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Notestine Law: Three decades of experience in the real estate business

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Notestine Law: Hot Topics

Sunday, August 31, 2014

Consumer Financial Protection Bureau (CFPB)

In an attempt to avoid the mortgage lending meltdown of the 2008-2011 era, the Federal Government created the CFB, which appears to have broad powers to investigate and , in some cases, promote rues and regulations in a large variety of residential lending, title insurance, debt collections and credit granting fields. The full impact of this Bureau is still not ascertainable. An example of its powers is the adoption of an "Ability to Repay Rule' which went into effect on January 10, 2014. It supposedly protects consumers  from debt traps by mortgage lenders. It requires lenders to look at customers income, assets, savings and debt and weigh those against the monthly payments over the long tem . Again the net effect of this rule is still to be determined but there seems to be some delay in residential funding in some instances and some additional appraisals being required before loans are approved. This seems to be another attempt by Washington to be involved in  and regulate the real estate industry and lender activity at the state level.

Trust Law changes

Effective July 1, 2013, Tennessee enacted certain change to Tennessee's Uniform Trust Code. The changes are too numerous to mention in a short Blog, but changes that may be of interest to real estate investors are: 1) changes on the definition of creditors rights 2) limited liability for the trustee of a trust to creditors of a beneficiary 3) reduces the timeframe in which a creditor  can claim a transfer to a trust is fraudulent 4)allows the trustee to pledge assets to secure a loan to a beneficiary 5) defines the roles and rights of a trust protector and trust advisors. The changes made are comprehensive  and you should consult your legal advisor if you have an interest in trust law.

Federal Tax on Investment income

This office does not provide tax advice and this is not really a brand new topic but I wanted to remind some successful investors that  the Federal Government implemented a 3.8 percent tax on certain investment income that could affect some real estate investors. The new tax was effective January 1, 2013. This tax was related to the health care and Medicaid overhaul  in 2010. This could have some impact on investors with adjusted gross incomes of $200,000 for individuals and $250,000 for couples . I urge you to see your tax adviser if you have questions about this tax, which some people refer to as " The Medicare Tax".

Sunday, February 24, 2013

Deficiency Judgments following foreclosure in Tennessee

Due the the rash of foreclosures in recent years, particularly with commercial and  investment real estate loans, a rash of deficiency judgment actions are taking place in the courts. A little known amendment to Tennessee Code Annotated 35-5-118 effective in 2010 has caused lenders and borrowers to scratch their heads about how to calculate if a property sold for materially less than the fair market value at foreclosure sales.The basic law states that the sale price paid by the creditor is presumed to be equal to the fair market value of the property at the time of sale.If facing a deficiency judgment suit, the borrower must prove by a preponderance of the evidence that the property sold for an amount materially less  than the fair market value at the time of the sale. Unfortunately , the legislature has kept us guessing on what materially less means.Two appellate court cases have attempted to define this and the courts appear to be heading in the direction that a sales price equal to 80-86 % of the proven fair market value is not materially less than the fair market value. Watch for legislation as to this issue in an attempt to define what materially less is or is not.

Tennessee Tax Sale Clarifications

I have had several inquiries about past "Hot Topics" articles on Tennessee real property tax sales. Two of the more perplexing parts of the process are the redemption period and when a sale is "final" in the sense that the rights of claimants to title are blocked. I will attempt to clarify these issues. Tennessee Code Annotated 67-5-2702 states that in order to redeem a property lost at sale , a person or entity entitled to redeem property may do so by paying the required sum to the clerk within one year from the date of confirmation of sale. Buyers at sale sometimes seem confused about how a lender can redeem. Depending on the circumstances of the loan, lenders are often "persons" entitled to redeem by state law. If redemption occurs, the buyer at the tax sale has thirty days from the date of tender of redemption money to file a claim for additional compensation to the purchaser ( TCA 67-5-2704). These claims can include, taxes paid and sums expended  to preserve the value of the property.

The clerks office will often cite the one year redemption period as being a final step in the process. That is because the clerk's office is often not very involved in post redemption processes. However, suits to invalidate any tax title can be brought within three years from the time of sale (TCA 67-5-2504).These claims involve litigation and the court will decide whether the sale was valid. I have seen some sales set aside by this process. If you are a tax sale purchaser and are looking for some type of finality to your purchase the three year date is the date you want to see pass.

Tuesday, April 12, 2011


Over the years I have received many questions about land trusts. Among the questions are: Are they effective for asset protection? Do they hide the owner’s identify? Can I assign the beneficial interest in the trust? Who should be my trustee? It eventually dawned on me that the questions seemed to show a need to enhance people’s understanding of land trusts. In this article, I am attempting to provide a brief description of what land trusts are and to weigh the pros and cons of the use of land trusts in Tennessee by real estate investors. I hope this information is of use to the readers.

I see two types of land trusts in Tennessee. The first type of land trust is not the subject of this article. This is the Conservation Land Trust which is used to preserve, in perpetuity, agricultural, forest, woodlands and historic properties and land in this state. The second type of land trust is modeled on what is often call an “Illinois” land trust. This type of trust originated in Chicago in the latter part of the 19th century. City officials who wanted to be involved in commercial real estate development desired to have some type of “blind” trust to hide their interest in real estate projects. The Illinois Supreme Court held that these trusts are valid if the trustee has at least has some minimal purposes. The use of land trust has spread to other states in recent years.

Illinois and at least five other states have enacted statutes that specifically identify and adopt this type of trust. Tennessee has not enacted such a statute. The Tennessee law on trust is more flexible than those of many states and although some people feel that land trusts are illegal or are not trusts, I see no authority for these positions. The IRS does consider land trusts as “sham” trusts for tax purposes in that it does not recognize the trust as an independent taxable entity from the beneficiary. However, I have found no legal prohibition of land trusts in Tennessee.

Tennessee has adopted the Tennessee Uniform Trust Code found at Tennessee Code Annotated 35-15-101 et. seq. This statute requires the Trustee to have duties to perform and that the same person is not the sole Trustee and the sole beneficiary. This is not a problem I have encountered in most land trusts. I have seen Land Trust Agreements normally define the role of the Trustee and give the Trustee some limited role. The requirements for creation of a trust are specified in T.C.A. 35-15-402. My review of the above statues leads me to believe that if the Trustee had no role whatsoever, the trust might not be considered to be a valid trust in Tennessee. Otherwise, most land trusts seem to meet the criteria to be considered as some form of trust in Tennessee.

The typical land trust includes a Grantor, a Trustee and one or more beneficiaries. The Grantor is often the property owner or the seller to the trust. The trustee is usually a separate person or entity familiar to the beneficiary. The beneficiary is the investor/owner. Title is held by the Trustee as a fiduciary for the Trust. The Trust is normally given a name of the street on which the property is located or may even contain the name of the Seller(s). It could also be named by almost whatever name the investor wants to use to suit his/her purposes. It usually does not contain the name of the beneficiary/investor. There can be multiple beneficiaries or the beneficiary can also be an LLC, corporation or other entity.

The land trust is beneficial to investors in that it hides the identity of the beneficiary who controls the Property and the trustee. The Trust Agreement is not recorded. The deed to the Trust names the trust but it does not mention the beneficiary. The deed usually shows the address of the trust as being a post office box or UPS store address or similar facility. It provides some protection from legal liability in that it is difficult to find the identity of the beneficiary. However, it is not foolproof. If a creditor “pierces” the trust through legal process and discovery, the identity of the beneficiary can be exposed and his or her assets can be attached unless the beneficiary is an LLC or other limited liability entity. Land Trusts usually permit for assignment of the beneficial interest which can change transfer and control of real estate without a recorded instrument. Another advantage of the land trust is that a separate trust can be set up for each property you own. This spreads out the risk among various trusts, which is a goal of many investors. Many investor use an LLC or corporation as the beneficiary to protect other personal assets.

A disadvantage of the land trust is that they are not understood by most lenders. Also, lenders generally want a copy of the trust agreement. If you give this to a lender, the structure of the trust is known to them and this may diminish the value of the trust and its ability to protect assets and the identity of the beneficiary. Another disadvantage is that unless the beneficiary is a limited liability entity, the beneficiary and his or her assets may be exposed to creditors who are able to learn the identity of the beneficiary. Finally, it is difficult to find a reliable trustee or even anyone that wants to serve and for this reason I often recommend forming a corporation to do nothing but to serve as trustee of your trust or trusts.

Land Trusts are another tool in the arsenal of the real estate investor. They are not for all investors. I have found that they work best when the investor owns the property outright or participates in a “subject to” transaction. They are also beneficial if you intend to hold the property for long periods of time. They are less useful if you intend to refinance on a frequent basis. Don’t utilize this form of ownership unless you fully study and comprehend the pros and cons of trust ownership. Seek independent tax, legal and insurance advice before using this form of ownership.

I hope this article will be of use to you and I will be glad to answer any questions you may have at my e-mail address at or

© Robert J. Notestine III, 2011


Tuesday, August 17, 2010

Attack on Single Member LLC's

Recently, I have received calls or e-mails about single member LLC's and whether a recent judicial decision has softened the liability shield surrounding LLC's. The case many people seem to be referring to is Olmstead v. Federal Trade Commission decided by the Florida Supreme Court on June 24, 2010. Although this may be persuasive authority looked at by the Courts in this state it is not binding in this state and is currently not the law of this state.Two justices dissented to this opinion so there is clearly a division of opinion in this case. For those persons still worried about the asset protection features of LLC's , it is my opinion that they still are very effective in this state and can be combined with various trusts or agreements to increase asset protection. Some investors may also want to explore Nevada or Wyoming LLC's.

Attention: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Not certified as a Real Estate or Business Law specialist by the Tennessee Commission on Continuing Legal Education and Specialization. Certification in these areas of law are not currently available in Tennessee.

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