Real Property, Trust and Estate Law Journal - 2017

Real Property, Trust and Estate Law Journal - 2017

Fall 2017, Vol 52, No 2
These articles are available to download for ABA RPTE members only. To access them, join us today!

Section 501(C)(3) Organizations, Single Member Limited Liability Companies, and Fiduciary Duties
Ellen P. Aprill
Tax-exempt organizations, including section 501(c)(3) organizations and their donors, use single member limited liability companies (SMLLCs) for a variety of purposes. Exempt section 501(c)(3) nonprofit organizations—to be referred to as charities—that have a number of facilities, such as schools, hospitals, or real estate investments, may form a separate SMLLC for each of them, primarily to protect other assets from liability. Charities may wish to place an activity with a high risk of environmental or tort liability, such as an overnight summer camp, in its own SMLLC. SMLLCs may be used to isolate unrelated business activities from related activities or risky investments from more traditional ones. They may also be used to isolate risky investments from more conservative ones.

An SMLLC leads a schizophrenic existence. Although an entity under state law, it is disregarded for most purposes under federal tax law. Furthermore, the leading theoretical approaches to LLCs and to nonprofit organizations stand in sharp contrast to each other, particularly regarding the ability to rely on contract. These very different sets of applicable law and theory allow for regulatory arbitrage, which involves taking advantage of inconsistencies between the applicable rules.

LLCs, including SMLLCs, have the choice of being member- managed or manager-managed. To ensure the greatest liability protection, the member of an SMLCC may choose for it to be manager-managed. Some LLC statutes, most importantly Delaware’s statute, permit the SMLCC to waive fiduciary duties. Charities, however, cannot waive fiduciary duties. This divergence in applicable rules regarding fiduciary duties could lead to conflict between the member charity and its SMLCC, such as pursuing activities inconsistent with the charity’s exempt purpose or engaging in campaign intervention. To avoid such conflict, this Article recommends that the IRS issue guidance requiring control of the SMLCC by the charity, as it has done in the context of charitable contributions to a charity’s SMLCC.

You Can’t Lock the Doors! Are Lenders Powerless to Stop Zombie Properties In Lien Theory States?
Timothy M. Harris
In Jordan v. Nationstar Mortgage, the Washington Supreme Court effectively eliminated a lender’s ability to change the lock on a house after a borrower has defaulted on a loan—even to secure and protect the lender’s interest in the property—regardless of whether such limited entry is contractually permissible or whether the property is vacant. The case represents a significant development in the law of Washington and may reverberate to the many states with lien theory statutes like Washington’s. Jordan may have the unintended consequence of harming lenders, borrowers, and neighborhoods by furthering blight, increasing crime, devaluing property, and preventing lenders from maintaining vacant and deteriorating homes.

This Article analyzes the Jordan case and looks at how other jurisdictions handle vacant houses in default. Ultimately, the author rejects the court’s reasoning, generally agrees with the dissent’s analysis, and advocates for legislative fixes that leave defaulting property owners with the right to possess their property after default and prior to foreclosure, while also allowing the lender to protect its interest in vacated property and to curb the proliferation of zombie properties.

New Perspectives on Planned Unit Developments
Daniel R. Mandelker
Planned unit developments, also called planned communities, are a major development type. Originally cluster housing projects with common open space, they can be planned today as infill in downtown areas or as a major master-planned community. They require discretionary review, are often dominant in the zoning process, and present a challenge to the zoning system. A threshold question is how municipalities should zone for planned unit developments, and this Article discusses conditional use, base zone, and rezoning alternatives. This Article next discusses the zoning review process for these developments, which must operate fairly and produce acceptable decisions. Alternatives that can avoid or supplement discretionary review are considered next, and this Article concludes with a discussion of affordable housing as a social responsibility.

Till Death Do Us Part. . . . But What About Our Property? Giving Abused Spouses Their Inheritance Rights Back
Michelle E. Loakes
The American legal system often divides the criminal and civil law. However, in the realm of family violence, the crossover is inevitable. The slayer rules encompass this complex circumstance. The slayer rules confront complex crimes where the murderer is a close family member of the victim and the victim has bequeathed part or all of his estate to his killer. A murderer to the criminal court is an unworthy heir to the probate court. But what happens when that murderer is also subject to domestic abuse of the person whom they murdered? Under criminal law, she may be deemed not guilty by reason of temporary insanity. But under the current slayer rules, she is still an unworthy heir—a “slayer.” This Article argues that legislatures should codify the temporary insanity exception to the slayer rule to allow abused spouses to inherit from their abusers’ estates. After all, their abusers never took care of them to begin with. Now they can.


Spring 2017, Vol 52, No 1 (Full PDF)
These articles are available to download for ABA RPTE members only. To access them, join us today!

Making Divorce Less Taxing: A Unique Opportunity for Income, Estate, and Gift Tax Planning
Justin T. Miller
Divorce often is an emotionally traumatic experience, and dealing with tax considerations in divorce only adds to the psychological burden. However, addressing the unique tax issues that arise in divorce should be an integral part of the marital dissolution process. The problems that can result from poor tax planning may not surface until months or even years after a divorce, and attempts to fix those problems—if even possible—may be extremely difficult, time-consuming, and expensive. To help plan for taxes during a divorce and avoid various traps for the unwary, this Article addresses ten common issues that should be considered during the marital dissolution process, especially when working with high net worth spouses who typically have more complicated income, estate, gift, and generation skipping transfer tax planning needs.

The New Uniform Digital Assets Law: Estate Planning and Administration in the Information Age
Michael D. Walker
The "Information Age" has significantly changed the estate planning process by adding digital assets to decedents' estates. This Article examines the definition of digital assets, as well as the state and federal laws affecting digital assets. It also provides estate planning attorneys with advice on how to deal with digital assets in estate planning and administration.

The Restricted Charitable Gift as Third-Party-Beneficiary Contract
William P. Sullivan
Although American law has traditionally barred the donor of a restricted charitable gift from enforcing the terms of his or her gift, most American jurisdictions now permit donors to enforce gift restrictions under at least some circumstances. The nature and extent of the right of enforcement, however, remain uncertain. This Article argues that the uncertainty surrounding enforcement is best resolved by treating restricted charitable gifts as third-party-beneficiary con-tracts. The Article presents a contractarian analysis of restricted charitable gifts, subjects alternative analyses to conceptual and practical critique, and suggests several modifications to the American Law Institute's forthcoming Restatement of the Law of Charitable Nonprofit Organizations to facilitate appropriate contractual interpretation of restricted-charitable-gift instruments.

The Private Trust Company: A DIY for the Uber Wealthy
Christopher Weeg
This Article focuses on the rise of private trust companies and how estate planners and settlors can use them while avoiding adverse tax consequences. In this analysis, this Article will explore the history, structures, tax consequences, and other considerations in using private trust companies. Furthermore, this Article will survey the laws of different states that have adopted legislation enabling private trust companies, and it will analyze the differences among them.

Summer 2017, Vol 51, No 3 (Full PDF)
These articles are available to download for ABA RPTE members only. To access them, join us today!

Credit-Agreement Statutes Revisited: Are Equitable Defenses Permitted?
John C. Murray
Within the last three decades, there has been a surge in lender-liability claims against mortgage lenders. In response to this surge, many states have enacted credit-agreement statutes to protect these lenders from claims of oral modification of loan agreements. This Article covers the history and the rise of such state credit-agreement statutes and how courts have interpreted them. This Article focuses on the courts' inconsistent interpretations of whether equitable claims and defenses such as equitable estoppel, waiver, partial performance, and bad faith are available to borrowers. Additionally, this Article analyzes the Illinois Credit Agreements Act and how Illinois courts have interpreted it. Lastly, this Article covers the proposed ABA "Model Lender Liability Limitation Statute" and discusses its stance on equitable defenses.

Land Use Law and Sidewalk Requirements under the Americans with Disabilities Act
Robin Paul Malloy, Sarah Spencer & Shannon Crane
A significant percentage of American families have a family member with a mobility impairment. The numbers will increase as our population continues to age. Therefore, it is important to focus on accessibility so that people can safely and easily navigate their local communities. This Article deals with the legal obligation to make communities accessible under the Americans with Disabilities Act (ADA). Specifically, this Article addresses the intricate regulations applicable to sidewalks. Local communities must construct, repair, and maintain sidewalks in compliance with the ADA. This obligation includes removing obstacles to accessibility such as snow, even in snow-belt communities that would prefer to avoid the cost of snow removal.

The Intersection of Trusts and Anti-Trust: Why You, an Estate Planner, Should Care about Hart-Scott-Rodino
Jay D. Waxenberg & Jason A. Lederman
This Article addresses how the Hart-Scott-Rodino Antitrust Improvements Act (HSR) affects estate planning transactions and how estate planners might resolve issues arising out of HSR. This Article also discusses the principles and the law under HSR. To help estate planners better understand the provisions of HSR, this Article briefly covers the key terminology, the coverage, and the exemptions of HSR. Additionally, this Article analyzes the application of HSR to Grantor Retained Annuity Trusts (GRATs) and other irrevocable trusts. Lastly, this Article discusses public policy and provides suggested changes to HSR.

Using Equity To Aid The Exercise Of A Power Of Appointment that Fails To Specifically Refer To The Power
Kenneth W. Kingma
An estate plan today often grants a power of appointment that contains a specific reference requirement, which requires the donee of the power to specifically refer to the power when exercising it. Sometimes a dispute arises over whether an attempted exercise of a power of appointment satisfied a specific reference requirement. Such disputes often involve a blanket exercise clause in the donee's estate plan that attempts to exercise all of the donee's powers of appointment. This Article examines the common law equitable rule that aids an attempted exercise of a power of appointment by not requiring rigid compliance with a specific reference requirement. This Article also examines how three Restatements of Property and the Uniform Powers of Appointment Act have summarized and applied the equitable rule.

Basics of Firearm Transfers for Estate and Probate Lawyers
Benjamin Dean
Estate planners and probate lawyers are currently unaware of the issues concerning firearms in estates and the potential criminal penalties associated with failure to comply with the appropriate transfer requirements. With firearm ownership in the United States at an all-time high, it is crucial that attorneys become familiar with these laws to enable their clients to pass on their assets without fear of criminal prosecution and to protect the attorneys themselves from civil or criminal liability. This Article provides detailed information concerning the law of firearms transfers, how it interacts with both estate planning and probate work, as well as practical issues, and pitfalls that attorneys should be prepared to advise their clients.