§ 765.351 Requirements to obtain Agency consent. Cross Reference
Link to an amendment published at 89 FR 65043 , Aug. 8, 2024.
The borrower must obtain prior consent from the Agency for any transactions affecting the real estate security, including, but not limited to, sale or exchange of security, a right-of-way across security, and a partial release. The Agency may consent to such transactions provided the conditions in this section are met. ( a ) *General.* The following conditions apply to all transactions affecting real estate: ( 1 ) The transaction will enhance the objectives for which the FLP loan or loans were made;
( 2 ) The transaction will not jeopardize the borrower's ability to repay the FLP loan, or is necessary to place the borrower's farming operation on a sound basis;
( 3 ) Except for releases in paragraph (f) of this section, the amount received by the borrower for the security being disposed of, or the rights being granted, is not less than the market value and will be remitted to the lienholders in the order of lien priority;
( 4 ) The transaction must not interfere with the borrower's farming operation;
( 5 ) The market value of the remaining security is adequate to secure the FLP loans, or if the market value of the security before the transaction was inadequate to fully secure the FLP loans, the Agency's equity in the security is not diminished;
( 6 ) The environmental requirements of part 799 of this chapter must be met;
( 7 ) The borrower cannot graduate to other credit on any program except for CL;
( 8 ) The borrower must not be ineligible due to disqualification resulting from Federal crop insurance violation according to 7 CFR part 718; and
( 9 ) The disposition of real estate security for an outstanding ST loan will only be authorized if the transaction will result in full repayment of the loan.
( b ) *Sale of timber, gravel, oil, gas, coal, or other minerals.* ( 1 ) Agency security instruments require that the borrower request and receive written consent from the Agency prior to certain transactions, including, but not limited to, cutting, removal, or lease of timber, gravel, oil, gas, coal, or other minerals, except small amounts used by the borrower for ordinary household purposes. ( i ) The sale of timber from real estate that secures an FLP loan will be considered a disposition of a portion of the security.
( ii ) When the Agency has a security interest in oil, gas, or other minerals as provided by § 765.252(b), the sale of such products will be considered a disposition of a portion of the security by the Agency.
( 2 ) Any compensation the borrower may receive for damages to the surface of the real estate security resulting from exploration for, or recovery of, minerals must be assigned to the Agency. Such proceeds will be used to repair the damage, and any remaining funds must be remitted to lienholders in the order of lien priority or, with all lienholders' consent, used for an authorized loan purpose.
( c ) *Exchange of security property.* ( 1 ) When an exchange of security results in a balance owing to the borrower, the proceeds must be used in accordance with § 765.352.
( 2 ) Property acquired by the borrower must meet program objectives, purposes and limitations relating to the type of loan involved as well as applicable requirements for appraisal, title clearance and security.
( d ) *Sale under contract for deed.* A borrower may sell a portion of the security for not less than its market value under a contract for deed subject to the following: ( 1 ) Not less than 10 percent of the purchase price will be paid as a down payment and remitted to lienholders in the order of lien priority;
( 2 ) Payments will not exceed 10 annual installments of principal plus interest or the remaining term of the FLP loan, whichever is less. The interest rate will be the current rate being charged on a regular FO loan plus 1 percent or the rate on the borrower's notes, whichever is greater. Payments may be in equal or unequal installments with a balloon final installment;
( 3 ) The Agency's security rights, including the right to foreclose on either the portion being sold or retained, will not be impaired;
( 4 ) Any subsequent payments must be assigned to the lienholders and remitted in order of lien priority, or with lienholder's approval, used in accordance with § 765.352;
( 5 ) The mortgage on the property sold will not be released prior to either full payment of the borrower's account or receipt of the full amount of sale proceeds;
( 6 ) The sale proceeds applied to the borrower's loan accounts will not relieve the borrower from obligations under the terms of the note or other agreements approved by the Agency;
( 7 ) All other requirements of this section are met.
( e ) *Transfer of allotments.* ( 1 ) The Agency will not approve any crop allotment lease that will adversely affect its security interest.
( 2 ) The sale of an allotment must comply with all conditions of this subpart.
( 3 ) The borrower may transfer crop allotments to another farm owned or controlled by the borrower. Such transfer will be treated as a lease under § 765.252.
( f ) *Release without compensation.* Real estate security may be released by FSA without compensation when the requirements of paragraph (a) of this section, except paragraph (a)(3) of this section, are met, and: ( 1 ) The borrower has not received primary loan servicing or Disaster Set-Aside within the last 3 years;
( 2 ) The security is: ( i ) To be retained by the borrower and used as collateral for other credit, including partial graduation as specified in § 765.101; or
( ii ) No more than 10 acres, or the minimum size that meets all State and local requirements for a division into a separate legal lot, whichever is greater, and is transferred without compensation to a person who is related to the borrower by blood or marriage.
( 3 ) The property released will not interfere with access to or operation of the remaining farm;
( 4 ) Essential buildings and facilities will not be released if they reduce the utility or marketability of the remaining property;
( 5 ) Any issues arising due to legal descriptions, surveys, environmental concerns, utilities are the borrower's responsibility and no costs or fees will be paid by FSA;
( 6 ) The security margin on each FLP direct loan will be above 150 percent after the release. The value of the retained security will normally be based on appraisals obtained as specified in § 761.7 of this chapter; however, well documented recent sales of similar properties can be used if the Agency determines the criteria have been met and a sound decision can be made without current appraisals;
( 7 ) The release is approved by the FSA State Executive Director; and
( 8 ) Except for CL, the borrower is unable to fully graduate as specified in § 765.101.
[72 FR 63309, Nov. 8, 2007, as amended at 75 FR 54016, Sept. 3, 2010; 78 FR 65531, Nov. 1, 2013; 81 FR 51284, Aug. 3, 2016; 86 FR 43392, Aug. 9, 2021]