Re: House For Sale - Posted by Bill Gatten
Posted by Bill Gatten on July 13, 1999 at 21:06:47:
My thanks to JPiper for an excellent answer to a good question… and his mention of the PACTrust™…my life’s passion.
Here’s what a PACTrust™ would do for you:
By placing the property into a PACTrust™ in your name and naming your tenant as a Co-beneficiary, you can actually convey to the tenant 100% of exactly the same benefits he would have if he’d bought the house any other way: but without bank qualifying or Down Payment, and without Capital Gains considerations (for yourself). Also it is singularly the safest means of avoiding the potential for a lender’s triggering of the Due on Sale Clause in your loan. And…the tenant’s BK cannot attach to the property, no matter what, since he won’t own Legal or Equitable title to it (the Trustee does).
In the beginning you set the Mutually Agreed Value (at start) at, say, the $85,000 you mentioned, stipulating your “Non-resident Beneficiary Contribution (your existing equity)” to be $10,300, plus any closing costs there may be on your part (if any).
Then at the termination of the Agreement in 5, 6 or 7 years (whatever time period you would choose) the Resident Beneficiary (your tenant) has the obligation of selling, or re-financing in his own name. At that time he pays off the existing loan; and hands you your original Contribution ($10,300 plus interest and any non-recurring Closing-Costs you may have had). You can even take the Passive Tax Loss (Depreciation) during this period, since you’re the Beneficiary that holds your interest purely for income-production purposes.
In the meantime, there is no Capital Gains Consideration for you; you have not ‘sold’ the property; you have merely held it in trust and leased it out on a triple net basis (from your standpoint).
For the Resident Beneficiary (from his point of view) he has acquired a home and 100% of the tax benefits. He has all appreciation potential, principal reduction and all the other Bundle of Rights in Fee Simple Real Estate ownership? without a Down Payment and without loan qualifying (and without involvement with, or danger from, his BK proceedings). Since he is leasing and not buying (the purchase is Contingent), the BK court would likely not be involved in any manner (especially since the entire transaction between you and him is secret, private, anonymous and never recorded).
In these cases, even if you wanted the Resident to have 100 of the ownership, with no equity share later on down the line, we recommend that you grant a 90% interest to him, retaining 10% for yourself. The 10% you hold onto provides several protections and advantages. It keeps your hand in the pie (giving you 50% voting [directive] rights). It avoids full divestiture should the lender ever want to make a point of it. It prevents Property Tax reassessment (so long as you retain 50% Power of Direction. It satisfies the minimal ownership requirement of the Securities and Exchange folks. It gives you a good “Threat-Handle” over prompt payments and strict adherence (e.g., your share is forfeited at termination only if the tenant has performed to your satisfaction). Or… or you may simply want a percentage of the profit upon sale at termination.
I sincerely hope this helps.
Call or e-mail me if I can be of service (never a charge for conversation or advice…though I’m not an attorney (you’ll need your own). Though I do keep a bunch of 'em around.
Bill