Could you benefit from a structure that disguises your ownership of real estate?
If you own rental properties and have been sued by your tenants, or you are otherwise a target for litigation, this structure should be of particular interest. And in this age of the Internet, potential litigants no longer need to go down to the county courthouse or recorder�s office to find out who owns a particular property. They just need to conduct an instantaneous computer search to locate all property you own in the United States.
Fortunately, there�s a better way to own real estate. It�s called the land trust. The concept is particularly popular in American states that have specific statutes enabling such trusts, e.g., Illinois and Florida. Most other states recognize the land trust under common law4 as a revocable or living trust.
As with any trust, in a land trust, the trustee � generally an attorney, law firm or bank � holds legal title to all trust property. However, in a land trust, the named beneficiaries retain use of the property and any income it generates. In addition, the trustee can act only when it receives written instructions from the beneficiaries, who maintain complete control at all times.
From a privacy standpoint, a trust is superior to business entities such as corporations or limited liability companies. There is generally no requirement to register the trust. Nor are there public records of officers, directors and shareholders. The trustee keeps control of the trust records and the identity of the beneficiaries in a secure location and will not reveal this information without a subpoena. No one knows about your beneficial ownership except you, your attorney and the trustee.
You can convey property you own in your name into the trust, but it is better to have the seller convey it directly to the trustee. This avoids having real estate records ever showing that you owned the property.
Anonymity may also be desirable in situations where the seller is reluctant to accept your offer. When Walt Disney was purchasing land in central Florida to build Disney World, he used land trusts to disguise his intentions so as not to drive up the price.
Other advantages of the land trust include:
Asset protection � to a point. Real estate in a trust is protected from judgments and liens against the beneficiary. If a judgment is entered against you, the lien will not automatically attach to the property, since the title is not in your name. If the trustee resides in a different state than the property is located, it will be difficult and expensive for creditors to discover your interest in the property.
However, because you maintain control of the assets in a revocable trust, your beneficial interest in it is subject to creditor claims. If you are sued and a judgment is entered against you, a creditor can force you to list all assets you own and (if he�s smart) any beneficial interests you hold in trust. The creditor can then force you to sign over your beneficial interest to him. (In contrast, in properly prepared domestic irrevocable trusts or foreign asset protection trusts (TSI 10/02),5 creditors do not have this power.)
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Ease of multiple ownership. When two or more people own a parcel of real estate, each one must sign every legal document (deeds, mortgages, etc.) related to that parcel, then have those documents notarized and placed in public real estate records. This can lead to unwanted disclosure, not to mention difficulties to investors who don�t live in the area where the parcel is located. But with a land trust, since the trustee holds title, only the trustee needs to sign, notarize and record documents (in his name, not the name of the investor).
No right of partition. Whenever two or more persons or entities share ownership of real estate, any owner can at any time demand partition; i.e., to sell the real estate and divide the proceeds. In contrast, real estate held in trust cannot be partitioned. However, any beneficiary can transfer part or all of his beneficial interest in the trust to another party.
Probate avoidance. Real estate holdings are generally subject to probate � that costly and privacy-invading legal procedure by which your estate passes to your heirs. However, a trust agreement can provide for succession of beneficial ownership upon the death of named beneficiaries � your children and grandchildren, for instance � without going through probate.6
No adverse tax consequences. There are no tax consequences of transferring property into a revocable trust such as the Illinois land trust. Since you as the grantor maintain control over the property in trust, you are considered the owner for tax purposes.7 In contrast, owning property through a corporation may subject you to two separate layers of taxation and in any event will require the submission of a tax return for each year of its existence.
Important: Form a land trust only after seeking legal advice to insure that it can be used in the state where you intend to purchase property and that the trust will not be required to register as �doing business� in that state. Registration greatly reduces the privacy advantages of the trust.
By Mark Nestmann
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