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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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The Compliance Agreement
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March 31, 2014

Welcome to the Notary Hotel

Welcome to the Notary Hotel.

Borrower: “Hello, I’d like to file a formal complaint. The notary didn’t come with a complimentary continental breakfast!”
Clerk: “Sorry about that, but breakfast is only from 6am to 9am weekdays and from 7am to 10am on weekends.”
Borrower: “Also, the notary didn’t sanitize my thumb after thumb printing me!”
Clerk: “Oh, really, I’ll have to write that notary up!”
Borrower: “Aren’t I supposed to get a mint on the top of my loan document stack?”
Clerk: “Hmm, that is part of the Notary Hotel’s branding. I’m really sorry about that.”
Borrower: “Also, the Notary didn’t observe the don’t disturb sign while I was reading the Settlement Statement!”
Clerk: “Oh brother, it’s time we fire that Notary!”
Borrower: “I asked the Notary to give my wife a wake up call when the signing was finished. She fell asleep halfway through the Affidavit of Occupancy.”
Clerk: “It is safe to assume that the Notary failed to give you your complimentary wake up call. Tell me, was there anything good about your signing?”
Borrower: “Well, the Notary gave me some lemongrass moisturizer and a shower cap! I enjoyed those.”
Clerk: “So, there is a silver lining on the cloud next to every shower-head!”
Borrower: “The Notary wanted to kick us out three minutes before check out time while I was reading the automatic payment transfer authorization.”
Clerk: “I’ll add that comment to your file.”
Borrower: “At least I was given two hours of free wi-fi during my stay!”

Clerk: “Did you try out our unique cable T.V. system? You can get 328 complimentary channels including — the signing channel!”
Borrower: “You make me feel like I really missed out!”
Clerk: “Next week we’re having a special. Sign a line of credit while you’re in line for Belgian waffles.”
Borrower: “Oh, you’re going to make waffles for us?”
Clerk: “Not exactly, you stand in line so you can make them yourself. When you think about it, we should be paying you to stay here and stand in line so many times. You stand in line to check in, check out, use the shower for the “equity pool,” and also to make waffles! We’re going to have to do something about those lines!”
Borrower: “You’ve got a point there!”
Clerk: “I’m sorry you had a negative experience. To make it up to you, next time you stay with us, we’ll let you upgrade at no cost to one of our signature rooms, if one is available at the time of your stay!”
Borrower: “If a signature room is not available, I’ll assume that you’ll give me an upgrade to an ‘initial’ room, a condensed version of the same thing?”
Clerk: “Actually, I never thought of that, but we do have digital signature rooms that are also often available. Instead of having a key to the room, you get a password. The welcome mat is a huge signature scanning pad — you’ll love it. Digital Signature rooms come with virtual windows with views of anyplace in the world. The cable T.V. is also very different. Instead of paper-view, it comes with paperless-view because it’s digital.

Borrower: “The other thing that I didn’t understand is that my room key was in the shape of a stamp. Instead of swiping it in a reader like other hotels, I had to affix a digital stamp of my seal on what looked like a scanner. Very perplexing. My notary seal digital key also had commission room number 314 an expiration date of 11am the next morning. I guess that is check out time.”
Clerk: “Well, we like to maintain a notary theme at all times. After all, this is the Notary Hotel. Just thank god we don’t have eight digit commission room numbers on the digital seal!”

For those of you who want to visit the Notary Hotel, we have all the amenities. Swimming “equity pools”, business centers, tennis, movies, and of course an endless supply of complimentary blue pens. All you have to do is fax us an order confirmation and sign in once you arrive! Some people stay here their entire commissions!

Tweets:
(1) The Notary Hotel: Does my notarization come w/a wake up call?
(2) The Notary Hotel is so comfortable, some notaries stay there their entire commission.
(3) Their signing took place at The Notary Hotel & the wife requested a wakeup call after the signing was done.
(4) At The Notary Hotel: they didn’t observe the don’t disturb sign while I was reading the Settlement Statement!
(5) At The Notary Hotel, Showtime & HBO are free, but the Signing Channel costs $40 (not including fax backs)
(6) Check out the digital signature rooms at The Notary Hotel

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Notary Hotel 2 — the sequel
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