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November 4, 2014

The Affidavit of Occupancy

An affidavit of occupancy is a simple document (sometimes notarized), that offers the borrower generally three choices. The first option (generally by making initials) is to have the property as a Primary Residence. This option typically requires the borrower to occupy the property, usually within 60 days; for a minimum of one year. The second option is to acquire the property as a second home, while maintaining a primary residence elsewhere. The third major option is to declare the property as Investment Property, not to be occupied by the borrower; but to sell or rent for rental income. It is unlikely that the borrower cannot accurately choose the correct option.

Care should be taken by the borrower to initial the correct choice. The wrong choice can result in financial and even criminal penalties at a later date. If the borrower is buying to live in, there is really no issue. However, when the intent is speculation or rental; it’s accurate disclosure or risk problems. Lower Mortgage Rates are available for owner occupied. This is why the intent to rent or speculate must be disclosed.

Affidavits of occupancy are especially relevant for small-time or independent real estate investors. If a borrower were to select “investment property” then choose to move in permanently – there probably would be no problem. Of course they would be paying a higher mortgage rate, lenders are rarely annoyed by such activity. It is the reverse, claiming to move in; getting a lower mortgage rate, then renting it out that causes problems.

Since affidavits of occupancy are not heavily regulated or governed by formal, industry-wide guidelines, they’re often originated in-house by the mortgage lenders or other real estate professionals. Thus, unlike the standardized HUD, there really is no uniform structure to the Affidavit of Occupancy. Actually it might just as well be called an Occupancy Certification, or similar. The only aspect that seems to appear with regularity is the need for the borrower to specify how they intend to utilize the property. This is generally done by initialing a specific paragraph, but some variations may call for a complete signature.

This form is a redundancy to similar assurances that appear in the Mortgage, namely, how the borrower intends to utilize the property that secures the loan. The occupancy statement contains strong language, 30 years in prison, fine of a million dollars, etc., per Title 18 US code Sec. 1001, and others. They are a separate document that the borrower cannot ignore, often notarized; and help the lender to charge a higher rate for loans that have greater risk. Typically, rental or investment property has greater risk. The difference can be half a percent that will be several thousand dollars or more over the life of the agreement.

They serve as an extra layer of protection against mortgage fraud and provide lenders with a clear chain of evidence that can be used to expose and prosecute such fraud. Whereas a homeowner might be able to make a plausible if unconvincing argument that he or she misunderstood the intent of the “occupancy question” that’s often buried within the structure of a mortgage settlement document, he or she has little chance of avoiding penalties for breaking an affidavit of occupancy. The affiants who “break” these (often) sworn statements risk being charged with mortgage fraud. At the very least the lender can demand full payment of all money due.

In processing this document care should be taken to be sure that all borrowers initial/sign the section that specifies the intended use of the property. Some lenders might require a non-obligor to also sign/initial. It’s probably a safe bet to have any signatory to the document also initial/sign the selection section.

It is the real intent of this document to curb the activities of those who wish to obtain property at a low mortgage rate for speculation or to become “little” landlords. Sometimes it takes years for the housing authorities and the lender to discover the fraud. Those false statements can and do incur harsh civil and criminal penalties. In addition to the mortgage fraud; housing violations are common. The form is simple and easy to understand. There really is nothing for the notary to “explain”. A notarized false statement is exactly that; in addition to being a crime.

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You might also like:

The Signature Name Affidavit
http://blog.123notary.com/?p=16298

Ken’s Guide to Deeds of all types
http://blog.123notary.com/?p=16285

The Compliance Agreement
http://blog.123notary.com/?p=15828

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3 Comments »

  1. Just love the stiff penalties for borrower on occupancy,( 30 yrs in jail and a million fine) if that is true, and how the Certificate of Occupancy with the FBI logo on it tries to be so intimidating, Tnis is the most investigated crime borrowers commit and should be punished, but FBI investigating this is ludicrous in the light of how nothing happened to anyone in the industry who created a worldwide mortgage crisis, but got rewarded with millions in bonuses, paid for by US ALL for doing a lot worse and no one investigating them due to the division of FBI who prosecutes white collar crime was cut to hardly any staff. Passive aggressive response on their part. Many borrowers have commented to me that THEY should have such a document with FBI logo emblazoned on it and addressing how borrowers will investigate lenders for wrongdoing, with a penalty of 20 years in the electric chair before hanging.

    Comment by Dan — November 14, 2014 @ 12:29 pm

  2. Useful post . Coincidentally , if someone needs a Home Affordable Modification Program Non-Borrower Occupancy and Income Certification Form , my company filled a blank form here https://goo.gl/dhpGO0.

    Comment by oren buckmaster — October 18, 2016 @ 7:16 am

  3. Thank you for this information. In Houston we often help businesses with their CO’s and building permits. Always good to see another experience and perspective.

    Comment by Dwayne — July 24, 2018 @ 7:07 am

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