Land Trusts Attorney in Colorado | Boulder Land Trusts Lawyer
In Colorado, a land trust is a relationship between the person who creates the trust (settlor), the person who administers the trust (trustee) and the person who benefits from the trust (beneficiary), which is created for the purpose of administering the ownership and use of land. There are conservation land trusts in which a trust is set up by a municipal or charitable organization for the benefit of the public for specific, conversation oriented uses. There are also family trusts (legacy trusts) that are used to hold title to real estate. For the purposes of this web page, we will be discussing the use of land trusts primarily by investors as a means of asset protection. Whether used in Colorado or anywhere else, these land trusts are typically known as Illinois type land trusts.
What is an Illinois type land trust? A typical Illinois type land trust is one in which a real estate investor (grantor) grants a property to the trustee of a trust for the benefit of the grantor. Later, the grantor assigns the beneficial use of the real estate to a business entity wholly owned by the grantor. That business entity, by way of the grantor, who is the sole officer, retains the power to make decisions regarding the real estate.
Why might an investor want to use a land trust? The reasons run the gamut but the main reason is that placing real estate into a trust can help prevent people who would otherwise be interested in suing you from understanding the extent of your assets, which may lead them to deciding not to file suit against you in the first place. This goal is thwarted by Colorado law, however, which requires deeds conveying title to trusts to name the trust’s beneficiaries. C.R.S. § 38-30-108. The aforementioned statute was enacted to cure marketability of title problems related to creditors and third parties having to investigate outside the public record to determine a prospective grantor’s interest or lack thereof.
Why would a Colorado investor ever choose a land trust over an LLC? The main reason is this: if there is a deed of trust (mortgage) encumbering the real estate the borrower must usually get permission from the lender (bank) before conveying the property to an LLC. The reason permission is required is because within almost every deed of trust encumbering almost every piece of real property in Colorado there is a “due on sale” clause that allows the lender to accelerate the loan if the property is transferred to another person or entity. The lender may or may not allow such a transfer. By conveying the real estate to a trust in which the grantor retains beneficial use, the grantor takes advantage of the Garn St. Germain Act of 1982, which, essentially, prevents lenders from enforcing due on sale clauses when a borrower’s real property is conveyed into a grantor trust (i.e., a trust in which the grantor retains the ability to use and control the property).
Determining whether a land trust is right for you is a complex analysis requiring an in-depth understanding of the law, the implications of the law, business practices and the client’s goals.
If you believe a land trust may be beneficial to you and are looking for a Land Trust Attorney in Colorado with a results oriented, cost-effective approach tailored to your matter’s specific needs, contact Newell Law. We have the experience and knowledge to achieve the best results possible for your case.