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considered have included:
(1) Whether legal title passes * * *; (2) how the
parties treat the transaction * * *; (3) whether an
equity was acquired in the property * * *; (4) whether
the contract creates a present obligation on the seller
to execute and deliver a deed and a present obligation
on the purchaser to make payments * * *; (5) whether
the right of possession is vested in the purchaser
* * *; (6) which party pays the property taxes * * *;
(7) which party bears the risk of loss or damage to the
property * * *; and (8) which party receives the
profits from the operation and sale of the property
* * *.
Id. at 1237-1238 (citations omitted).
The cluster home and condominium transactions arose not out
of petitioner's seeking a loan, but out of the purchasers' buying
housing units in a retirement community. Petitioner made no
representations to the purchasers, either orally or in writing,
that the transactions were loans or mortgages. Petitioner agreed
to convey in fee simple and the purchasers agreed to purchase the
specified cluster home or condominium for the designated purchase
price. Legal title passed from petitioner to the purchasers, and
the deeds were recorded. The purchasers, then the owners of the
cluster homes or condominiums, took possession of their cluster
homes or condominiums and paid the property taxes, the fire and
liability insurance, and the utility bills for the unit. The
owners received the proceeds of the fire and liability insurance
in the event of a loss. If an owner did not repair a partially
destroyed cluster home or condominium, petitioner would deduct
the repair costs from the repurchase price. While the repurchase
price of a cluster home or condominium was less than its original
sales price, it cannot be said that the original sales price was
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