**§36.4253 Title and lien requirements.**

\(a\) The interest in the realty constituting a manufactured home lot
acquired by the veteran wholly or in part with the proceeds of a
guaranteed loan, or in the realty constituting a manufactured home lot
improved wholly or in part with the proceeds of a guaranteed loan, shall
not be less than:

\(1\) A fee simple estate therein, legal or equitable; or

\(2\) A leasehold estate running or renewable at the option of the
lessee for a period of not less than 14 years from the maturity of the
loan, or to any earlier date at which the fee simple title will vest in
the lessee, which is assignable or transferable, if the same be
subjected to the lien; however, a leasehold estate which is not freely
assignable and transferable will be considered an acceptable estate if
it is determined by the Under Secretary for Benefits, or the Director,
Loan Guaranty Service, (i) that such type of leasehold is customary in
the area where the property is located, (ii) that a veteran or veterans
will be prejudiced if the requirement for free assignability is adhered
to and, (iii) that the assignability and other provisions applicable to
the leasehold estate are sufficient to protect the interests of the
veteran and the Government and are otherwise acceptable; or

\(3\) A life estate, provided that the remainder and reversionary
interests are subjected to the lien; or

\(4\) A beneficial interest in a revocable Family Living Trust that
ensures that the veteran, or veteran and spouse, have an equitable life
estate, provided the lien attaches to any remainder interest and the
trust arrangement is valid under State law.

\(b\) Any such property or estate will not fail to comply with the
requirements of paragraph (a) of this section by reason of the
following:

\(1\) Encroachments;

\(2\) Easements;

\(3\) Servitudes;

\(4\) Reservations for water, timber, or subsurface rights;

\(5\) Right in any grantor or cotenant in the chain of title, or a
successor of either, to purchase for cash, which right by the terms
thereof is exercisable only if:

\(i\) An owner elects to sell,

\(ii\) The option price is not less than the price at which the then
owner is willing to sell to another, and

\(iii\) Exercised within 30 days after notice is mailed by certified
mail to the address of optionee last known to the then owner of the then
owner's election to sell, stating the price and the identity of the
proposed vendee;

\(6\) State and local housing agency deed restrictions provided that the
veteran obtained the property under a State or local political
subdivision program designed to assist low- or moderate-income
purchasers, and as a condition the purchaser must agree to one or more
of the following restrictions:

\(i\) If the property is resold within a time period as established by
local law or ordinance, after the purchaser acquires title, the
purchaser must first offer the property to the government housing
agency, or a low- or moderate-income purchaser designated by such
agency, provided the option to purchase is exercised within 90 days
after notice by the purchaser to the agency of intention to sell;

\(ii\) If the property is resold within a time period as established by
local law or ordinance, after the purchaser acquires title, a
governmental agency may specify a maximum price for the property upon
resale; or

\(iii\) Such other restriction approved by the Secretary designed to
insure either that a property acquired under such program again be made
available to low- or moderate-income purchasers, or to prevent a private
purchaser from obtaining a windfall profit on the resale of such
property, while assuring that the purchaser has a reasonable opportunity
to dispose of the property without undue difficulty at a reasonable
price.

The sale price of a property under any of the restrictions of paragraph
(b)(6) of this section shall not be less than the lowest of the
following: The price designated by the owner as the asking price; the
appraised value of the property; or the original purchase price of the
property, increased by a factor reflecting all or a reasonable portion
of the increased costs of housing or the percentage increase in median
income in the area between the date of original purchase and resale,
plus the reasonable value or actual costs of any capital improvements
made by the owner, plus a reasonable real estate commission less the
cost of necessary repairs required to place the property in saleable
condition; or other reasonable formula approved by the Secretary. The
veteran must be fully informed and consent in writing to the deed
restrictions. A copy of the veteran's consent statement must be
forwarded with the application for manufactured home loan guaranty or
the report of a manufactured home loan processed on the automatic basis;
(Authority: 38 U.S.C. 3712(g)).

\(7\) A recorded restriction on title designed to provide housing for
older persons, provided that the restriction is acceptable under the
provisions of the Fair Housing Act, title VIII of the Civil Rights Act
of 1968, as amended by the Fair Housing Amendments Act of 1988, 42
U.S.C. 3601, *et seq.* The veteran must be fully informed and consent in
writing to the restrictions. A copy of the veteran's consent statement
must be forwarded with the application for manufactured home loan
guaranty or the report of a manufactured home loan processed on the
automatic basis; (Authority: 38 U.S.C. 501(a), 3703(c)(1), 3712(g))

\(8\) Building and use restrictions whether or not enforceable by a
reverter clause if there has been no breach of the conditions affording
a right to an exercise of the reverter;

\(9\) Violation of a restriction based on race, color, religion, sex,
handicap, familial status, or national origin, whether or not such
restriction provides for reversion or forfeiture of title or a lien for
liquidated damages in the event of a breach;

\(10\) Any other covenant, condition, restriction, or limitation
approved by the Secretary in the particular case. Such approval shall be
a condition precedent to the guaranty of the loan.

\(c\) The following limitations on the quantum or quality of the estate
or property shall be deemed for the purposes of paragraph (b) of this
section to have been taken into account in the appraisal of the
manufactured home lot and determined by the Secretary as not materially
affecting the reasonable value of such property:

\(1\) *Building or use restrictions.* Provided, (i) no violation exists,
(ii) the proposed use by a veteran does not presage a violation of a
condition affording a right of reverter, and (iii) any right of future
modification contained in the building or use restrictions is not
exercisable, by its own terms, until at least 10 years following the
date of the loan.

\(2\) *Violations of equal opportunity restrictions.* Violations of a
restriction based on race, color, religion, sex, handicap, familial
status or national origin, whether or not such restriction provides for
reversion or forfeiture of title or a lien for liquidated damages in the
event of a breach.

\(3\) *Violations of building or use restrictions of record.* Violations
of building or use restrictions of record which have existed for more
than 1 year, are not the subject of pending or threatened litigation,
and which do not provide for a reversion or termination of title or
condemnation by municipal authorities or a lien for liquidated damages
which may be superior to the lien securing the guaranteed loan.

\(4\) *Easements.*

\(i\) Easements for public utilities along one or more of the property
lines and easements for drainage or irrigation ditches, provided the
exercise of the rights thereof do not interfere with the use of the
manufactured home or improvements located on the subject property.

\(ii\) Mutual easements for joint driveways located partly on the
subject property and partly on adjoining property, provided the
agreement is recorded in the public records.

\(iii\) Easements for underground conduits which are in place and which
do not extend under any buildings in the subject property.

\(5\) *Encroachments.*

\(i\) On the subject property by improvements on the adjoining property
where such encroachments do not exceed 1 foot within the subjects
boundaries, provided such encroachments do not touch any buildings or
interfere with the use or enjoyment of any building or improvement on
the subject property.

\(ii\) By hedges or removable fences belonging to subject or adjoining
property.

\(iii\) Not exceeding 1 foot on adjoining property by driveways
belonging to subject property, provided there exists a clearance of at
least 8 feet between the buildings on the subject property and the
property line affected by the encroachment.

\(6\) *Variations of lot lines.* Variations between the length of the
subject property lines as shown on the plot plan or other exhibits
submitted to the Department of Veterans Affairs and as shown by the
record or possession lines, provided such variations do not interfere
with the current use of any of the improvements on the subject property
including the manufactured home and do not involve a deficiency of more
than 2 percent with respect to the length of the front line or more than
5 percent with respect to the length of any other line.

\(d\) In a combination loan (loan to finance the purchase of a
manufactured home and to finance the purchase of a lot and/or necessary
site preparation) the total indebtedness of the veteran arising from
such combination loan transaction must be secured by a first lien or the
equivalent thereof on the estate of the veteran in the manufactured home
lot, which real estate security interest shall be in addition to the
manufactured home security interest required by §36.4234.

\(e\) Tax liens, special assessment liens, and ground rents shall be
disregarded with respect to any requirement that loans shall be secured
by a lien of specified dignity. With the prior approval of the
Secretary, Under Secretary for Benefits, or Director, Loan Guaranty
Service, liens retained by nongovernmental entities to secure
assessments or charges for municipal type services and facilities
clearly within the public purpose doctrine may be disregarded. In
determining whether a loan for the purchase or improvement of a
manufactured home lot is secured by a first lien the Secretary may also
disregard a superior lien created by a duly recorded covenant running
with the realty in favor of a private entity to secure an obligation to
such entity for the homeowner's share of the costs of the management,
operation, or maintenance of property, services or programs within and
for the benefit of the development or community in which the veteran's
realty is located, if the Secretary determines that the interests of the
veteran-borrower and of the Government will not be prejudiced by the
operation of such covenant. In respect to any such superior lien created
after June 6, 1969, the Secretary's determination must have been made
prior to the recordation of the covenant.

\(f\) In the case of a combination loan or a loan to purchase a lot upon
which a manufactured home owned by the veteran will be placed it shall
be the responsibility of the lender that the veteran initially obtains
or has an estate in the land constituting the manufactured home lot
meeting the requirements of paragraph (a) of this section and to obtain
and retain a security interest thereon meeting the requirements of
paragraph (d) of this section.

\(g\) In the case of a combination loan to purchase a manufactured home
lot and to refinance an existing purchase money loan an a manufactured
home unit which is or will be located on the lot to be purchased, it
shall be the responsibility of the lender to assure that the veteran
obtains or retains an estate in the manufactured home and in the land
meeting the requirements of paragraph (a) of this section and §36.4234.
The lender must also obtain and retain a first lien or the equivalent
thereof on the estate of the veteran in both the manufactured home and
in the lot on which the manufactured home is located. (Authority: 38
U.S.C. 501(a), 3703(c), and 3712 (a)(1)(G), (e)(3) and (g))

\[36 FR 3368, Feb. 23, 1971, as amended at 45 FR 55720, Aug. 21, 1980;
47 FR 49393, Nov. 1, 1982; 48 FR 40231, Sept. 9, 1983; 49 FR 22081, May
25, 1984; 55 FR 25976, June 26, 1990; 58 FR 37860, July 14, 1993; 61 FR
28058, June 4, 1996\]

**Supplement *Highlights* references**: 5(2k), 15(1).