Don’t miss these tips!
We don’t spam! Read our privacy policy for more info.
Check your inbox or spam folder to confirm your subscription.
- Real Estate Jumpstart
- Creative Finance
- Property Management
- Starting A Brokerage
- Private Lending
- Transactional Funding
- Affiliate Program
- Business Services
- Brokerage Start-Up
- Creative Investing
- Real Estate Agents
- Membership Plans
- Login / Register
No products in the cart.
Return to shop
Assignment of Rents – What, Why, and How?
Let’s dive into a playbook every seasoned investor and lender should have at their fingertips: the Assignment of Rents (AOR). It’s like having a backup quarterback ready to take the field when the starter falters. Almost every commercial loan today includes an AOR as part of the Deed of Trust or Mortgage. But what exactly is an AOR, why is it such a powerful tool in your arsenal, and how do you enforce it when the time comes?
What is an Assignment of Rents?
Imagine this: You’re the coach of a football team. The game plan is solid, but suddenly, your star player—your borrower—gets sacked by financial trouble. What do you do? You activate your secret weapon: the Assignment of Rents.
An AOR is like a security blanket for lenders. It grants the lender a security interest in the income generated by the property—leases, rents, profits—essentially all the cash flow that property produces. If the borrower defaults, the lender can step in and collect those rent payments directly from the tenants. But, for this play to work, the lender’s interest needs to be perfected. The AOR must be in writing, executed by the borrower, and recorded with the county where the property is located. The simplest way to cover all bases? Include the AOR in the recorded Deed of Trust or Mortgage.
Why is an AOR So Important?
When your borrower fumbles and defaults on the loan, foreclosure isn’t always the best option. It’s like throwing a Hail Mary—high risk, high cost, and a long wait. But with an AOR, you’ve got a shorter timeline and lower costs. It’s a quick way to get back on track without taking ownership of the property, managing it, or going through the hassle of trying to sell it just to recoup your investment.
Think of the AOR as a way to get back into the game quickly. It lets you tap into the property’s cash flow, helping you recover funds and potentially bringing the borrower out of default. But here’s the kicker: you’ve got to keep an eye on how much you’re collecting. If the borrower’s debt is cleared, you stop collecting. Simple as that.
How Does Enforcement Work?
Enforcing an AOR is like calling the right play at the right time. It can even motivate the borrower to come to the table and work out a deal, especially if they rely on that rental income to cover their own expenses. Most borrowers won’t want to risk losing that income stream, so they’re more likely to negotiate and protect their investment.
But, just like any good coach, you’ve got to be careful. That rental income often covers essential expenses—property management, maintenance, taxes. If those bills fall behind, the property value could take a hit, liens could pile up, or the property could fall into disrepair. That’s bad news for everyone. Also, know the rules of the game—some states require the lender to pay certain property expenses out of the collected rents if the borrower requests it.
California’s Game Plan for AOR Enforcement
In the golden state of California, enforcing an AOR is all about strategy. California Civil Code §2938 lays out four ways to enforce an AOR:
- Appointing a Receiver: Think of this as bringing in a new head coach to take over the team. A court-appointed receiver manages the property, collects rents, and ensures the playbook is followed. It’s not the easiest option since it involves the courts, but it’s effective, especially when borrowers or tenants aren’t playing ball.
- Obtaining Possession of Rents: This is like intercepting the ball. The lender takes actual possession of the rents and applies them directly to the loan.
- Delivering a Written Demand to the Tenant: Sometimes, a simple written demand to the tenant is all it takes to redirect the rental payments from the borrower to the lender. It’s a pre-litigation option that avoids the high costs and slow pace of court proceedings.
- Delivering a Written Demand to the Assignor: Similar to the third option, but this time, the demand is sent to the borrower, instructing them to hand over the rental income.
These options allow you to enforce your AOR without running afoul of California’s One Action Rule or the Anti-Deficiency Rule. It’s a strategic way to keep the ball in your court and score a win for your investment.
Conclusion: Keep the Playbook Handy
Whether you’re gearing up to originate a new loan or dealing with a borrower’s default, knowing the ins and outs of an Assignment of Rents is crucial. It’s your go-to play when foreclosure isn’t the best option. And when executed correctly, it can even foster a better relationship with your borrower. Remember, just like in football, it’s not just about the big plays—it’s about knowing when to call the right one.
Daniel Zabala, MBA, MSF
- Search for:
- 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
- Due Diligence in Oklahoma Real Estate Transactions
- Essential Terms for Every Commercial Lease
- Attorney for Real Estate Contract Review
- Estate Planning
- Real Estate and Investing
Have Questions?