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Land Trusts
Holding Beneficial Interest
By Jay Butler
L
and Trusts, sometimes referred to as Florida or
Illinois 'type' trusts because of their favorable
state laws and years of case history, are
designed to hold title to real property and real property
assets including real estate options, contracts and
mortgages. Land Trusts are most commonly used to
transfer title of incomeproducing property without
invoking a dueonsale clause with their lender. Public
Law 97, also known as the Garn St. Garmain Act,
prohibits financial institutions from invoking a dueon
sale clause upon transferring title so long as, among
other things, the beneficial interest holder is the same
the day after the transfer as it was the day before the
transfer and there is no transfer in the rights of
occupancy in the property.
Both residential and commercial real estate investors
alike have made the mistake of listing themselves as the
beneficial interest holder in their land trust agreement.
Even though the beneficial interest holder of a land trust
agreement is not filed anywhere in the public domain,
should the property held in the land trust face an inside
lawsuit, or should the individual listed as the beneficial
interest holder of the land trust face an outside lawsuit,
all the assets of both the land trust and the individual are
at risk to seizure by a judgement creditor.
Although land trusts provide an excellent veil of
anonymity, it is still a form of an intervivos trust and thus
not an asset protection vehicle. Intervivos means ‘among
or between the living’ hence the term ‘living trust’. Land
Trust assets are considered personal property to the
beneficiary, which is not subject to seizure by judgement
creditors in some states. However, existing court
precedence has held that, "If a settlor has the right to
revoke a trust, all of the assets are treated as owned by
the settlor and is ignored for creditor purposes, just as it
is ignored for tax purposes." Meaning, while land trusts
can provide you with an excellent veil of anonymity in
the public domain, they are not a shield of protection as is
an entity.
Land Trusts can be revocable or irrevocable. While
generally created as revocable, if a judge were to call you
into a debtor's examination, requiring you to provide
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