Avoiding "Due on Transfer" Provisions in Land Trusts and Single-Member LLCs

A Real-World Guide to Garn-St. Germain Act Exemptions

Recording of a 90-minute CLE/CPE webinar with Q&A


Conducted on Wednesday, March 22, 2017
Recorded event now available


This CLE/CPE webinar will provide estate planners and trust attorneys with comprehensive guidance on accomplishing transfers of encumbered real property to a revocable living trust without triggering “due on sale/due on transfer” mortgage provisions. The panel will discuss how the Garn-St. Germain Depository Act exclusions operate in the real world of trust and estate planning practice, and will offer practical tools for structuring transfers and drafting trust language to avoid acceleration clauses in mortgage notes.

Description

Almost every mortgage agreement on real property contains a “due on sale/due on transfer” clause, which gives the lender the option to demand payment in full of the amount due on the loan under certain circumstances, such as if title to the property is transferred to another party without the advance written consent of the lender.

An important exception to the enforceability of these provisions is found in the Garn-St. Germain Depository Institutions Act, which exempts transfers of certain residential real property from enforcement of the “due on sale” provisions. While the Act has been law for over 30 years, estate planners and attorneys face challenges in applying the provisions of the exemption.

The Act protects transfers of certain real property “into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property.” However, transfers to other persons or entities often do not receive statutory protection from the due on transfer requirements, and in other scenarios the treatment is not clear. For example, would a transfer of the property into a single member LLC where the borrower is the sole member give the lender the option to call the note immediately due and payable?

To protect a client’s real property assets, estate planners and counsel must have a clear understanding of what property is eligible for exemption, how to draft trust documents for a qualified trust, and how to structure transfers of the property into not only trusts but LLC structures.

Listen as our experienced panel of estate planning counsel and real estate lawyers provides a “real world” guide to structuring trusts to protect residential real property assets from acceleration clauses in mortgage documents.

Outline

  1. History of the due on sale clause, and of the Garn-St. Germain Depository Institutions Act
  2. Brief definition of “due on sale/due on transfer” provisions
  3. The exceptions the Garn-St. Germain Depository Act provides to the due on transfer provisions
  4. Drafting revocable living trust documents to hold encumbered real estate
  5. Structuring the transaction to avoid the acceleration provision
  6. Transfers into single-member LLCs

Benefits

The panel will review these and other key issues:

  • What are the specified transfers exempt from enforcement of due on sale/acceleration clauses as they relate to estate planning?
  • What are the practical requirements that a trust must have to ensure that a transfer of qualified property does not trigger an acceleration clause?
  • What are the specific traps that trust counsel must avoid in structuring a trust transaction?
  • Sample language for trust documents

Learning Objectives

After completing this course, you will be able to:

  • Identify the transfers exempt from enforcement of due on sale/acceleration clauses for estate planning purposes
  • Discern trust provision requirements to ensure that a transfer of qualified property does not trigger an acceleration clause
  • Determine transfers into LLC structures that will not violate “due on transfer” provisions
  • Recognize specific tax traps that trust advisers must avoid in structuring a trust transaction

Faculty

William Bronchick, Principal Shareholder
Bronchick & Associates, Aurora, Colo.

Mr. Bronchick specializes in all forms of asset protection and is a nationally-known attorney, author, and speaker. He has been involved in over 3,000 real estate and business transactions. He has authored several real estate and business books, his articles appear in newspapers, magazines, and journals nationwide, and he has appeared as a guest on numerous radio and television talk shows.He has also been featured in Money Magazine, USA Today, CNN Money, the Wall Street Journal Online, Investors Business Daily, New York Newsday, the Los Angeles Times and the Denver Business Journal.

Bryan Dunklin
Law Offices of Bryan Dunklin, Dallas

Mr. Dunklin focuses his practice on owner financing documentation, real estate transactions, trusts, foreclosures, civil litigation, formation of legal entities and bankruptcy. He previously taught real estate law and transactions for 23 years at SMU and was a general counsel for a national bank and former president and general counsel of a real estate brokerage syndication management firm. He frequently presents on real estate issues.


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