is subject to termination upon default. Under this construct lenders can characterize borrower’s interests in rent as being contingent prior to termination of the so-called license back, and non-existent after termination.

In bankruptcy, this construct can be crucial in determining whether rents are part of the debtor’s bankruptcy estate. A court upholding the validity of an absolute assignment of rents allows the lender to assert ownership and control cash, and limits a debtor’s ability to reorganize. Conversely, courts that view absolute assignments as really collateral assignments, require lender’s to engage in some extensive enforcement activities to secure control of the rental stream.

A split of authority persists among states regarding the treatment of rents subject to an absolute assignment of rents in bankruptcy. Given that the borrower still retains a contingent interest in rents subject to an absolute assignment to the extent the debt is ever paid off, some states hold that they are better considered part of the borrower’s bankruptcy estate. Connecticut and Massachusetts are two such states. In Cavros v. Fleet National Bank, the U.S. Bankruptcy Court for the District of Connecticut held that an assignment of rents purporting to convey “the entire lessor’s right, title and interests in” all rents was in substance a mortgage because the borrower retained the power to divest the lender’s interest through satisfaction of the mortgage debt. The court held that this “equitable title” or “equity of redemption” persisted until extinguished in a foreclosure action. Given the borrower’s continuing interest in the rents, the court held that they were part of the borrower’s bankruptcy estate. In Lyons v. Federal Savings Bank, the U.S. Bankruptcy Court for the District of Massachusetts similarly held that an assignment of rents purporting to “unconditionally” assign all rents constituted additional security, rather than absolute title, because the assignment was made conditional on the borrower’s default and would terminate upon payment of the debt.

By contrast, New York and Vermont have recognized that an absolute assignment of rents can convey full title and accordingly have not included such rents in the borrower’s bankruptcy estate. In In re Loco Realty Corp., the U.S. Bankruptcy Court for the Southern District of New York looked strictly at the language of the assignment which purported to “absolutely and unconditionally” assign all right, title and interest in all rents. Although the court acknowledged that the borrower had “an interest in the rents to the extent the mortgage is ever satisfied”, it held that until such time, the rents were not the borrower’s property and were not to be included the borrower’s bankruptcy estate. In In re Galvin, the U.S. Bankruptcy Court for the District of Vermont also looked to the language of the assignment and determined that it conveyed absolute title to lender and therefore that the rents were not part of the borrower’s bankruptcy estate. Although the agreement provided that the rents were “additional security”, it also evidenced an “intent . . . to establish an absolute transfer and assignment”, which the court found more persuasive.

Although treatments of assignment of rent in bankruptcy varies state to state, mortgage lenders are still well advised to use the construct of an absolute assignment with a license back in documenting their transactions.

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IMAGES

Assignment Leases Rents Form
Assignment Of Lease Template
Collateral Assignment of Leases and Rents
Assignment Of Rents By Lessor Example Template
Deed Of Trust And Assignment Of Rents Form
Landlord Assignment Of Lease Form Forms

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COMMENTS

Assignment Of Rents
An Assignment of Rents ("AOR") is used to grant the lender on a transaction a security interest in existing and future leases, rents, issues, or profits generated by the secured property, including cash proceeds, in the event a borrower defaults on their loan. The lender can use the AOR to step in and directly collect rental payments made ...
How Lenders Can Enforce the Assignment of Rents
Section 697.07 provides two methods for the lender to enforce the assignment of rent: (i) the actual assignment of rent to the lender, and (ii) the sequestration of rents into the court registry. Wane v. U.S. Bank, Nat'l Ass'n, 128 So. 3d 932, 934 (Fla. 2d DCA 2013) ("Section 697.07 draws a clear line between a motion seeking ...
What Is Assignment of rents?
The assignment of rents is a legal mechanism whereby a property owner (often a borrower) assigns the right to collect rent payments from a particular property to a third party, typically a lender. This is usually done as a form of security interest for a loan or mortgage. The primary purpose of the assignment of rents is to provide financial ...
What Is a Deed of Trust With Assignment of Rents?
An assignment of rents most likely will contain language that the assignment is an absolute assignment . In most states, an absolute assignment gives the lender an immediate interest in the rents. This means that the lender actually owns the rents and is simply allowing the borrower to collect them on license until an event of default.
What is an Assignment of Rents?
An assignment of rents and leases is an agreement between the owner of a particular property and a designated second party. The terms and conditions allow that second party to collect any rental payments paid by tenants and to manage that property for a period of time. This type of arrangement is most commonly utilized to settle a loan or some ...
Assignment Of Leases And Rents: Definition & Sample
The assignment of leases and rents, also known as the assignment of leases rents and profits, is a legal document that gives a mortgage lender right to any future profits that may come from leases and rents when a property owner defaults on their loan. This document is usually attached to a mortgage loan agreement.
Assignment of Rents & Leases
An assignment of rents and leases is a legal agreement in which the individual or company entitled to receive payments transfers that right to another party. Most often, this occurs (1) when a property owner hires a property manager, or (2) in acquisitions, such as a property management company selling their accounts to another property ...
Understanding Legal and Practical Considerations Related to Assignment
A properly perfected assignment of rents does not give the lender the right to specific rents (in a nonbankruptcy context at least) unless the borrower defaults and the lender properly exercises its enforcement rights. After a default, the lender has four means of enforcing its lien on rents under Civil Code section 2938, subdivision (c):
Assignment of Rent definition and explanation
In some cases the Assignment of Rent is a full document while in other cases it is just a clause of the mortgage contract. It becomes null and void when the full amount of debt is paid to the lender or when the lease period is over. The Assignment of Rent is more common in the case of commercial properties than residential properties.
Assignment of Rents
An "assignment of rents" is a legal document or provision in a mortgage or loan agreement that transfers the right to collect rental income from a property to the lender. This arrangement is common in real estate financing, especially in the context of commercial mortgage financing involving income-generating properties.
Enforceability of Assignment-of-Rents Provisions
The crazy quilt of assignment-of-rents decisions issued by both state and federal (including bankruptcy) courts over the past several years with respect to the enforceability of assignment-of-rents provisions in mortgage-loan documents highlights the desirability of adopting - sooner rather than later -- the Uniform Assignment of Rents Act ...
What is an assignment of rents?
It provides that " [a] written assignment of an interest in leases, rents, issues, or profits of real property made in connection with an obligation secured by real property. . .shall, upon execution and delivery by the assignor, be effective to create a present security interest in existing and future leases, rents, issues, or profits of ...
Navigating the assignment of a residential lease
An assignment of lease from the seller to the buyer allows the new landlord to collect rent from any and all current tenants in the building. The language in the landlord's assignment of lease agreement can include assignment of security deposits, if the parties agree to it. An assignment of leases by the landlord to the buyer affords ...
How to Enforce the Assignment of Rents During Foreclosure
If the junior had an absolute assignment of rents and the senior's assignment of rents clause was merely a security assignment, it was thought that the senior would nevertheless prevail (on future rents) when there was a default and the senior then enforced its lien. (Childs Real Estate Co. v. Shelburne Realty Co., supra, 23 Cal.2d 263; Lovett v.
Assignments of Rents: Lenders Beware!
The leading case in Illinois on the effect and enforceability of an Assignment of Rents provision, whether in the mortgage or in a separate document, is Comerica Bank-Illinois vs. Harris Bank Hinsdale, et al, 284 Ill.App.3d 1030, 220 Ill.Dec. 468, 673 N.E.2d 380 (1st. Dist. 1996).
Assignment of leases and rents to the bank? What's this??
12/16/16 - ASSIGNMENT OF LEASES AND RENTS: This is the really interesting document! It assigns "the entire lessor's interest in and to all current and future leases and other agreements affecting the use, enjoyment, or occupancy of all or any part" of the fourplex to the bank. Does this mean the owner is sending a monthly check to the bank with ...
II. Assignment of Rents and Profits
C. Effect of Assignment of Rents Clause. Prevention of Waste and Skimming. The presence or absence of an assignment of rents clause has a significant effect on the remedies available to the beneficiary after the trustor defaults. A debtor in possession of the mortgaged property is less likely to continue maintaining it after a default on the loan.
What exemptions apply to AB 1482, California's rent-control law?
Rentals state-wide are covered, but there are some AB 1482 exemptions. Some are exempt from both the rent cap and the just-cause limitations: Units constructed in the last 15 years are exempt (on a rolling basis, i.e., a unit constructed on January 1, 2008 is not covered as of January, 1 2023, but is covered on and after January 1, 2023).
A banker asked us: General vs specific assignments
A: In situations where a borrower owns real property in Ontario that either is or will be leased to third party tenants, a lender should consider obtaining either a general assignment of rents and leases or a specific assignment of rents and leases in addition to a mortgage on the secured property. Like a mortgage, an assignment of rents and ...
2022 Update: How Much Can a Landlord Legally Raise the Rent in
So in most cities and situations, California landlords who are not exempt from rent control can only raise the rent by a minimum of 5% and a maximum of 10% starting August 1, 2022 until July 31, 2023. Before August 1, 2022, landlords must use the rental increase limits using the CPI numbers from April 2021, which we've provided in the image ...
Treatment of an Absolute Assignment of Rents in Bankruptcy
Fleet National Bank, the U.S. Bankruptcy Court for the District of Connecticut held that an assignment of rents purporting to convey "the entire lessor's right, title and interests in" all rents was in substance a mortgage because the borrower retained the power to divest the lender's interest through satisfaction of the mortgage debt.
Below Market Rate (BMR) Rental Program
FOR MORE INFORMATION, CONTACT Rise Housing:[email protected](415) 301-5448 (messages returned within 36-48 hours) Visit Rise Housing for FAQs, Cupertino BMR Rental, and BMR Homeownership information. The Cupertino BMR Rental Program is designed to assist very-low and low-income households. The BMR Program uses maximum income limits ...
Apartments for Rent in Cupertino, CA
ABOUT THIS HOME. Cupertino apartment for rent. ** Please include a contact number while inquiring about this property ** This unit is located at 10159 S Blaney Avenue, Cupertino, 95014, CA Monthly rental rates range from $2918 - $4720 We have 1 -. $3,130/mo. 1 bed 1 bath — sq ft.
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assignment. The city assessed $198,257.49 in real estate taxes on Outfront for the MBTA signs located in the city for fiscal year 2021. Outfront paid the taxes and applied for an abatement of all such taxes assessed by the city. The city denied the abatement applications, and Outfront timely appealed to the board, which upheld the tax ...