I'm asking this question because it involves tricky issues and I honestly don't know the answer. I do know that short sales have tax consequences far beyond the immediate transaction. Are these (and the possible legal ramifications down the road) being taken into consideration by Realtors assisting their clients through a short sale?
It appears that the most obvious case for potential danger is when an upside-down property has both a first and second loan (HELOC). Both lenders must be satisfied to conclude the short sale. But how do you handle the following fallout from the transaction:
- The HELOC is a recourse loan. Unless the lender agrees in writing to release the homeowner, they can (and will) sell the loan balance to a bill collection agency who hounds the homeowner for years.
- Even if the HELOC balance is "forgiven" by the lender, the mortgage relief is taxable, and this could result in a substantial bill from the IRS!
- The same is true for cash-out refinances where the money is not used for home upgrades, but rather for college, buying a new car, etc. - it's all taxable.
As real estate agents and mortgage brokers, are you discussing these issues with your clients so that they have a full understanding of subsequent consequences? If so, how are you documenting these briefings to protect yourself against possible legal action when a homeowner realizes that the completed short sale is not the end of his financial nightmare?
I'm wondering about possible ethics violations and the legal pitfalls of stepping outside your area of expertise by discussing - or not mentioning - tax consequences with your clients. It should be addressed with the client, but what is the best way to handles this?