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A Uniform and More Rational Approach to Rents As Security for the Mortgage Loan

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A Uniform and More Rational Approach to Rents As Security for the Mortgage Loan A UNIFORM AND MORE RATIONAL APPROACH TO RENTS AS SECURITY FOR THE MORTGAGE LOAN Julia PattersonForrester" I. INTRODUCTION For a lender making a loan secured by a mortgage' on an office building, shopping center, apartment complex, or other income-producing property,2 rents are an important aspect of * Assistant Professor of Law, Southern Methodist University School of Law, Dallas, Texas; B.S.E.E. 1981, J.D. 1985, The University of Texas at Austin. I wish to thank Professors Linda S. Eads, Jeffrey M. Gaba, Grant S. Nelson, Howard J. Taubenfeld, and Peter Winship for their comments on drafts of this Article, and I wish to thank Linda S. Crawley, John R. Dumford, Fritz W. Harding, Mary E. Reyes, and Sandra J. Walker for their research assistance. In addition, I gratefully acknowledge the summer research grant provided by Southern Methodist University. 1. The term "mortgage" as used in this Article is intended to encom- pass mortgages, deeds of trust and other similar instruments used in the various states to create an interest in real estate to secure a loan. The terms "borrower' and "lender' will generally be used rather than the traditional terms "mortgagor and "mortgagee," and in the bankruptcy context the borrower may be referred to as the "debtor" or "debtor in possession." With regard to pronouns, the lender will be referred to as "it" since most commercial real estate loans are made by institutional lenders, and the borrower will be referred to as "he" although most com- mercial real estate developers own property and borrow through entities. 2. Shopping centers, office buildings, and apartment complexes are typical examples of income-producing properties that generate rents be- cause these types of improvements are occupied by tenants who pay rent to the landlord pursuant to a lease. Other types of income-producing real property, including hotels, parking lots, student dormitories, and nursing homes, do not involve a landlord/tenant relationship in its strict sense and raise special issues which are not within the primary scope of this Article. See infra note 271 and accompanying text. 349 350 RUTGERS LAW REVIEW [Vol.46:349 the security for the loan. During the term of a loan secured by an income-producing property, the interests of both borrower and lender are usually best served by the use of rents to pay costs of operation and maintenance of the property and inter- est on and principal of the loan. In the event of a default, the interests of the borrower and the lender may become antago- nistic with regard to the use of rents accruing from the proper- ty. The borrower, facing the possibility of losing the property by foreclosure sale, may find it to his advantage to "milk" the property of its rents by applying rents for purposes unrelated to the property or the mortgage loan.' The lender's interest, on the other hand, is best served if rents collected during the time period between default and foreclosure continue to be applied to operation, maintenance, and loan payments. Therefore, the lender will typically require the borrower at the time of the closing of the loan to execute an assignment of rents' which the lender hopes will give it the ability to control rents from the mortgaged property in the event of a default.5 3. The borrower may use the rents to benefit other properties he owns, to build a "war chest" of funds to pay fees involved in a bankrupt- cy filing or protracted litigation with the lender, or simply to line his pockets. 4. "Assignment of rents" is the most commonly used name for the instrument or mortgage provision by which a lender attempts to take a security interest in rents, and the author will use the term "assignment of rents" in discussing current law. The author will use the term "securi- ty interest" in discussing proposed changes in the law because of the widespread understanding of that term as used in the Uniform Commer- cial Code. Whether a mortgage lender's interest in rents is described as a security interest, a pledge, a mortgage, an assignment, or an absolute as- signment, it is in fact an interest granted for the purpose of providing security for the loan. See infra notes 109-13 and accompanying text. 5. Loan documents may also contain restrictions on the ability of the borrower to enter into, modify, or terminate leases or accept prepayments of rent without the consent of the lender. Furthermore, the documents may require that rents collected by the borrower be applied to payment of expenses of operation and maintenance of the property and payment of amounts due the lender. Finally, tenants may be required to acknowledge the assignment of rents and the restrictions on modification or termina- tion of leases or on prepayments of rent. Where a loan is nonrecourse with no personal liability for repayment imposed upon the borrower, the lender is particularly interested in the disposition of rents of the proper- ty, and the application of rents for purposes other than operation, main- 1993] RENTS AS SECURITY 351 While the antagonistic positions of the borrower and lender in the event of default are not surprising, what is noteworthy is the confusion surrounding the law which relates to assign- ments of rents." In many cases the rules governing assign- ments of rents are based on ancient real property concepts, and the policies behind the rules bear very little relation to the realities of the modern commercial real estate loan. Further- more, there is a wide variation in treatment of the assignment of rents among jurisdictions,' with some jurisdictions honoring the contractual terms of the agreement between borrower and lender,8 and other jurisdictions imposing onerous restrictions on the enforcement of the agreement despite its contractual terms.9 Both the Uniform Land Security Interest Act (ULSIA) tenance, or payment of the loan may be an exception to the nonrecourse status of the loan. 6. See RESTATEMENT (THIRD) OF PROPERTY-SECURITY (MORTGAGES), Reporters' Memorandum § 4.2 (Tentative Draft No. 2, 1992). 7. Not only is there lack of uniformity in state law governing assign- ments of rents, but real estate mortgage law in general is an area in which there is little uniformity among states. See U.L.S.IA, Prefatory Note, 7A U.L.A. 188 (Supp. 1993). An argument can be made that there is no need for uniformity in the area of land transactions because land cannot be moved from state to state. See U.L.S.IA. § 102 cmt. 1, 7A U.L.A. 194 (Supp. 1993). However, lenders and developers are more fre- quently entering into transactions in numerous states, and loans secured by real estate are increasingly transferred in the secondary market. See U.L.S.IA., Prefatory Note, 7A U.L.A. 188, 189-90 (Supp. 1993). Lenders making real estate loans on a nationwide basis must use different forms of documentation and hire different attorneys in each state in which they are making loans. The resulting costs are ultimately passed on to bor- rowers in the form of higher interest rates and fees and decreased avail- ability of loans, or on to the consumer in the form of lower interest rates on savings or higher insurance premiums, or on to the taxpayer when the lending institution is taken over by the government. But see Michael H. Schill, Uniformity or Diversity: Residential Real Estate Finance Law in the 1990s and the Implications of Changing Financial Markets, 64 S. CAL. L. REV. 1261 (1991) (making a convincing argument for the continu- ation of diversity in residential real estate finance law). 8. See, e.g., FDIC v. International Property Management, Inc., 929 F.2d 1033, 1038 (5th Cir. 1991); In re Townside Partners, Ltd., 125 B.R. 8, 10 (Bankr. W.D. Va. 1991) (citing Fidelity Bankers Life Ins. Co. v. Williams, 506 F.2d 1242 (4th Cir. 1974)). 9. See, e.g., In re Century Inv. Fund VIII Ltd. Partnership, 937 F.2d 371, 377 (7th Cir. 1991) ("Wisconsin courts have disapproved of [provi- 352 RUTGERS LAW REVIEW [Vol.46:349 and the new Restatement (Third) of Property-Security (Mort- gages) address the issue of rents as security for the mortgage loan, and both would make it easier for a lender to control rents after default."1 However, reform in this area and move- ment towards uniformity among the states have been slow to come. The complexity of the law and lack of uniformity among the states make assignments of rents difficult for practitioners to draft, for borrowers to operate under, for lenders to enforce, and for courts to interpret. Furthermore, this complexity and- lack of uniformity impose unnecessary costs on lenders and make it difficult for lenders to make underwriting decisions on commercial real estate loans. If a lender is unable to take control of rents after default and the borrower misapplies rents, the value of the mortgaged property may be impaired by neglect, and the total indebtedness may increase substantially due to unpaid interest accruing on the loan. Both of these factors increase the likelihood of a deficiency upon foreclo- sure," and if the deficiency is not collected from the borrower, sions giving a lender the right to rents immediately upon default] .... [Riather than allowing the transfer to be self-executing, they have insist- ed that a mortgagee assert its claim by taking an affirmative action to perfect its interests.") (citation omitted); Drummond v. Farm Credit Bank (In re Kurth Ranch), 110 B.R. 501, 506 (Bankr. D. Mont. 1990) ("[U1n Montana, a mortgagee may secure a security interest in the rents from the mortgaged property only by appointment of a receiver, even though ..
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