(a) Transfer without assumption.
(1) The lender must notify Rural Development if the borrower transfers the security property and the transferee does not assume the debt.
(2) Except as described in paragraph (d) of this section, if a security property is transferred with the lender's knowledge without assumption of the debt, Rural Development will void the guarantee.
(b) Transfer with assumption.
(1) The lender must obtain Agency approval before consenting to a transfer with an assumption of the outstanding debt.
(2) Rural Development may approve a transfer with an assumption of the outstanding debt if the following conditions are met:
(i) The transferee must assume the entire outstanding debt and acquire all property securing the guaranteed loan balance; however, the transferor must remain personally liable. The transferor must pay any recapture as a result of interest subsidy granted, if applicable, owed at the time of the transfer and assumption.
(ii) The transferee must meet the eligibility requirements described in subpart D of this part.
(iii) The property must meet the site and dwelling requirements described in subpart E of this part, or be brought to those standards prior to the transfer. Guaranteed loans secured by properties located in areas that have ceased to be rural may be assumed notwithstanding the fact that the property is located in a non-rural area.
(iv) The priority of the existing lien securing the guaranteed loan must be maintained or improved.
(v) Any new rates and terms must not exceed the rates and terms allowed for new loans under this part, and the interest rate must not exceed the interest rate on the initial loan.
(vi) A new guarantee fee, calculated based on the remaining principal balance, must be paid to Rural Development in accordance with § 3555.107(g).
(vii) If additional financing is required to complete the transfer and assumption or to make needed repairs, Rural Development may approve a supplemental guaranteed loan provided adequate security exists.
(viii) The lender must verify and document their permanent file in accordance with subpart C of this part.
(ix) A written request supported by the lender demonstrating the applicant's credit worthiness, income eligibility and underwriting analysis must be submitted to the Agency for approval of a transfer and assumption.
(x) The lender may close the loan in accordance with § 3555.107.
(c) Transfer without approval. If a lender becomes aware that a borrower has transferred a property without approval, the lender must take one of the following actions:
(1) Notify Rural Development and continue the loan without the guarantee; or
(2) Obtain Agency approval for the transfer with assumption; or
(3) Liquidate the guaranteed loan and submit a claim for any loss.
(d) Transfer without triggering the due-on-sale clause.
(1) The following types of transfers do not trigger due-on-sale clauses in security instruments:
(i) A transfer from the borrower to a spouse or children not resulting from the death of the borrower;
(ii) A transfer to a relative, joint tenant, or tenant by the entirety resulting from the death of the borrower;
(iii) A transfer to a spouse or ex-spouse resulting from a divorce decree, legal separation agreement, or property settlement agreement;
(iv) A transfer to a person other than a deceased borrower's spouse who wishes to assume the loan for the benefit of persons who were dependent on the deceased borrower at the time of death, if the dwelling will be occupied by one or more persons who were dependent on the borrower at the time of death, and there is a reasonable prospect of repayment; or
(v) A transfer into an inter vivos trust in which the borrower does not transfer rights of occupancy in the property.
(2) When a transferee obtains a property with a guaranteed loan through a transfer that does not trigger the due-on-sale clause:
(i) The lender will notify Rural Development of the transfer;
(ii) Rural Development will continue with the guarantee, whether or not the transferee assumes the guaranteed loan;
(iii) The transferee may assume the guaranteed loan on the rates and terms contained in the promissory note. If the account is past due at the time an assumption agreement is executed, the loan may be re-amortized to bring the account current;
(iv) The transferee may assume the guaranteed loan under new rates and terms if the transferee applies and is eligible.
(3) Any subsequent transfer of title, except upon the death of the inheritor or between inheritors to consolidate title, will trigger the due-on-sale clause.
[78 FR 73941, Dec. 9, 2013, as amended at 81 FR 6429, Feb. 8, 2016]