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TJ, Esq.
TJ, Esq., Attorney
Category: Business Law
Satisfied Customers: 11650
Experience:  JD, MBA
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I have a 5 acre tract of land a portion of which is the remaining

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I have a 5 acre tract of land a portion of which is the remaining acreage from a 30 acre tract that I bought years ago. I have sold all but 5 acres of the 30 thirty tract. I have built my house on a tract 200' by 225' tract that is a part of the remaining 5 acres. I have a mortgage on the tract on whivh my house is located. I want to build condominiums on the entire acreage and eventually tear my house down and build condos on that portion also. I don't want to tear my house down until I have built and sold several condos. Would there be any problem in giving a free and clear title to a condo that was (is) built on the land that is outside the legal description to the house (200' by 225') if the site for the office and parking designed to serve the condos was located on the 200' by 225' that has a mortgage on it. I do not want to request a mortgage release from the compyany holding the current mortgage for any portion of the 200' by 225'?
Submitted: 5 years ago.
Category: Business Law
Expert:  TJ, Esq. replied 5 years ago.
Hello and thank you for allowing me the opportunity to assist you.

Yes, unfortunately what you suggest will cause problems. You'd need to either grant part of the property where the house is located, or grant an easement to the property where the condos are located. In either case, the title to the property with the house is affected, and the value is diminished. Therefore, the lender will not likely approve (and you apparently don't want to ask anyway).

If you grant the property or easement without approval, then the lender could technically invoke a due on sale clause in your mortgage (if there is one, which is likely), and that means that the entire mortgage would be accelerated. In addition, if there were a foreclosure on that property, then the portion with the parking would be sold as well without regard to the rights granted to the condo property, and thus, the owners of that property will not likely accept it ... they're going to want a clear title, which you can't deliver.

I regret that my answer is generally unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful response. With that in mind, I hope that you found value in my answer. If your concerns were not satisfactorily addressed, then feel free to let me know, as I will be happy to clarify my answer or help with your follow-up questions. In the meantime, please remember to click the green accept button so that I will receive credit and compensation for my time (doing so does not end our session). Positive feedback is always appreciated as well. Thank you and good luck!
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