Defeasance

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  • Post last modified:December 9, 2023
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Defeasance, in financial and legal terms, refers to the act of rendering something null and void, often through the provision of a substitute or replacement. The term is commonly used in the context of loans and securities, particularly in the process of defeasance in real estate finance.

Key aspects of defeasance include:

1. **Defeasance in Real Estate Finance:**
– In real estate finance, defeasance typically refers to the process of releasing a property from the lien of a mortgage. This is often done by substituting collateral in the form of government securities (usually U.S. Treasuries) in place of the original property. The purpose is to remove the encumbrance of the mortgage while still providing the lender with a substitute form of security.

2. **Collateral Substitution:**
– The borrower arranges for the purchase of a portfolio of government securities with cash or other funds. These securities are then placed in a trust that is dedicated to servicing the remaining debt obligations under the mortgage. The income generated from the securities is used to make principal and interest payments on the loan.

3. **Legal Release of Lien:**
– Once the collateral substitution is complete, and the trust is established, the borrower can petition for the legal release of the mortgage lien on the property. This process effectively eliminates the mortgage from the public records, freeing the property from the encumbrance.

4. **Purpose of Defeasance:**
– Defeasance is often used in situations where a property owner wishes to sell or refinance a property but does not want to be encumbered by the existing mortgage. By providing a substitute form of collateral, the property can be released from the mortgage without triggering a prepayment penalty.

5. **Prepayment Penalty Considerations:**
– Commercial mortgages often come with prepayment penalties or “lock-out” periods during which the borrower is restricted from paying off the loan early. Defeasance provides a way to release the property from the mortgage without violating these prepayment terms.

6. **Structured Transactions:**
– The process of defeasance involves a series of structured transactions and legal agreements. These may include the establishment of a defeasance trust, the purchase of government securities, and coordination with legal and financial professionals to ensure compliance with the terms of the mortgage agreement.

7. **Legal and Financial Implications:**
– Defeasance transactions have legal and financial implications for both the borrower and the lender. Legal professionals are often involved in drafting the necessary documents, and financial professionals may assist in structuring the defeasance to optimize cash flow and minimize tax consequences.

8. **IRS Requirements:**
– The Internal Revenue Service (IRS) has specific requirements and guidelines for defeasance transactions, particularly with regard to the type of securities that can be used for collateral substitution. Compliance with these requirements is essential to maintain the tax status of the transaction.

Defeasance is a complex financial and legal process that requires careful planning and execution. It provides a mechanism for property owners to release their properties from mortgage encumbrances while adhering to contractual obligations and legal requirements.