Land Trusts for the Real Estate Investor

Joseph B Barnes III

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Real Estate Attorney

Contributor Level 8

Posted over 1 year ago. 2 helpful votes

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I recently received an Ad concerning the 7 reasons to use a Land Trust from a real estate site. A land trust is a revocable, living trust used specifically for holding title to real estate and can be a powerful tool for holding investment real estate. The land trust is a very powerful tool for the savvy real estate investor. Each property is titled in a separate trust, affording maximum privacy and protection. As a “revocable" trust, it is not a perfect Asset protection vehicle because it is still subject to seizure upon judgment against the person with the power to revoke. But there are benefits. I agree with 6 out of the seven (see the last).

1. Privacy. Privacy is extremely important to most people but anyone with an internet connection can look up your ownership of real estate. Land Trust ownership may make it harder for someone suing you or even city code enforcement to find who the owner is, since the trust agreement is not a public record.

2. Protection from Liens. Real estate titled in a trust name is not subject to liens against the beneficiary of the trust. Personal judgments or liens of the seller may not attach to the property effectively separating the owner or seller from the property.

3. Protection from Title Claims. If you sign a warranty deed in your own name, you are subject to potential title claims against you if there is a problem with title to the property (Indian Claims in CT for example). You warrant and agree to Defend the title in a warranty Deed. A land trust as seller will protect you personally against many types of title claims because the claim will be limited to the trust. If the trust already sold the property, well, no assets either!

4. Discouraging Litigation. People tend to only sue those who appear to have money. Attorneys who work on contingency need to collect. If your investment properties are hard to find, you will appear less worthy of suing

5. Protection from HOA Claims. When you take title to a property in a homeowner’s association (HOA), you become personally liable for all dues and assessments. With a condo in your own name the association can lien the property and/or sue you PERSONALLY! With a land trust, the trust is the sole recourse for the homeowner’s association’s assessments and debts.

6. Making Contracts Assignable. The ownership of a land trust (called the "beneficial interest") is assignable, similar to the way stock in a corporation is assignable. Once property is titled in trust, the beneficiary of the trust can be changed without changing title to the property. This can be very advantageous in the case of a real estate contract that is non-assignable, such as in the case of a bank-owned or HUD property. Instead of making your offer in your own name, make the offer in the name of a land trust, then assign your interest in the land trust to a third party. BUT There is always the danger of being charged with a conspiracy to defraud, especially if this becomes a regular practice

ANDbe very careful about this one!!!!

7. Making Loans "Assumable". A non-assumable loan can become effectively assumed by using a land trust. The seller transfers title into a land trust, with himself as a beneficiary. This transfer usually does not trigger the due-on-sale clause of the mortgage. After the fact, he transfers his beneficial interest to you. This latter transaction does trigger the due-on-sale, but such transfer does not come to the attention of the lender because it is not recorded anywhere in public records. This effectively makes a non-assumable loan "assumable". CAREFUL!!! THIS CAN BE, at least, CLOSE TO (bank) FRAUD, also, if you are the seller of a property with a mortgage, remember YOU SIGNED THE NOTE. If the buyer, your assignee, takes out a big 2nd mortgage or insurance policy and the house “accidentally" burns down; he goes to Brazil while the bank sues you on the note.

There you have it, Real estate trusts can be very useful if you know their limits. An Irrevocable trust such as to your Family Limited Partnership can be even more effective from an asset protection viewpoint.

Additional Resources

Questions? Contact me at the themilfordattorney.com, Call from a fre consult in person or over the phone.

Attorney Joseph B. Barnes

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