Nov 13, 2017 | Real Estate Definitions, Real Estate Tips
By Attorney Nicholas Thalheimer
Generally, when declarations of trusts are recorded at the Registry of Deeds, the trust document will identify and name successor trustees. However, some trust documents do not name successor trustees. This becomes problematic when the original trustee(s) of the trust passes away and there is no successor trustee named or appointed either by the deceased trustee, while they are still living, or in the body of the trust document itself. In circumstances where a trust is unrecorded, the only evidence of the existence of the trust may be a recorded Certificate of Trust, which is acceptable. However, if the trustee is deceased and there is nothing of record signed by the original trustee(s) in the form of a certificate naming, or identifying, successor trustees effectively the trust has no trustee of record.
For example, when an unidentified successor trustee alleges that he or she is the successor trustee and attempts to convey, or take other actions related to, real estate owned by the trust, there is a question of whether he or she is truly the successor trustee. This is commonly referred to as the “Stranger to Title” issue, meaning that simply recording a self-serving trustee certificate executed by that successor trustee is not sufficient to evidence that he or she is, in fact, the successor trustee. This raises a question as to true ownership of the property and authority of the successor trustee to act.
In this example, without recorded evidence of a named successor, being appointed so by the current trustee of record, or by the beneficiaries of the trust (if the terms of the declaration of trust allows for this), there is no way of confirming legitimacy of the person claiming to be a successor trustee. Without clear evidence identifying a successor trustee, anyone could claim to be a trustee and attempt to convey the trust property.
Trust Attorneys who draft these documents commonly argue that identification of a successor trustee doesn’t need to be recorded. However, from a title insurance perspective, there must be a valid written instrument in the chain of title that evidence a successor trustee.
Another common problem we often encounter are trustee deeds for consideration of a dollar or some other nominal consideration. Property of a trust cannot be conveyed for nominal consideration. Title insurance companies view this as a possible breach of fiduciary duty. Often you have to look to the body of the trust to determine whether or not a trustee has the power to gift or whether or not they have the ability to make nominal gifts or convey for nominal consideration because they are, in fact, as trustees, fiduciaries for the beneficiaries.
Luckily, there are solutions to these issues. An affidavit of the attorney who drafted the trust can be recorded along with the applicable provisions of the trust to prove the identity of the trustee and their enumerated powers or authority. Oftentimes the alleged successor trustee does not have the original trust or a copy of it. However, if the attorney who drafted trust has a copy, that copy or select provisions of it, along with an affidavit stating the identity of a successor trustee can be recorded.
If there is a successor trustee, the trust, itself, should contain language about how to appoint a successor trustee. Usually, the process is left to the direction of the beneficiaries. But this can be an issue as well where there is no clear identification of the beneficiaries. Most trusts are drafted with a reference to a schedule of beneficiaries. However, that schedule of beneficiaries is not usually recorded. The same attorney that drafted the trust or the original trustees may, have the schedule of beneficiaries.
Under that set of circumstances, the issue can sometimes be resolved by recording a document supporting the alleged successor trustee’s assertion that he or she is, in fact, the successor trustee. It all depends on the language of the trust.
The bottom line is that, as conveyancing attorneys, we have to rely on what is recorded in the chain of title to determine who the record owner is and what powers they have, or may not have. In cases where the property is held in trust, we cannot rely on self-serving statements of alleged successor trustees. This is the case whether the trust is recorded or not. We must a see a clear nexus between the purported trustee and the trust. And if a conveyance is made by the trustee for nominal consideration their power to do so must be clearly stated in the recorded title. Few trusts contain provisions for gifting or transferring title for nominal consideration and it is usually limited to estate planning or inter-family transfers.
Mar 22, 2017 | Real Estate Tips, Uncategorized
The most popular time of year to buy a home is in the spring, and this means that if you’re preparing yourself for getting into the real estate market, you may be experiencing a time crunch. If you’re wondering if you’ll be ready to put your home up for sale in time to take advantage of the season, here are few things you’ll want to think about.
Have You Cleaned Up And De-cluttered?
Spring is not only an optimal time to put your home up for sale, it’s also an ideal time for spring-cleaning! Instead of leaving all of the de-cluttering and clearing away to the time when you know you’ll be moving, get prepared by going through your stuff and discarding anything that you don’t want to move. This will not only make the packing up procedure more streamlined, it will also make the basic cleaning duties like vacuuming a dusting a little easier to carry out.
Are You Prepared To Move?
A home can sit on the market for a few weeks or months, and it can also sell on the first day, so you’ll want to have a game plan for moving beforehand. If you don’t yet have a place to stay, determine a plan for yourself and your family so that you can start looking for a home to invest in or at least rental property. You don’t want to lose out on a good offer by not being prepared, so make sure you know where you’re going before getting into the market.
Do You Know The Market Conditions?
Spring is certainly the most popular time to buy, but if your home isn’t priced right for the conditions of the market, it may linger longer than you’d expect. If you’re selling on your own, you may want to take a look at the MLS listings to determine what similar homes in similar areas are selling for. It can also be a great idea to utilize the services of a local real estate agent who will have background knowledge of the market and be able to do the tough negotiating for you.
With spring being the best time to sell, it’s important to de-clutter your house ahead of time and be aware of the market conditions you’ll be dealing with. If you’re about to put your home up for sale, contact your trusted real estate professionals for more information.
Jan 26, 2017 | Real Estate Tips, Uncategorized
Selling a standard home is fraught with enough concerns about marking it at the right price and staging it properly, but it’s an entirely different ball game when it comes to luxury property. If you’re planning on selling your high-end property and are trying to determine what sets it apart from the average home sale, here are some things to consider before putting it on the market.
The Price Must Be Reasonable
It’s important for the asking price on any home to show an awareness of market conditions, but when it comes to luxury, it becomes even more important. Most luxury homes are going to sit on the market for a longer period of time than a less expensive home because there are fewer potential buyers. In order to facilitate a successful sale, it’s necessary for the asking price to be competitive and in line with the amenities provided so that buyers won’t flock to other opportunities.
Use The Right Marketing Tools
With so many available methods to sell a home nowadays, it’s never been easier to get the word out that you’re selling your home. However, if the asking price is higher it’s imperative that the property is displayed in the right light. When it comes to a luxury property it’s worth having an agent who knows the market and the neighborhood well. They will be able to display your home at its most ideal by creating a website with enticing photography and details to showcase all of your home’s best attributes.
What Are The Market Conditions?
It’s difficult to time the market, but when it comes to the impact economic times can have on a luxury home sale, it’s even more important to be aware of prices. Not only will you want to be aware of the amenities your home has and how much more desirable they’ll be at certain times of the year, you’ll also want to be sure that the market is on an upswing. A market that is on the rise can make a significant difference on the offers you’ll get.
There are many factors involved in putting your home on the market, but when it comes to luxury real estate it’s important to time the market and ensure your asking price is spot on. If you’re currently preparing to put your luxury home on the market, you may want to contact one of our real estate professionals for more information.
Nov 8, 2016 | Real Estate Tips, Uncategorized
Are you in the market to buy or sell a home? If so, you may be wondering whether to work with a real estate agent or not. While saving on the commission might sound tempting, it can cost you later.
Here are six reasons to choose a real estate agent the next time you buy or sell a home.
#1: Agents Get The Best Price
If you’re trying to buy or sell on your own, it’s going to cost you. When buying, real estate agents are able to tap into market data to know the best price to bid. When selling, they can use this same data to ensure you ask for the highest reasonable price.
#2: Agents Know The Market
Is now the best time to buy or sell? You might not be sure, but a real estate agent will know. They have daily access to local market trends that outsiders can’t see. And since they’re working in your market each day, they can get a sense for what’s coming.
#3: Agents Know How To Negotiate
Are you a strong negotiator? If not, you’ll want to let your real estate agent take care of the negotiations. Remember, the other party in the transaction is likely to have an agent. So, without one of your own, you’ll be up against a skilled negotiator with no backup.
#4: Agents Have The Time And You Don’t
Let’s face it: you’re busy. Unless you’re going to take a vacation to deal with your real estate transaction, you don’t have the time. Real estate agents spend all their time working on their client properties. They make the time to handle inspections, negotiations and other activities.
#5: Agents Know What To Look For
If you’re buying or selling for the first time, you’ll definitely want to contract an agent. They know how to spot deficiencies in the house or property. Their experience allows them to see problems that you might not spot on your own. And they’ll know what needs to be fixed and what can wait until later.
#6: Agents Can Deal With The Paperwork
Do you love dealing with contracts, legal forms and other paperwork? If not, this might be reason enough to work with a real estate agent. They will take care of all the necessary paperwork for your purchase or sale. And if you’ve ever participated in a real estate transaction before, you know there’s a LOT to deal with. Leave this to your agent so you can focus on more fun activities.
The above are just six of the (many) reasons to work with a real estate professional. If you’re thinking about buying or selling a home, contact your local trusted real estate professional today.
Jul 29, 2016 | Real Estate Tips
In a typical real estate transaction, numerous factors may be negotiated, and the terms of the purchase may be negotiated at different times throughout the process. For example, the contract may be negotiated at the time the original offer is made, but revisions to the contract may be negotiated after the property inspection has been completed. Both parties want to have the upper hand in negotiations, but those who focus on a few points are more likely to walk away feeling satisfied with the results of the negotiations.
Research All Factors Related To The Negotiation
A successful negotiation may be about achieving specific, desired goals, but in most cases, there will be a bit of give and take on both parties’ parts in order to find success. Those who have the upper hand in real estate negotiations will take time to research all factors related to the negotiations, and this includes everything from market conditions and how long the property has been on the market to how competitively priced the real estate is, how many other buyers there are and more.
Understand All Motives And Influences
Beyond outside factors related to the negotiation, there typically are personal motives and influences that must be considered. For example, a seller may be motivated to sell quickly due to a job offer in another city, or a buyer may be motivated because the property is the only one of its kind close to a great school. Real estate agents can often provide information about motives and influences that may impact the negotiations and that may reveal who has the upper hand in negotiations.
Consider Alternative Creative Solutions
After all external and personal factors have been researched and itemized, it may appear that one party has a clear upper hand in negotiations and the other party does not. However, in order to be successful in negotiations, typically both parties will need to feel as though they are getting what they want. After all parties’ motivations have been identified, it may be possible to think of creative, outside-the-box alternatives that may be agreeable to both parties.
When a buyer or a seller is preparing to negotiate with the other party, it is important that they fully understand all of the factors that may be at play in determining the outcome of negotiations. When buyers and sellers focus on these points before making an offer or counteroffer, they may find their negotiation efforts more successful. Contact your trusted real estate agent for more information.
Jul 7, 2016 | Real Estate Tips
There can be a lot of excitement when it comes to the realization that you’ve inherited a home, but simply because it’s an inheritance doesn’t mean there aren’t a few strings attached. Whether you’re expecting to be gifted with a home in the future or you’re currently going through this process, here are a few things you may need to watch out for.
The State Of The Mortgage
Once a home has been effectively handed over to you, it’s important to determine the status of the mortgage with the lender and if anything is still owed. While you have the option of taking over the mortgage in a lot of cases, in the event that there’s a reversible mortgage or you’re choosing to rent it out as a second property, you may not be able to transfer the mortgage. While this can often be a rather seamless process, if money is owed there can be other factors to consider.
Determine If You Want It
If you already have a first home and don’t want to take care of your second property as a rental unit, it’s important to realize that keeping the home may not be the best decision for you. While you have the option of organizing a short sale if you’d like to get it off of your hands, you can also contact a real estate agent who will be able to provide you with advice on how to proceed if you’re unwilling (or unable) to take control of the property.
Is It In Good Condition?
Whether you want to keep the home or not, there can be cases where it’s not even a question if it’s a home that you’re going to end up investing money into without much return. In the situation that a lot of money is owed on the house or there are serious issues with its general condition, you may want to release yourself from the inheritance and move on with your financial situation still intact.
There can be an instant feeling of acquired wealth in the event that you’ve inherited a home, but a home in bad condition or that you don’t want to take care of can end up being more of a headache than anything else. If you’re currently considering your options when it comes to a home inheritance, contact your local real estate professional for more information.
