An alienation clause in a mortgage contract gives the lender certain stated rights when there is a transfer of ownership in the property. It may also be referred to as a due on sale clause. This is designed to limit the debtor’s right to transfer property without they creditor’s permission. Depending on the actual wording of the clause, alienation may be triggered by a transfer of title, by transfer of a significant interest in the property, or even by abandonment of the property. Transfer of a significant interest can be construed as an obvious long-term lease, but often is also interpreted to cover a lease with option to buy or a land contract.
On sale or transfer of a significant interest in the property, the lender will often have the right to accelerate the debt, change the interest rate, or charge a hefty assumption fee. Adjustable rate mortgage loans seldom have an alienation clause that calls for an interest rate change since the rate can already be adjusted under the original contract. An ARM loan may have other alienation provisions, however, such as an assumption fee. The lender may choose which, if any, options stated in the contract it chooses to enforce. This is true for most conventional loans. Although FHA and VA loans cannot, technically, have alienation clauses, they still attempt to restrict transfers in other ways, such as by reserving the right to approve a new debtor who will take over an FHA or VA loan.
For conventional loans, states tried to restrict enforcement of due on sale clauses. But in the 1982 landmark U.S. Supreme Court case of Fidelity Savings and Loan v. De La Cuesta, ET. Al., the Court ruled that federally chartered S & Ls could follow federal Office of Thrift Supervision rules allowing due on sale clauses, instead of following state laws that attempted to limit this right. Later that same year, the U.S. Congress passed the Deposit Insurance Flexibility Act extending this right of pre-emption of state laws limiting due on sale clauses so all lenders can now enforce due on sale clauses.
This law has led to a new problem that has yet to be addressed adequately. Lenders often have alienation clauses and prepayment clauses in contract. Essentially, the lender could collect additional fees or penalties twice, once under the provisions of each clause. Several rules or regulations have been proposed that would eliminate this problem by forcing lenders to choose to enforce one or the other of these clauses, but no new rules have yet been enacted. Of course, with increased competition in the home mortgage market, lenders do not have free reign to charge exorbitant fees. It is important, nevertheless, for buyers and sellers (and others) to be aware that this situation may exist.
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