Ask the TITLEMAN™ - Trusts; Divorce; Access to Property
by John T. Lotardo aka TITLEMAN™-Sr VP/General Counsel, Stewart Title & Trust of Phoenix
Q. I have some questions regarding properties held by a trust. We normally require a copy of the trust to see who the trustee(s) is/are and what powers the trustee(s) has/have. We’re running into a borrower now who is very hesitant in giving us a copy of his trust. We’re thinking in lieu of this we could offer to record a certificate of trust for him and then he wouldn’t have to submit a copy in the future. Does that make sense? We also have a generic affidavit of trustee signed at closing- is that enough to insure a deed of trust executed by trustees on behalf of a trust? Aren’t we requesting too much already?
A. We normally do not require copies of a traditional “mom and pop revocable trusts” so long as the original mom and pop trustee are still living and still are acting as trustees. But keep in mind that many lenders require the trustees to deed out of trust before lending. Arizona Revised Statutes Section 33-404 does require that the beneficiaries name and addresses be disclosed in any deeding so please make a note of that. As far as a Trust Certification, I would use.
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Q. We have a buyer who is in the process of a divorce. We want to know if we have to have a disclaimer deed or can we get around that. I guess they either can’t or don’t want to get a deed for the ex. The lender is concerned that they could have problems if they need to foreclose.
A. The concern of the lender is well taken but already addressed by Arizona Law. The statutes in Arizona permit the acquisition and encumbering during the pendency of the divorce by one without the need of a deed from the soon to be ex- spouse. If the two get back together the lender should be able to foreclose on the property as if the non-signing signed.
Q. My husband and I bought some vacant land that has a dirt road to the property that is not recorded access. According to our neighbor, the people who used to own the property that we drive over were going to sign to give access to our property and the property next to of us. But they have now sold the property and the new owners want $$$ to give us access. Is there anything that is grandfathered in since the road has been used for a number of years? We do have recorded access to the north but would have to put the road in. Thanks for your time.
A. The issue is how long have you and your seller used the road for access to the property? If it was for ten years or more, was, open, obvious and not as a result of permission (notorious) you could argue that by adverse possession, you have been granted access. A little investigative work could pay off before you start paving that new road north. Perhaps getting notarized statements from your seller about his previous use may prove helpful. Good luck!
The information supplied is of a general nature and should not be relied upon as legal advice. You should consult with your own legal counsel. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Copyright John T. Lotardo. All rights reserved. John Lotardo (aka the TITLEMAN™) is Senior Vice-President and General Counsel for Stewart Title & Trust of Phoenix, Inc., and State Underwriting Counsel for Stewart Title Guaranty Company. He is a member of the National Advisory Councils for GoGetEscrow.com, GoGetLoan.com, GoGetNotary.com and GoGetRealEstate.com. The information supplied is of a general nature and should not be relied upon as comprehensive legal advice. Please consult with your own local legal counsel. For more about John, visit: www.GoGetEscrow.com/Get/Titleman or www.AskTheTitleman.com.