Land Trusts

WHY USE LAND TRUSTS FOR PROTECTION AND PRIVACY?

This Special Report will explain the creation and uses of land trusts to provide you with the privacy and protection you deserve.

Let's take a close look at our world today. Everyday, thousands of lawsuits are filed in courts across the country. People are suing for anything their lawyers can create. Lawyers advertise on television to encourage people to pursue their dreams of getting rich quick. These people do not want or intend to work to get rich, however. They want to get their money the old fashioned way - by taking it from you by whatever means necessary. The "have nots" dream of getting rich by taking from the "haves." The "haves" feel like targets with everyone taking potshots at them.

Real estate investors are particularly vulnerable for two reasons. The first is that the real estate ownership is shown in the public records for anyone to find. The second is that any judgment against you immediately becomes a lien against all your real estate. What this means is that any lawsuit against you could potentially result in all your real estate being encumbered by a resulting judgment. This judgment will lien your properties until you either pay it off or win a later appeal. You will not be able to sell or mortgage your property until you pay the judgment in full.

A judgment of any size will tie up all your real estate until you deal with the judgment. If you appeal the decision, the judgment will still lien the property. If you still lose after taking all available legal action, then you must pay off the judgment. If you do not pay off the judgment, the judgment holder or creditor can execute on the judgment. This will give him the right to sell off your real estate as he chooses. When these sales occur at auction, the property will not be sold for fair market value. When you purchase property at a distress sale or a judicial sale, you would not pay fair market value. You would only pay 50% to 70% of the fair market value. When the creditor is in a position to force the sale of your property, you will lose property after property until the creditor collects all his money. You might have $500,000 in equity in your real estate, but a judgment for $100,000 could result in you being wiped out.

BY OWNING REAL ESTATE IN YOUR NAME, YOU GIVE UP CONTROL OF YOUR ASSETS AND YOU RISK LOSING EVERYTHING.

What's the answer? Should you own your real estate in a corporation? On the surface, this seems to be a logical response, but it doesn't really solve your problem. Your greatest risk of being sued comes from owning real estate. If the corporation, as the owner of the real estate, is sued, the resulting judgments will lien all the real estate. You have gained nothing. Any other type of ownership will continue the same problem.

The only way to protect your real estate is to separate the ownership of the properties. Each property should be owned by a separate entity. If you use corporations, for example, you would use a different corporation to own each piece of real estate. This would be a terrific way of protecting other properties from a problem occurring at one property. The problem here is the enormous cost. You would have the initial cost of forming these corporations. You would have the continuing expense of annual accounting fees and state corporation taxes. The annual cost would be at least $500 in most states. If you owned ten properties, you would be paying $5,000 per year for this protection.

What you need is a manner of ownership that provides for separate ownership of each property, gives you the protection you desire, but doesn't have all the costs and complications discussed above. What you need is to own each property in a separate land trust.

To create a land trust, you enter into a land trust agreement with a trustee you choose. You will then deed the property into the trust. In the trust agreement, you will designate a name for the trust. You can use numbers, the street address or any other name you desire. I generally use the street name to minimize any confusion over which trust owns which property. For example, I would place the property at 123 Main Street into the 123 Main Street Land Trust and the property at 245 Park Place into the 245 Park Place Land Trust.

By transferring each property (by recorded deed) into a separately named land trust, you have separated the ownership of the each property. You always have only one property in each land trust.

Let's examine what happens now when a tenant sues the landlord (property owner). The tenant files suit against the 123 Main Street Land Trust since that is the name on her lease agreement. She obtains a judgment that becomes a lien against only the 123 Main Street Land Trust and any properties (only one) which it owns. She can only collect from the trust. She only has a lien against one property. The other properties are in the names of the other land trusts so a judgment against the 123 Main Street Land Trust will not lien them. You are free to sell or mortgage your other property without being forced to pay the judgment. You are now in control of your property. Now that you own real estate in separate land trusts, you are in control of your property. Wouldn't you rather be in control?

If you are sued personally for an alleged problem and lose, a judgment will be entered against you. This judgment, however, will not become a lien on any real estate because you do not own any real estate in your name. If you personally owned the real estate, this judgment would lien all your property. The land trust gains you a tremendous layer of protection from lawsuits, judgments and the resulting loss of control.

THE LAND TRUST WILL MAKE YOUR REAL ESTATE OWNERSHIP YOUR PRIVATE BUSINESS.

The land trust agreement is not recorded. Only the deed is recorded. Since the property is not titled in your name, only you and the trustee know that you own it. The trust contains a provision explicitly preventing the trustee from disclosing your ownership.

Why is privacy important? The answer is based on this logic: if a person who wants to sue you cannot find any assets, he probably isn't going to sue. His attorney will not take a contingency case unless the attorney is going to get paid. The attorney doesn't get paid if he wins. The attorney only gets paid if he collects money from you. Attorneys don't line up to sue poor people. They fight for the right to sue people with assets, especially easily accessible assets like real estate. If you own real estate in your own name, you are almost begging to be sued. In some cities, such as Buffalo, unscrupulous people publish lists of landlords and divulge such things as the number of properties, the number of units and the total value of real estate owned.

If I asked you to tell me how much money you earned, or how much money you had in the bank, you would tell me, "It's none of your business!" Yet, you have allowed your real estate holdings to be available for the entire world to see. Isn't it time to stop allowing everyone know your private business?

THE LAND TRUST WILL ALLOW YOU TO ASSUME AND OBTAIN MORTGAGE LOANS WITHOUT ANY PERSONAL LIABILITY.

When you are purchasing a property and assuming an FHA or VA no-qualifying loan, you have previously personally signed the note to the bank agreeing to be responsible for the loan. When you use a land trust to purchase the property, the trustee signs the note to the lender, not you. The trustee signs on behalf of the trust, not personally, so he is not responsible for any payments. You haven't signed anything or even given your name so you aren't responsible for anything. The bank can't report the loan on your credit report. The bank can't sue you if you fail or a subsequent purchaser fails to pay the loan. The bank can foreclose, but you won’t ever be named.

A similar scenario exists when you purchase a property with seller financing. When the seller is holding a mortgage, you want to avoid two things: personal liability and a due on sale clause in the mortgage. At the closing, the trustee executes the mortgage and note on behalf of the trust which is the purchaser of the property. The trustee is not personally liable. You haven't signed anything so you can't be held liable.

If the mortgage doesn't have a due on sale clause, you now have created assumable financing. The seller has no say about who purchases the property. You don't have to worry about the purchaser making the mortgage payments because you are not responsible, only the land trust has agreed to make the payments. In the event of a default, the seller's sole remedy is to foreclose on the property. This is a great way to buy and easily sell real estate for a substantial profit with no worry about the deal "blowing up" on you in the future. You can more easily sell real estate with no-qualifying assumable loans than any other type of real estate.

Wouldn't you rather have a land trust liable for making mortgage payments and not you personally? Wouldn't you like to be able to sell a property without worrying about something going wrong in the future?

Let me take a few moments now to quickly show you how land trusts are created. The land trust is a particular type of living, or inter vivos, trust which means this trust is created and used while you are living. You create a land trust by signing a land trust agreement between you and the trustee, and deeding the property to the trust. The land trust agreement details the rights and responsibilities of the trustee and you as the beneficiary. The land trust always remains a revocable trust, which means you can terminate or amend the trust whenever you choose to do so.

The trustee can be anyone you trust. The trustee can be a family member, a friend, a lawyer, or anyone else. The trustee's main responsibility is to hold the title to the property until you direct him to transfer the property. The trust agreement and deed to the trust provide the trustee with the necessary authority to act in whatever manner necessary on behalf of the trust. The trustee is prohibited from acting, however, except upon your specific written instructions.

When you want the trustee to take some action, such as deed the property to a new buyer, you simply direct him in writing to do so.

The trustee is not personally liable for any action he takes on behalf of the trust. You have the right to fire the trustee if you ever desire to do so. The trustee can resign. In either case, or if the trustee dies, you have the right to appoint a new trustee of your choosing.

The land trust also provides for the beneficiary. You are the beneficiary. As the beneficiary, you have the right to direct the trustee how to deal with the title to the property, you have the right to manage and control the property, and you have the right to receive all the income and tax benefits of the property. As the beneficiary, you own the trust, which owns the real estate.

The land trust does not require a separate tax return or a separate tax identification number. The trust is "transparent" to the taxing authorities. The beneficiary of the land trust reports the income and expenses on his tax return just as if the trust did not exist. If a corporation was the beneficiary of the land trust, the corporation would report the property's income and expenses on its tax return. If you transfer your currently owned property to a land trust, no tax event occurs. Your basis and tax reporting remain the same. Your ownership of real estate in a land trust does not affect your ability to accomplish tax deferred exchanges or, in most states, to get your homestead exemption.

Anyone or any entity can be the beneficiary of the land trust, including persons, corporations, partnerships, limited partnerships, limited liability companies and other trusts such as a living trust. Your living trust should never own real estate directly. A lawsuit arising from an incident on a parcel of real estate could lead to your living trust, which contains all your assets, being sued and result in you losing everything. Instead, your real estate should be owned in separate land trusts and those land trusts should be owned by your living trust.

You can transfer your currently owned real estate into land trusts and immediately gain protection and privacy. In most states, no transfer taxes are due on the transfer of a property from you into a trust owned by you. As soon as you record the deed, the property is owned by the trust. Your protection begins immediately. Any judgment entered after the recording date can't become a lien unless it is against the trust, which owns the property.

An obvious concern when you transfer your existing property into a land trust is the due on sale clause in your mortgage to the bank. Federal law provides an exception to the due on sale clause for the transfer of your property into a land trust as long as the real ownership of the property doesn't change. You can transfer your property into a land trust and the bank can't call the mortgage due. The bank still maintains its lien position and can foreclose if you fail to pay.

You can assign your beneficial interest in the land trust without recording a deed. This transfer of beneficial interest is accomplished by using an Assignment of Beneficial Interest which, when signed by you, changes the ownership of the trust to whomever you choose. This transfer is effectively a sale of the real estate owned by the trust and should be reported on your tax return. When the beneficial interest is transferred to a purchaser, nothing is recorded so there is no public knowledge of the purchaser. This purchase is made in complete privacy. Likewise, no one is aware of the sale by the former owner.

LAND TRUSTS ALLOW YOU TO "BEAT" THE DUE-ON-SALE CLAUSE.

Since a person has the right under federal law to transfer his real estate into a land trust without violating the due on sale clause and he can transfer his beneficial interest to a purchaser without recording anything, that person can sell his property subject to the mortgage without the bank finding out about the sale. This transfer does violate the due-on-sale clause, but the bank rarely discovers the sale because the bank isn't diligently checking to see if the property was sold. The bank simply keeps track of the mortgage payments coming in. The seller is still personally liable for the mortgage. In the event any payments are missed, the seller's credit will suffer. If the bank foreclosed on the property, the buyer wouldn’t be named in the lawsuit and wouldn’t be personally liable for the loan.

You would rarely choose to sell your property in this fashion. This is a great way to buy property, however. Many desperate sellers are trapped in properties encumbered by conventional mortgages. A common scenario goes like this: the seller owns a house worth $50,000. He owes $32,000 on his first and only mortgage. He hasn't worked in 6 months and he is now 4 months ($2,000) behind on his mortgage payments. Like many people in his situation, he has not really attempted to sell his house before talking to you. The seller is concerned with two things and two things only. The first is the $1,000 he needs to be able to move to Texas where he has been promised a job. The second is the damage being done to his credit. He knows he will have a lot of trouble ever getting a new mortgage if he allows the bank to foreclose on his current mortgage.

Most people would discover this seller with his conventional mortgage and do nothing. You are now armed with superior knowledge and the ability to make a deal which benefits you and the seller. The deal is simple. You agree to pay the seller the $1,000, pay his unpaid payments of $2,000 and make all future payments until the mortgage is paid in full. The seller jumps at this deal. You can close as fast as you can raise $3,000.

The closing goes this way since you have prepared the documents in advance. The seller signs a land trust agreement with a trustee you choose. The seller signs a deed, which will transfer the property into the land trust. The seller assigns the beneficial interest in the land trust to you. Your trustee and the seller sign the settlement statement. The seller receives his $1,000 and the $2,000 is sent to the bank. You now own a property worth $50,000 subject only to a $32,000 mortgage. You have no personal liability for the loan. No one knows you bought the property. If the bank questions the seller, he explains how he transferred the property into trust.

You may think deals like this are a fairy tale. They're not. This type of deal is done by someone every day. If you're not buying houses like this, you are missing out on some easy money.