Tag Archives: Estate
Life Insurance Trusts: A Strategic Tool for Estate Tax Planning Estate planning is a critical component of comprehensive financial management, particularly for high-net-worth individuals
One of the most significant challenges in this process is mitigating the impact of federal and state estate taxes, which can substantially erode the wealth intended for heirs. Among the sophisticated strategies available, the Irrevocable Life Insurance Trust (ILIT) stands out as a powerful and flexible vehicle for addressing this concern.
Understanding the Estate Tax Problem
The federal estate tax exemption is substantial but not unlimited. For 2023, the exemption is .92 million per individual (.84 million for married couples). Estates exceeding this threshold are subject to a top federal tax rate of 40%. Furthermore, several states impose their own estate or inheritance taxes, often with much lower exemption levels. Without proper planning, a significant portion of an estate’s value can be lost to taxes, potentially forcing the liquidation of assets like a family business or real estate to satisfy the tax liability.
How an Irrevocable Life Insurance Trust Works
An ILIT is designed to own a life insurance policy on the grantor’s life. Because the trust, not the individual, owns the policy, the death benefit proceeds are kept outside of the grantor’s taxable estate. This structure provides several key advantages:
The insurance proceeds paid to the trust are not included in the grantor’s estate for tax calculation purposes. This provides liquidity precisely when it is needed—at death—to pay estate taxes and other settlement costs without touching other estate assets.
Estates rich in illiquid assets (e.g., closely-held business interests, real estate, art) can face a cash crunch when taxes are due. The tax-free death benefit from the ILIT provides immediate cash to cover these obligations.
The grantor, through the trust document, dictates how and when the proceeds are distributed to beneficiaries (e.g., children or grandchildren). This can protect the funds from creditors, divorcing spouses, or irresponsible spending, and can structure distributions over time for minors or young adults.
An ILIT can be designed to benefit grandchildren or later generations, leveraging the GST tax exemption to transfer wealth efficiently across multiple generations.
Key Steps and Considerations
Establishing and maintaining an ILIT requires careful adherence to legal and procedural rules:
* Irrevocability: The trust is irrevocable. Once established and funded, the grantor gives up ownership and control of the policy and cannot amend the trust terms unilaterally.
* Trust Creation: An attorney drafts the ILIT document, naming an independent trustee (not the grantor) to manage the trust.
* Policy Application & Transfer: The trustee applies for a new life insurance policy owned by the ILIT from inception. Alternatively, an existing policy can be transferred to the ILIT, but this triggers a three-year “look-back” period; if the grantor dies within three years of the transfer, the proceeds may be pulled back into the taxable estate.
* Crummey Powers: To make premium payments gift-tax-free, beneficiaries are given a temporary right (a “Crummey power”) to withdraw their share of the contribution. This qualifies the payment as a “present interest” gift, allowing the grantor to use their annual gift tax exclusion (,000 per recipient in 2023).
* Trustee Responsibilities: The trustee is responsible for administering the trust, notifying beneficiaries of Crummey powers, paying premiums, and ultimately distributing proceeds according to the trust terms.
Is an ILIT Right for You?
An ILIT is not a one-size-fits-all solution. It is most advantageous for individuals whose net estate—including life insurance, retirement accounts, real estate, and business interests—is likely to exceed the federal and/or state estate tax exemption thresholds. It is also suitable for those who wish to provide protected, structured inheritances.
Conclusion
For individuals facing a potential estate tax liability, an Irrevocable Life Insurance Trust offers a proactive and strategic solution. By removing life insurance proceeds from the taxable estate, it ensures that heirs receive the maximum intended inheritance while providing crucial liquidity to settle taxes and expenses. Given the complexity of trust law and tax regulations, consulting with a team of experienced professionals—an estate planning attorney, a financial advisor, and a tax accountant—is essential to properly design, implement, and maintain an ILIT as part of a cohesive estate plan. Properly executed, an ILIT can be a cornerstone of legacy preservation for generations to come.
Vacant Home Insurance: Understanding Limitations and Costs Owning a vacant property—whether due to a slow real estate market, an inherited home, seasonal use, or extended travel—introduces unique risks that standard homeowners insurance policies are not designed to cover
Securing appropriate protection requires a specialized policy: vacant home insurance. Understanding its limitations and associated costs is crucial for any property owner facing an extended period of vacancy.
Why Standard Homeowners Insurance Falls Short
Most homeowners policies contain clauses that significantly reduce or void coverage if a dwelling is left “vacant” for a consecutive period, typically 30 to 60 days. Insurers view vacant properties as high-risk for several reasons:
* Increased Vulnerability to Damage: Without regular occupancy, minor issues like a small leak or pest infestation can go unnoticed and escalate into major, costly damage.
* Higher Risk of Theft and Vandalism: An empty house is a target for thieves, squatters, and vandals, as there is no one to deter them or report activity.
* Delayed Discovery of Problems: With no one present, a disaster like a burst pipe or electrical fire can cause catastrophic damage before anyone is aware.
Because these risks are heightened, standard policies exclude them, leaving the property owner financially exposed.
Key Limitations and Exclusions of Vacant Home Insurance
Vacant home insurance (often called “vacant property insurance” or “dwelling fire policy”) is a necessity, but it is inherently more restrictive and comes with important limitations:
Unlike the comprehensive “all-risk” coverage of a typical HO-3 policy, most vacant home policies are “named perils.” This means they only cover losses caused by events explicitly listed in the policy, such as fire, lightning, windstorm, hail, and sometimes vandalism. Damage from burst pipes, theft, or falling objects may not be covered unless specifically included.
Liability coverage, which protects you if someone is injured on your property, is often severely limited or excluded. This is a critical gap, as trespassers or curious children could still enter the property.
Insurers will require you to maintain the property to a certain standard. This often includes:
* Securing all doors and windows.
* Winterizing plumbing to prevent freezing pipes.
* Keeping utilities on (often just electricity) for security systems.
* Arranging for regular exterior inspections and lawn maintenance.
* Removing all valuable personal property.
Deductibles for vacant home insurance are typically much higher than those on standard policies, meaning you will pay more out-of-pocket when a claim occurs.
These are short-term policies, usually written for one year or less, and the insurer may require a property inspection before binding coverage.
Understanding the Costs:
What Drives the Premium?
Vacant home insurance is significantly more expensive than standard homeowners insurance—often 50% to 100% more, or even higher. Several factors influence the premium:
* Length of Vacancy: The expected duration of vacancy directly impacts the cost. Longer vacancies mean higher risk.
* Property Location: Crime rates, weather risks (like hurricane or wildfire zones), and proximity to emergency services in the area will affect the price.
* Property Condition and Value: A well-maintained, modern home with updated electrical and plumbing systems will be cheaper to insure than an older, dilapidated property.
* Security Measures: Installing monitored alarm systems, security cameras, motion-sensor lights, and boarded-up windows can lead to premium discounts.
* Level of Coverage Selected: Choosing to add endorsements for coverage like theft, vandalism, or water damage will increase the cost but provide more complete protection.
Proactive Steps to Manage Risk and Cost
Notify your insurance agent as soon as you know the property will be vacant. Do not assume your current policy provides coverage.
This is your first line of defense and a requirement of insurers. Make the property look lived-in with timed lights, arrange for mail/package pickup, and ensure regular upkeep.
Vacant home insurance is a specialized product. Get quotes from multiple carriers that specialize in non-standard or high-risk properties.
This is a common solution for vacant homes, offering the core named perils coverage. Discuss adding specific endorsements to fill critical gaps.
Once someone moves back in, immediately contact your insurer to switch back to a standard policy to avoid overpaying.
Conclusion
Vacant home insurance is a critical, albeit more limited and costly, safeguard for an unoccupied property. Owners must clearly understand its exclusions—particularly the shift to named perils and reduced liability—and actively manage their property’s risk profile. By taking proactive steps to secure the dwelling and carefully selecting the right policy, you can protect your valuable asset during a period of transition without facing devastating financial loss from an uncovered peril. Always consult with a licensed insurance professional to tailor a solution that fits your specific property and circumstances.
Life Insurance Trusts: A Strategic Tool for Estate Tax Planning
For high-net-worth individuals, the prospect of federal estate taxes can significantly diminish the wealth they intend to pass on to their heirs. While life insurance is a common solution to provide liquidity for these taxes, owning a policy directly can inadvertently increase the taxable estate. This is where an Irrevocable Life Insurance Trust (ILIT) becomes an indispensable instrument in sophisticated estate planning. This article explores how ILITs function and why they are a powerful strategy for mitigating estate tax liability.
The Core Problem: Life Insurance in Your Estate
Many individuals purchase life insurance to ensure their heirs have the cash to pay estate taxes without being forced to sell assets like a family business or real estate. However, if you are the owner of your own life insurance policy, the death benefit is included in your taxable estate upon your death. For 2023 and 2024, the federal estate tax exemption is .92 million and .61 million per individual, respectively (.84M and .22M for married couples). While these thresholds are high, they are scheduled to sunset in 2026, potentially exposing many more estates to taxation. An ILIT is designed to remove the insurance proceeds from your estate altogether.
What is an Irrevocable Life Insurance Trust (ILIT)?
An ILIT is a trust that is created to own and be the beneficiary of a life insurance policy. Because the trust—not you—owns the policy, the death benefit proceeds are not considered part of your estate for tax purposes. This irrevocable nature means that once the trust is established and funded, you generally cannot alter or dissolve it, ensuring the assets are permanently removed from your control and estate.
Key Benefits of an ILIT
- Estate Tax Exclusion: The primary advantage. The insurance proceeds bypass your estate, shielding them from federal estate taxes, which can be as high as 40%.
- Liquidity for Heirs: The trust provides immediate, tax-free liquidity to pay estate taxes, administrative expenses, and debts, preserving other estate assets.
- Control and Flexibility: As the grantor, you dictate the terms of the trust, specifying how and when the beneficiaries receive the funds. This can protect assets from creditors or a beneficiary’s imprudent spending.
- Privacy and Probate Avoidance: Unlike a will, a trust is a private document. The assets distributed through the ILIT avoid the public and often lengthy probate process.
How an ILIT Works: A Step-by-Step Overview
- Creation: An attorney drafts the ILIT document, naming a trustee (who cannot be you) and defining the beneficiaries and terms.
- Funding: The ILIT is formally established. You transfer cash to the trust, which the trustee then uses to apply for a new life insurance policy on your life. Alternatively, an existing policy can be transferred to the ILIT, but this triggers a three-year “look-back” period for estate tax inclusion.
- Premium Payments: You make cash gifts to the trust. The trustee then uses these gifts to pay the policy premiums.
- Crummey Powers: To qualify these gifts for the annual gift tax exclusion (,000 per recipient in 2024), beneficiaries are given a temporary right (a “Crummey power”) to withdraw the gifted funds. They typically waive this right, allowing the trustee to pay the premium.
- Distribution: Upon your death, the trustee collects the tax-free death benefit, manages the funds according to the trust’s terms, and distributes them to the beneficiaries.
Important Considerations and complexities
While powerful, ILITs are not without complexity. They require careful ongoing administration:
- Irrevocability: You relinquish all ownership rights and control over the policy and trust assets.
- Trustee Selection: Choosing a competent and reliable trustee (a corporate trustee, attorney, or trusted advisor is common) is critical.
- Administrative Duties: The trustee must meticulously manage the trust, send Crummey notices, file tax returns, and ensure compliance.
- Professional Guidance: Establishing an ILIT is not a DIY endeavor. It requires coordination between an experienced estate planning attorney, a financial advisor, and often an accountant.
Conclusion
For individuals with sizable estates, an Irrevocable Life Insurance Trust is a premier strategy for preserving wealth across generations. By strategically removing life insurance from your taxable estate, an ILIT ensures that your heirs receive the maximum benefit of your legacy, rather than seeing it eroded by taxes. Consulting with a qualified estate planning professional is the essential first step to determine if this sophisticated tool is the right fit for your financial and familial goals.
Disclaimer: This article is for informational purposes only and does not constitute legal or financial advice. Please consult with a qualified professional regarding your individual situation.
SMS for the estate agent – Targeted marketing tool, or Legal Minefield?
SMS for the estate agent – Targeted marketing tool, or Legal Minefield?
Imagine having at your disposal a means to immediately inform house buyers that you have just the property they are looking for. Potential buyers have given their details and their preferences – imagine that you can send them this information no matter where they are or what they are doing, they can read it at a time that’s convenient and can act accordingly in their own time. Imagine that you can do this quickly and easily, in a matter of minutes, regardless of the number of recipients.
Sounds too good to be true? Well it’s not – it’s available now, it’s inexpensive and you can be taking advantage of it within minutes of reading this article. It’s called SMS Text Messaging – and of course you already knew about it didn’t you?
From the homebuyer’s perspective, SMS is a really convenient way to get information. It’s personal and it’s discreet. There’s immediacy about the message, but at the same time it’s not intrusive, and they can handle the response at their convenience.
So you decide that this is a great idea and you want to get your company geared up for the 21st century. How do you get started? Perhaps your first thought is to get your friendly IT Consultant to take a look at the problem, right?
Stop! Don’t pick up that phone until you’ve read the rest of this article. In common with many of these kinds of issues it’s easy to get so bogged down in the technicalities that we fail to consider some of the other issues involved.
First of all, let’s look at the legalities.
By 31st October 2003, all member states of the European Union will be implementing Article 13 of the Directive on Privacy and Electronic Communications (DPEC).A public consultation on how to implement the DPEC in the UK was launched by the DTI on 27 March 2003, and ran for 12 weeks, closing on 19 June 2003. Final implementing Regulations are now being prepared, taking into account the responses received. The DTI intend to publish details of these final measures by mid-September 2003. The new Directive:
Replaces existing definitions for telecommunications services and networks with new definitions for electronic communications and services to ensure technological neutrality and clarify the position of e-mail and use of the internet;
Enables the provision of value added services based on location and traffic data, subject to the consent of subscribers (for example, location based advertising to mobile phone users);
Removes the possibility for a subscriber to be charged for exercising the right not to appear in public directories;
Introduces new information and consent requirements on entries in publicly available directories, including a requirement that subscribers are informed of all the usage possibilities of publicly available directories – e.g. reverse searching from a telephone number in order to obtain a name and address;
Extends controls on unsolicited direct marketing to all forms of electronic communications including unsolicited commercial e-mail (UCE or Spam) and SMS to mobile telephones; UCE and SMS will be subject to a prior consent requirement, so the receiver is required to agree to it in advance, except in the context of an existing customer relationship, where companies may continue to email or SMS on an ‘opt-out’ basis;
Clarifies that the Directive does not prevent Member States from introducing provisions on the retention of traffic and location data for law enforcement purposes;
Introduces controls on the use of cookies on websites. Cookies and similar tracking devices will be subject to a new transparency requirement – anyone that employs these kinds of devices must provide information on them and allow subscribers or users to refuse to accept them if they wish.
So what does that mean to the potential implementation of your SMS service? Well, it seems quite clear, we must obtain the recipient’s permission before sending any SMS messages “unless there is an existing customer relationship”. The exact meaning of “existing customer relationship” is however somewhat of a grey area in the act. For example, if it is interpreted as being someone who has at some time bought a product from the vendor, would that mean that the product being marketed would need to be the same type of product? If this were the case, a supermarket would only be able to send messages about a single line of product to people who have bought that product and would not be able to send messages about other merchandise or services. The DTI’s stance on this is that this particular issue is clearly covered in existing UK legislation under the Data Protection Act 1998:-
“These would restrict a business to direct marketing the kind of products the addressee would have reasonably expected it to market at the time they gave or agreed to use of their contact details i.e. a business could market the products available at the time, but not necessarily those of a business that it took over, or a substantively new product range.”
So, therefore, it would seem that say a large supermarket chain, who got your name and address, phone number and email details whilst you were a customer buying groceries, should not be legally entitled to begin any form of communication with you using information about you gathered in this way if, for example, they were to start selling Insurance services or indeed start up an Estate Agency business? It would seem so.
So, in most cases, it would appear that your existing customers are open to you being able to send them SMS messages, as it would be reasonable to assume that they would expect you to send them property related information.
There are however other grey areas in the document.
The following is an excerpt from the DTI’s document on Article 13:-
“Grey areas under the current rules include the status of systems which send SMS automatically and power dialler-type systems which dial numbers automatically but are designed to establish a voice link with a live operator rather than a pre-recorded message. Lack of certainty about the application of the TDPP (Telecoms Data Protection Directive) Regulations has made it harder to deal with the problems that these kinds of systems can cause. Power diallers, for instance, can cause problems to subscribers where they are used without enough call centre staff available to answer the calls being dialled, resulting in single or repeated silent calls, or calls which cut off after a few rings, in addition to any annoyance caused if they are used to ring subscribers who have registered on the TPS (Telephone Preference Service).
Limiting the definition of automated calling system does not mean that these areas will be unregulated. The sending of unsolicited SMS for advertising purposes is now explicitly covered by the Privacy Directive which treats them in the same way as e-mail messages.”
Anyone receiving SMS messages from you should have a clear indication of where the message came from and a clear method to unsubscribe from your service.
It would seem therefore that apart from any other considerations, there are many potential legal pitfalls to setting up your own e-marketing system.
Looking at this from a slightly different perspective, the solution may well be a lot easier than you might expect. From the consumer’s angle, the approach to receiving SMS or email messages about products and services is something each of us would rather have much more personal control over. In 1998, my company at the time, Geoworks Corporation, did some extensive focus group research into consumer reaction to e-marketing and in particular SMS. This research was conducted both here in the UK and in the US. At that time, SMS messaging had been available to mobile phone users for a number of years, but we had not acheived the massive volumes that were to be reached in the phenomenon which took place some 12-18 months later when Pay As You Go services sparked huge SMS growth. To illustrate the point, all of the UK mobile phone companies at this time probably had only one or two SMS Controllers (a computer which handles the storage and routing of SMS messages) in their infrastructure. When the ramp-up suddenly began, the growth caught most of them completely unawares and meant that they had to try and commission new SMSC’s faster than the boxes could be ordered! What had been a fairly straight and flat line on a graph suddenly went vertical. Our research at Geoworks indicated that consumers were excited about receiving SMS messages about products or services provided that they were not being charged to receive the message and they had some control over what products and services they were going to receive messages about. “Permission Marketing” was the key – what the consumer wants, when they want it and where they want it. Consumers indicated that they would be happy to receive all kinds of information supported by advertising on the same basis – for example, Weather Information sponsored by X or Football Scores sponsored by Y.
It would seem then, that the key to success in this area is not in the hands of the vendor’s innovations or exclusive products, but in giving the consumer control. Without permission, any attempt to sell via this means becomes annoying and intrusive, causing the would-be potential buyer to become alienated against the marketer – a self-defeating exercise if ever there was!
So what should be your way forward? Look at other e-marketing success stories for a clue. Amazon.com is, today, a well known and respected seller of books and much more which started from humble roots in the Seattle area and has grown to be a worldwide $ multi-million success. Amazon’s success was based on giving you, the consumer, control and providing a top-class next-day service. You control from the comfort of your home or office, the parameters that determine what you get from Amazon. It’s easy and convenient, and grew like topsy. Ebay is another example – providing a worldwide auction service. Many other services provide ‘Portal’ access for the consumer to select what information they wish to receive.
So it seems Portal services are the key to gaining the hearts and minds of the consumer. But as an Estate Agent, how does that help?
A Portal could provide a single access point for would-be housebuyers to register their interest in properties by locale, price and number of bedrooms. The consumer controls what they want to get. It is open to all Estate Agents who can register, quickly and easily, any property that is going on the market. Any technical or legal issues are the responsibility of the Portal and not of the individual Estate Agent.
From the consumer perspective, it’s one place to go, they register once, but potentially get messages from many Estate Agencies provided that they match their criteria. It’s free to the consumer, and they have control to change their criteria or unsubscribe should they wish.
Condominium and Fee Simple Ownership of Real Estate
Condominium and Fee Simple Ownership of Real Estate
Real Estate Ownership
Generally, apartment-style buildings are called condos, two-story row houses are known as town homes, and free-standing homes on small lots are referred to as garden homes. Unfortunately, this description creates some confusion about real estate ownership. Apartment, town home, and garden home describe the design or construction of certain homes. The word “condominium” does not refer to a the layout or style of a building. Condominium is a form of ownership of real estate. The form of ownership of real estate cannot be recognized by observing the building design.
Condominium Regime
The legal definition of condominium is: the absolute ownership of a unit based on a legal description of the airspace the unit actually occupies, plus an undivided interest in the ownership of the common elements, which are owned jointly with the other condominium unit owners. Each unit owner of a condominium has individual title to the space inside his unit. The space is sometimes described as beginning with “the paint on the walls.” In addition, each unit owner has an undivided interest in the physical components of the condominium buildings and land.
A popular type of condominium development is the multi-story apartment. In this case, there is no land under each unit. In these developments, the condo association usually handles maintenance of the building exterior and common grounds, while the unit owners maintain the interiors of their units. A condominium association is selected to make decisions about expenditures for repairs, and to handle administrative work related to the common areas. Fees are collected from the unit owners to pay for common maintenance. The association normally holds an insurance policy covering the jointly-owned areas, while individual owners carry insurance for the interior components of their units.
Condo projects may resemble duplexes, town homes, garden homes, or residences on regular lots. In general, the creation of a condo regime allows the developer to get more density approved than would be allowed if he had done single-ownership lots. This is often the reason why the condo regime is chosen instead of a development with single ownership lots. A condominium may be built as two units of a duplex. In this case, the two owners may jointly make decisions concerning maintenance of any common areas. By setting up the units of a duplex as two condos, the owner is able to sell them to two different owners.
Each condominium has rules that are specific to the development, so no assumptions should be made about their requirements. It is important to read the condominium documents carefully before purchasing a condo. The documents specify the maintenance that is covered by the common budget. In one project, the association may handle exterior components, decks, pools, sidewalks and driveways. In another, the individual owners may be responsible for more maintenance of their units, including foundations, roofs, and exterior walls.
If you have questions about the division of labor between the common budget and the individual owners of a condominium, you can present your question to the condo board itself. The board can give you an interpretation of the rules and clarify how the issue has been handled in the past. Another possibility is to ask a real estate attorney to review the documents for you. Realtors, other unit owners, or maintenance workers are not appropriate or reliable sources for the interpretation of condo documents.
The Texas real estate contract for condominiums contains a provision requiring that the buyer be given a copy of the condo documents, with a period of time to review them. During the document-review period, the buyer may terminate the contract without penalty. In addition, a resale certificate is must be provided by the association president or manager. This document provides information on the current budgets, insurance coverage, special assessments, lawsuits and other matters that affect the association.
Fee Simple Ownership
In contrast to the condominium regime, you may own real estate by fee simple. “Fee”, which comes from the word, “fiefdom”, refers to legal rights in land, and “simple” means unconstrained. Fee simple is the most common type of ownership. It is the absolute legal title to real property, including both buildings and land.
In fee simple, there are several different possibilities with regard to your obligations of ownership:
(a) Your property may not be in a subdivision at all. In this case, your deed will not include any subdivision restrictions that control your use of the property. Be aware that there could be some deed restrictions put in place by previous owners. In addition to deed restrictions, you may be governed by city or county ordinances or zoning laws that limit your use of the property.
(b) Your property may be in a subdivision with very few restrictions, no common areas, no architectural control committee, and no mandatory dues. Usually these are older subdivisions.
(c) Your property may be in a subdivision of homes on large lots, or in a town home or garden-home community in which there is a legally created homeowners association. In this case, every homeowner is required to be a member of the association. The association may charge mandatory dues and enforce subdivision rules. A certain level of maintenance may be required of each property owner. For example, you may need association approval of exterior paint colors, fences, or additions to your home.
Like the condominium form of ownership, fee simple ownership does not prescribe how maintenance is handled or how developments are governed. For example, the owners of a town house, with fee simple ownership, may be required to fully maintain their units. Or, the owners’ association may cover painting, roofing and yard work for the owners. In subdivisions where there are single family homes on large lots, it is more common for the homeowners association to manage the common grounds, pools and parks, while the individual lot owners fully maintain their own properties.
Understand your ownership rights and obligations
Before buying into a condominium regime or purchasing a fee simple property, you should have a clear understanding of the type of ownership you will have in your property. If you are buying a condominium, it would be wise to read the condo documents carefully and understand how maintenance is divided between the individual owners and the condominium association.
If your ownership is fee simple, with individual ownership of the land, you should review the deed restrictions (if there are any) and understand the restrictions and obligations that apply to your property. In the fee simple form of ownership, there may be mandatory dues to pay for common area maintenance, or, in some cases, the dues may be used for partial maintenance of the individual properties.
If you have a question about your type of ownership or about your obligations as a homeowner, it would be wise to review the title documents with a real estate attorney before proceeding with your purchase. Ask plenty of questions! A clear understanding of your type of ownership, and of your obligations as a homeowner will result in a more satisfying real estate purchase.
Real Estate Ownership – Condominium or Fee Simple
Real Estate Ownership – Condominium or Fee Simple
Generally, apartment-style buildings are called condos, two-story row houses are known as town homes, and free-standing homes on small lots are referred to as garden homes. Unfortunately, this description creates some confusion about real estate ownership. Apartment, town home, and garden home describe the design or construction of certain homes. The word “condominium” does not refer to a the layout or style of a building. Condominium is a form of ownership of real estate. The form of ownership of real estate cannot be recognized by observing the building design.
Condominium Regime
The legal definition of condominium is: the absolute ownership of a unit based on a legal description of the airspace the unit actually occupies, plus an undivided interest in the ownership of the common elements, which are owned jointly with the other condominium unit owners. Each unit owner of a condominium has individual title to the space inside his unit. The space is sometimes described as beginning with “the paint on the walls.” In addition, each unit owner has an undivided interest in the physical components of the condominium buildings and land.
A popular type of condominium development is the multi-story apartment. In this case, there is no land under each unit. In these developments, the condo association usually handles maintenance of the building exterior and common grounds, while the unit owners maintain the interiors of their units. A condominium association is selected to make decisions about expenditures for repairs, and to handle administrative work related to the common areas. Fees are collected from the unit owners to pay for common maintenance. The association normally holds an insurance policy covering the jointly-owned areas, while individual owners carry insurance for the interior components of their units.
Condo projects may resemble duplexes, town homes, garden homes, or residences on regular lots. In general, the creation of a condo regime allows the developer to get more density approved than would be allowed if he had done single-ownership lots. This is often the reason why the condo regime is chosen instead of a development with single ownership lots. A condominium may be built as two units of a duplex. In this case, the two owners may jointly make decisions concerning maintenance of any common areas. By setting up the units of a duplex as two condos, the owner is able to sell them to two different owners.
Each condominium has rules that are specific to the development, so no assumptions should be made about their requirements. It is important to read the condominium documents carefully before purchasing a condo. The documents specify the maintenance that is covered by the common budget. In one project, the association may handle exterior components, decks, pools, sidewalks and driveways. In another, the individual owners may be responsible for more maintenance of their units, including foundations, roofs, and exterior walls.
If you have questions about the division of labor between the common budget and the individual owners of a condominium, you can present your question to the condo board itself. The board can give you an interpretation of the rules and clarify how the issue has been handled in the past. Another possibility is to ask a real estate attorney to review the documents for you. Realtors, other unit owners, or maintenance workers are not appropriate or reliable sources for the interpretation of condo documents.
The Texas real estate contract for condominiums contains a provision requiring that the buyer be given a copy of the condo documents, with a period of time to review them. During the document-review period, the buyer may terminate the contract without penalty. In addition, a resale certificate is must be provided by the association president or manager. This document provides information on the current budgets, insurance coverage, special assessments, lawsuits and other matters that affect the association.
Fee Simple Ownership
In contrast to the condominium regime, you may own real estate by fee simple. “Fee”, which comes from the word, “fiefdom”, refers to legal rights in land, and “simple” means unconstrained. Fee simple is the most common type of ownership. It is the absolute legal title to real property, including both buildings and land.
In fee simple, there are several different possibilities with regard to your obligations of ownership:
(a) Your property may not be in a subdivision at all. In this case, your deed will not include any subdivision restrictions that control your use of the property. Be aware that there could be some deed restrictions put in place by previous owners. In addition to deed restrictions, you may be governed by city or county ordinances or zoning laws that limit your use of the property.
(b) Your property may be in a subdivision with very few restrictions, no common areas, no architectural control committee, and no mandatory dues. Usually these are older subdivisions.
(c) Your property may be in a subdivision of homes on large lots, or in a town home or garden-home community in which there is a legally created homeowners association. In this case, every homeowner is required to be a member of the association. The association may charge mandatory dues and enforce subdivision rules. A certain level of maintenance may be required of each property owner. For example, you may need association approval of exterior paint colors, fences, or additions to your home.
Like the condominium form of ownership, fee simple ownership does not prescribe how maintenance is handled or how developments are governed. For example, the owners of a town house, with fee simple ownership, may be required to fully maintain their units. Or, the owners’ association may cover painting, roofing and yard work for the owners. In subdivisions where there are single family homes on large lots, it is more common for the homeowners association to manage the common grounds, pools and parks, while the individual lot owners fully maintain their own properties.
Understand your ownership rights and obligations
Before buying into a condominium regime or purchasing a fee simple property, you should have a clear understanding of the type of ownership you will have in your property. If you are buying a condominium, it would be wise to read the condo documents carefully and understand how maintenance is divided between the individual owners and the condominium association.
If your ownership is fee simple, with individual ownership of the land, you should review the deed restrictions (if there are any) and understand the restrictions and obligations that apply to your property. In the fee simple form of ownership, there may be mandatory dues to pay for common area maintenance, or, in some cases, the dues may be used for partial maintenance of the individual properties.
If you have a question about your type of ownership or about your obligations as a homeowner, it would be wise to review the title documents with a real estate attorney before proceeding with your purchase. Ask plenty of questions! A clear understanding of your type of ownership, and of your obligations as a homeowner will result in a more satisfying real estate purchase.