White Paper – Leasing and Seller Financing 6
of owning the property can be covered by a tenant who, because of the possibility of owning the
property in the future, is motivated to maintain it.
However, this type of agreement also presents risks for both parties. The owner, by granting the
tenant the option to purchase, may lose the opportunity to sell the property for a higher price to
another purchaser. Moreover, as with any lease, the owner has obligations under the Ohio
Landlord Tenant Act and faces the risk that the tenant may damage the property and/or breach
the terms of the lease. For this reason, the lease option agreement should clearly address whether
such a breach will terminate the tenant’s option to purchase.
As stated in Section Two, the owner should also determine whether such a lease option violates
the terms of their mortgage or could have unintended tax consequences.
For the tenant, the ability to exercise the option may be jeopardized by the owner’s financial
soundness. An owner in financial trouble may file bankruptcy or the owner’s lender may initiate a
foreclosure action, nullifying the tenant’s ability to purchase the property. It is also possible that
tax and other liens could be placed on the property during the lease that will impede the future
sale of the property to the tenant.
The Lease Option Agreement
This type of arrangement involves an agreement between the parties as to the terms of three
separate transactions: a lease, an option and a purchase contract if the option is exercised. The
terms of these three transactions can be included in one fairly lengthy document or separate
documents could be executed (i.e., a lease and a separate option to purchase).
Like a purchase agreement, an option must be supported by consideration, generally referred to
as an option fee. Under the terms of an option agreement, such a fee is generally non-refundable,
but could be applied to the purchase price if the option is exercised. The option agreement should
also spell out the length of the option, the manner in which it is to be exercised, and whether it is
assignable.
To assure that there is a clear understanding of the terms on which the tenant will purchase the
property if the option is exercised, it is crucial that the agreement be specific and not just address
the sales price. Rather it should spell out the typical terms included in a purchase contract
(earnest money, financing, inspections, closing date, etc.). The option agreement should also
address whether all or a portion of the rental payments and/or security deposit will be credited
toward the purchase price if the option is exercised.
Because there are different ways to structure a lease with an option to purchase agreement, it is
recommended that the parties be referred to an attorney to draft this agreement and to provide
legal advice. (A worksheet identifying some of the basic terms the attorney will need to draft this
agreement is attached at the end of this White Paper labeled “Option to Purchase Contract
Worksheet .”)