A PLACE TO BE
Tuesday, August 10, 2010
OWNERSHIP
At the August 2009 Coffee Meeting the Board admitted confusion on Village ownership while revising the Rec. Hall rules and rates. The meeting ended with the Board saying that they would work to clarify this. Now after a year, many feel it’s time.
Dealing with an owner eligibility situation months prior to this August confusion, the 2009 Election Committee exclusively used the Village Attorney's opinion saying that our Village Bylaws describe a Life Estate remainderman as being a current owner who’s eligible for a director’s position.
Does one have to be a current Village owner in order to be a director? The Declaration of Covenants and Bylaws are vague, but first sentence we see on a director’s application is pretty clear when saying “I, AS LIVOA OWNER, WOULD LIKE TO….”
This opinion by this attorney was not supported by a salvo of pages containing irrefutable facts surrounded by plain examples. There were no legal like paradigms articulated within neither a one page dossier nor even a middling paragraph. Her undemanding view was supported by the single word “Vested" from Article II Section 2 of our Village Bylaws. Since “vested” has so many senses, we contend it was used catachrestically to form the view she expressed.
Article II Section 2 reads; “Transfer of Unit ownership, either voluntary or by operation of law, shall terminate membership in the Corporation, said membership is to become vested in the transferee. If Unit ownership is vested in more than one person, then all of the persons so owning said Unit shall be members eligible to hold office, attend meetings, etc., but as hereinafter indicated, the vote of a unit shall be cast by the “Voting Member." If Unit ownership is vested in a corporation, etc.
Each sentence clearly uses “Vested” as a verb (verb sense ="changing hands"). Since Vested does not modify any noun in these sentences, it seems odd that Counsel thinks "vested" is an adjective (adjective sense ="without contingency") and somehow surmises it reads that if a Life Estate remainderman's remainder interest is vested, then that person is eligible to run for director. The sentence in Article II Section 2 does not read “If Unit ownership has vested interest in more than one person" (vested interest=no contingency of a legal right to claim property). It reads “If Unit ownership is vested in more than one person" (vested=changing hands).
Reference
The three “Vested “words used in Article II Section 2 are verbs that mean; “To transfer, change of hands, or change owners” (e.g. the property vests in the trustees)
See sites:
Does one have to be a current Village owner in order to be a director? The Declaration of Covenants and Bylaws are vague, but first sentence we see on a director’s application is pretty clear when saying “I, AS LIVOA OWNER, WOULD LIKE TO….”
This opinion by this attorney was not supported by a salvo of pages containing irrefutable facts surrounded by plain examples. There were no legal like paradigms articulated within neither a one page dossier nor even a middling paragraph. Her undemanding view was supported by the single word “Vested" from Article II Section 2 of our Village Bylaws. Since “vested” has so many senses, we contend it was used catachrestically to form the view she expressed.
Article II Section 2 reads; “Transfer of Unit ownership, either voluntary or by operation of law, shall terminate membership in the Corporation, said membership is to become vested in the transferee. If Unit ownership is vested in more than one person, then all of the persons so owning said Unit shall be members eligible to hold office, attend meetings, etc., but as hereinafter indicated, the vote of a unit shall be cast by the “Voting Member." If Unit ownership is vested in a corporation, etc.
Each sentence clearly uses “Vested” as a verb (verb sense ="changing hands"). Since Vested does not modify any noun in these sentences, it seems odd that Counsel thinks "vested" is an adjective (adjective sense ="without contingency") and somehow surmises it reads that if a Life Estate remainderman's remainder interest is vested, then that person is eligible to run for director. The sentence in Article II Section 2 does not read “If Unit ownership has vested interest in more than one person" (vested interest=no contingency of a legal right to claim property). It reads “If Unit ownership is vested in more than one person" (vested=changing hands).
Reference
The three “Vested “words used in Article II Section 2 are verbs that mean; “To transfer, change of hands, or change owners” (e.g. the property vests in the trustees)
See sites:
Reference
The word “Vested” used in the attorney’s opinion is an adjective meaning; “Fixed, absolute, or without contingency, e.g. A vested right."
See site:
The word “Vested” used in the attorney’s opinion is an adjective meaning; “Fixed, absolute, or without contingency, e.g. A vested right."
See site:
Below is overwhelming information that proves a Life Estate remainderman owns only an undeniable inheriting right to property in the yet unfulfilled future.
You will find that there are always two distinct and separate property possessions in a life estate (present & future), with future ownerships staying vested with the remainderman until a certain event happens, usually the death of the present property possessor called the Life Tenant. Every reference has their web site for its authenticity.
Aged exemption (ownership requirement) (remainderman) — Real Property Tax Law, § 467:
Since the holder of a life estate is deemed the owner of real property for purposes of taxation, and the remainderman has only a future interest in the property, which will ripen into ownership only on the death of the life tenant,
You will find that there are always two distinct and separate property possessions in a life estate (present & future), with future ownerships staying vested with the remainderman until a certain event happens, usually the death of the present property possessor called the Life Tenant. Every reference has their web site for its authenticity.
Aged exemption (ownership requirement) (remainderman) — Real Property Tax Law, § 467:
Since the holder of a life estate is deemed the owner of real property for purposes of taxation, and the remainderman has only a future interest in the property, which will ripen into ownership only on the death of the life tenant,
We have previously stated that a life tenant should be considered the title owner for purposes of determining eligibility for this exemption (1 Op.Counsel SBEA Nos. 34 and 59); these opinions are in keeping with a series of judicial determinations that a life tenant is deemed the owner of the property so held by him for taxation purposes.
One such judicial decision is found in the case of In re McCarty's Estate, 158 Misc. 287, 285 N.Y.S. 641. There the court stated (at p. 642):
It is familiar law that during his life the life tenant is the exclusive owner of the land so held by him, with the exclusive right to its possession, control, and enjoyment, subject only to certain well-defined limitations or duties; the owner of the reversion or remainder in fee has no present right of enjoyment, no tangible and physical ownership of the land, but has a future incorporeal interest or estate in the land which will ripen into ownership of the land itself on the death of the life tenant. By statute it is provided that a life estate shall continue to be termed an estate freehold. Real Property Law, § 33. (emphasis supplied)
http://www.orps.state.ny.us/legal/opinions/v4/57.htm
North Carolina Bar Association
Elder Law Section
Remainder interests
If you own a remainder interest, you are called the "remainderman." A remainder interest is a future interest. For example, the person who inherits a remainder interest does not have a right to possess or use the property until the life estate ends, usually upon the death of the life tenant.
http://www.ncbar.org/download/planningYourEstate/property_ownership.html#Life%20estates
U.S. Department of Agriculture. Jack M Payne, director, Cooperative Extension Service, Iowa State University of Science and Technology, Ames, Iowa.
Life Estate is created when a property owner deeds property to an heir but first reserves a life es¬tate for a third party. The recipient of the life estate owns the property for the duration of his/her life but cannot transfer the property upon death because it has already been deeded to an heir. Property owned in life estate will avoid probate because the owner has no right to transfer the property on death; however, because the owner had full use and enjoyment of the property during life, it will be included in his/her taxable estate. The heir ac¬quires legal interest in the property after the death of the owner of the life estate. The heir is called a “remainderman” and his/her remainder interest can be pledged, transferred, or attached. Also, the remainderman acquires a stepped-up basis on the death of the life tenant.
http://www.extension.iastate.edu/bfc/pubs/BFC8RealProperty.pdf
By Law Offices of Linnea J. Levine, P.C.
A remainderman is a person who inherits or is entitled to inherit property upon the termination of the estate of the former owner.
A legal life estate in real property can be created by conveying the property by a deed which carves out the life estate for the grantor and creates a "remainder interest" (Def. commercial law interest in somebody else's estate: an interest in an estate that passes to somebody only after a prior interest terminates, e.g. when the current holder of the estate dies) by which the "remaindermen" receive full ownership (fee simple) immediately upon the death of the life tenant (grantor).
The life tenant remains the owner for purposes of real property tax administration, and therefore continues to qualify for the STAR exemption, veteran's benefits, and any other property tax reduction available to the "owner" of the property.
http://library.findlaw.com/1999/Sep/1/130818.html
Life Estate is created when a property owner deeds property to an heir but first reserves a life estate for a third party. The recipient of the life estate owns the property for the duration of his/her life but cannot transfer the property upon death because it has already been deeded to an heir. Property owned in life estate will avoid probate because the owner has no right to transfer the property on death; however, because the owner had full use and enjoyment of the property during life, it will be included in his/her taxable estate. The heir acquires legal interest in the property after the death of the owner of the life estate. The heir is called a “remainderman” and his/her remainder interest can be pledged, transferred, or attached. Also, the remainderman acquires a stepped-up basis on the death of the life tenant.
http://www.extension.iastate.edu/bfc/pubs/BFC8RealProperty.pdf
From Wikipedia, the free encyclopedia
A life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death. The owner of a life estate is called a "life tenant". At death, the property involved in a life estate typically falls into the ownership of the remainderman named in the life estate agreement. http://en.wikipedia.org/wiki/Life_estate
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group
A vested remainder is a future interest to an ascertained person, with the certainty or possibility of becoming a present interest subject only to the expiration of the preceding property interests. For a remainder to be effective, it must be contained in the same instrument of conveyance (document, such as a deed) that grants the present interest to another person.
http://legal-dictionary.thefreedictionary.com/Remainder
The Life Estate Deed Elder Law & Estate Planning Law Offices of Brian T. Treacy, LLC by Brian Treacy - Posted on 15 February 2009
A typical Life Estate deed legally transfers the future ownership in real estate, and reserves rights of current ownership in the person making the conveyance. This is different than an outright transfer where no strings attach to the person making the conveyance. A “life estate” is similar to the concept to a timeshare. With a timeshare, a person owns the right to use property during a designated period of ownership. An owner of a life estate has the right to live in the property for a lifetime. The lifetime right automatically terminates upon death when persons designated in the deed become outright owners.
A Life Estate Deed used for basic Estate Planning is a way to transfer ownership of property at death in the same way one might want to in a Will. The benefit of this transfer is that the Life Estate deed AVOIDS PROBATE. Thus, it is a simple, and inexpensive, way to transfer ownership of the home at death.
From Wikipedia, the free encyclopedia
A remainderman is a person who inherits or is entitled to inherit property upon the termination of the estate of the former owner.
http://en.wikipedia.org/wiki/Remainderman
Life Estate Ownership of Real Estate
Law Offices of Susan M. Mooney, P.C. By Attorney Susan M. Mooney
With a Life Estate form of ownership of real estate there are two separate categories of owners of the property:
Life Tenant Owner:
The Lifetime Owner of the property with absolute and exclusive right to use of the property during their lifetime, which expires automatically upon the death of the last to die of the Life Tenant(s). The Life Tenant can be one individual or there can be joint Life Tenants. The Life Tenant remains responsible for real estate taxes, insurance, and ordinary maintenance costs related to the property. The Life Tenant is entitled to all income from the property in the event that the property is rented. In the event the Life Tenant no longer wishes to reside at the property, or if they are unable to reside there, the property can be rented and the rental income is the rightful property of the Life Tenant. If the property is a multifamily dwelling, all rental income is payable to the Life Tenant Owner.
Remainder Owner:
The Remainder Owner(s) automatically become owner(s) of the subject real estate immediately upon the death of the last to die of the Life Tenant Owner(s). The Remainder Owner has no right to use of the property or income from the property during the Life Tenant’s lifetime. The Remainder Owner is not responsible for payment of taxes, insurance, or maintenance of the property during the Life Tenant’s lifetime. The Remainder Owner may be one individual, or more than one person.
http://www.susanmooney.com/estate-link5.htm
Encyclopedia Britannica –subject Remainder property law
In Anglo-American law, a future interest held by one person in the property of another, which, upon the happening of a certain event, will become his own? The holder of this interest is known in legal terms as a remainderman.
http://www.britannica.com/EBchecked/topic/497527/remainder
From “All Business” a D&B company By Kosty, Lauren Publication: The Tax Adviser Date: Thursday, November 1 2007
Gifting a remainder interest requires the property ownership to be divided into two separate interests: a life estate and a remainder interest. A life estate gives the holder the power to retain ownership until death. If the taxpayer is married, the life estate can be structured to last until the second spouse’s death. A remainder interest gives the holder the right to take ownership when the life estate has ended.
http://www.allbusiness.com/legal/tax-law-income-tax/5524079-1.html
American Commercial Law Series, by Alfred W. Bays
Sec. 77 The Vested Remainder
A vested remainder is one, the right to enjoy which (after the termination of the particular estate) has already become certain.
http://chestofbooks.com/business/law/American-Commercial-Law-Series/Chapter-12-Estates-In-Remainder-And-Reversion-And-Executor.html
Lawyers.com
A life estate can help to avoid probate and ensure that the intended heir gets the property. It also has certain tax benefits, such as reducing estate tax and other taxes.
A life estate gives you the right to live in, use and enjoy property during your lifetime. The person granted the life estate is called a life tenant. The person granting the life estate and the actual owner is called the grantor. For the tenant, the ownership in this type of property is temporary and ends upon death. Therefore, the property can't be left to the life tenant's heirs. Where does the property go? It goes back to the grantor or someone else that the grantor designates.
Remainder interests are future interests in property. For example, Victor decides to give Bob a life estate, and Carolyn a remainder interest in his property. What will happen? Bob will get to use the property for life and when he dies Carolyn gets ownership of the property.
http://wills-probate.lawyers.com/Life-Estates.html
US LEGAL.com
"Remainder interest” In general terms, a remainder interest refers to someone with a future interest in an asset, a vested interest that becomes effective at a specified future date.
"Remainder interest" (Def. commercial law) interest in somebody else's estate: an interest in an estate that passes to somebody only after a prior interest terminates.
http://definitions.uslegal.com/r/remainder-interest/
Roger McEowen, Leonard Dolezal Professors in Agricultural Law, (515) 294-4076.
A common estate planning technique involves the use of a life estate coupled with a remainder. Under this arrangement, a person leaves property to someone else for life (known as the life estate holder) with the property passing to another person (known as the remainder holder) at the death of the holder of the life estate.
A remainder interest is a future interest. That means the remainder interest holder has an interest in the property, but does not yet have possession of the property.
http://www.extension.iastate.edu/agdm/articles/mceowen/McEowOpinionsOct06b.html
Texas Administrative Code- Title 1 ADMINISTRATION- Part 15 TEXAS HEALTH AND HUMAN SERVICES COMMISSION- Chapter 358 MEDICAID ELIGIBILITY- Subchapter D RESOURCES- Rule 358.441 Real Property
(1) Life estates. A life estate provides a person, for the person's lifetime, certain rights in a property, while transferring ownership of the property to another person. The duration of a life estate is measured by the lifetime of the owner of the life estate, or by the occurrence of some event. The contract establishing a life estate, however, may restrict one or more rights of the owner of the life estate. The owner of a life estate does not have fee simple title to the property nor the right to sell the entire property. In most situations, the owner of a life estate has the right to:
(A) Possess the property;
(B) Use the property;
(C) Get profits from the property; and
(D) Sell his or her life estate interest.
(2) Remainder interest. A remainder interest, which is created when a life estate is established, gives a person owning a remainder interest the right to ownership of the property upon the death of the owner of the life estate.
http://secure.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=1&pt=15&ch=358&rl=441
(2/18/99); 1-26 Matthew Bender & Co., California Wills & Trusts § 26.07.)
In general, the creation, transfer or termination of a life estate is a change in ownership. (Rule 462.060, subdivision (a).) Any vesting or right to possession or enjoyment of a remainder interest, which occurs upon the termination of a life estate or other similar precedent property interest (except as provided in subdivision (d) of section 62 and section 63) is a change in ownership unless an exclusion applies. (Rev. & Tax. Code, § 61, subd. (g).)
http://www.boe.ca.gov/proptaxes/pdf/220_0457.pdf
Published in Massachusetts Lawyers Weekly, June 23, 2003.
Perhaps there is one thing that is simple about a life estate – the life tenant’s “estate” (the right of possession, rents, or “profits” from the property) lasts for the duration of the measuring life, but that is about the extent of its simplicity.
Remaindermen generally do not have the right to partition since they do not have a possessory interest.
http://www.bovelanga.com/publications/news_briefs/trusts_and_estates_forum/Trusts%20and%20Estates%20The%20Meaning%20of%20Life.pdf
Principle of Property Law by Samantha J. Hepburn-The Doctrine of Tenure and Estates
A remainder interest could not take effect prior to the natural determination of the prior freehold estate. A remainder interest is a successive rather than a primary interest. It can only take effect in the future when the prior limited estate has been extinguished naturally. The justification for this is that a reminder interest cannot interfere with or interrupt the ownership of the prior estate.
http://books.google.com/books?id=DK-UtVNRfO8C&pg =PA59&lpg=PA59&ots=uIv2QZIUDs&dq=remainder+interest+law&output=html
Other Free Encyclopedias :: Law Library - American Law and Legal Information :: American Law Encyclopedia Vol. 8
A vested remainder is a future interest to an ascertained person, with the certainty or possibility of becoming a present interest subject only to the expiration of the preceding property interests. http://law.jrank.org/pages/9756/Remainder.html
The Supreme Court of Colorado recently reached the same conclusion in Beach v. Beach, 74 P.3d 1 (Colo. 2003), holding that partition could not lie by a life tenant against the remaindermen:
Partition applies only to concurrent interests, meaning interests that are held simultaneously in time. Thus, a present life estate cannot be partitioned from a future remainder interest because the holders of the two interests possess the property successively, rather than concurrently.
http://www.courts.state.va.us/opinions/opnscvwp/1031224.pdf
Official Portal for North Dakota State Government state.nd.us/human services/policy manuals/Medicaid Forms of Asset Ownership 510-05-70-20(Revised 2/04 ML #2900) (N.D.A.C. Section 75-02-02.1-29 and 75-02-02.1-32)
Life estate and remainder interests.
Real property interests may be divided in terms of the time when the owner of the interest is entitled to possession of the property. The owner of a life estate (life tenant) is entitled to possession of the real property for a period measured by the lifetime of a specific person or persons. A life tenant has the right to use the property and is entitled to any rents or profits from the property. A life tenant may sell the life estate, but such a sale does not change the identity of the person or persons whose lifetimes measure the duration of the life estate. A life estate may be referred to as a "life lease".
When a life estate is created, a right to possess the property, after the death of the life tenant, must also be created. That right is called a "remainder interest," and the owner of that right is called a "remainderman." Upon the death of the life tenant, the remainderman owns the property. The remainderman is not entitled to possess or use the property until the death of the life tenant. The remainderman does have the right to sell the remainder interest.
http://www.state.nd.us/humanservices/policymanuals/medicaid-508/510_05_70_20.htm
Thinking of proper protocol, I had the 2010 Election Committee review this and made clear that my intention was not to attack or change Pat Burke’s tenure, but to keep this from being used as a precedent by all future Life Estate remaindermen who will instantly receive ownership status and enjoy all the Association membership privileges while they wait to take possession of their future LIV property, which by the way could take decades. The Committee’s response was that they had no authority to neither overrule the previous committee’s decision nor make new Village policy.
Our Bylaws say current owners only qualified for Association Membership privileges. Those privileges include speaking at our board meetings, accessing LIV records, the right to vote, holding office, using an owner’s car pass, the use of the owner’s lounge, having discounted golf green fees/Rec. hall rates, free swim bands, sponsoring non owners, and etc.
It should be noted that there was an owner in 2008 denied the opportunity to speak at a meeting because he had recently sold his property. The Board declared at this meeting, once you sell your property you lose your Owner Association rights, including the privilege to speak on issues. That leads me to this question. Shouldn’t FUTURE owners be treated the same as PAST owners since neither are PRESENT owners?
In closing, one must ask if Article II Section 2 of the By-Laws supports the attorney’s opinion. It is the sincere hope that the information above will help to erase what we feel is a wrongful precedent brought about by the ruling of the 2009 Election Committee and make it known to the Board that a clearer definition is needed to describe what constitutes the privilege of being a “current” Village owner.
Any Comments?
A remainderman is a person who inherits or is entitled to inherit property upon the termination of the estate of the former owner.
http://en.wikipedia.org/wiki/Remainderman
Life Estate Ownership of Real Estate
Law Offices of Susan M. Mooney, P.C. By Attorney Susan M. Mooney
With a Life Estate form of ownership of real estate there are two separate categories of owners of the property:
Life Tenant Owner:
The Lifetime Owner of the property with absolute and exclusive right to use of the property during their lifetime, which expires automatically upon the death of the last to die of the Life Tenant(s). The Life Tenant can be one individual or there can be joint Life Tenants. The Life Tenant remains responsible for real estate taxes, insurance, and ordinary maintenance costs related to the property. The Life Tenant is entitled to all income from the property in the event that the property is rented. In the event the Life Tenant no longer wishes to reside at the property, or if they are unable to reside there, the property can be rented and the rental income is the rightful property of the Life Tenant. If the property is a multifamily dwelling, all rental income is payable to the Life Tenant Owner.
Remainder Owner:
The Remainder Owner(s) automatically become owner(s) of the subject real estate immediately upon the death of the last to die of the Life Tenant Owner(s). The Remainder Owner has no right to use of the property or income from the property during the Life Tenant’s lifetime. The Remainder Owner is not responsible for payment of taxes, insurance, or maintenance of the property during the Life Tenant’s lifetime. The Remainder Owner may be one individual, or more than one person.
http://www.susanmooney.com/estate-link5.htm
Encyclopedia Britannica –subject Remainder property law
In Anglo-American law, a future interest held by one person in the property of another, which, upon the happening of a certain event, will become his own? The holder of this interest is known in legal terms as a remainderman.
http://www.britannica.com/EBchecked/topic/497527/remainder
From “All Business” a D&B company By Kosty, Lauren Publication: The Tax Adviser Date: Thursday, November 1 2007
Gifting a remainder interest requires the property ownership to be divided into two separate interests: a life estate and a remainder interest. A life estate gives the holder the power to retain ownership until death. If the taxpayer is married, the life estate can be structured to last until the second spouse’s death. A remainder interest gives the holder the right to take ownership when the life estate has ended.
http://www.allbusiness.com/legal/tax-law-income-tax/5524079-1.html
American Commercial Law Series, by Alfred W. Bays
Sec. 77 The Vested Remainder
A vested remainder is one, the right to enjoy which (after the termination of the particular estate) has already become certain.
http://chestofbooks.com/business/law/American-Commercial-Law-Series/Chapter-12-Estates-In-Remainder-And-Reversion-And-Executor.html
Lawyers.com
A life estate can help to avoid probate and ensure that the intended heir gets the property. It also has certain tax benefits, such as reducing estate tax and other taxes.
A life estate gives you the right to live in, use and enjoy property during your lifetime. The person granted the life estate is called a life tenant. The person granting the life estate and the actual owner is called the grantor. For the tenant, the ownership in this type of property is temporary and ends upon death. Therefore, the property can't be left to the life tenant's heirs. Where does the property go? It goes back to the grantor or someone else that the grantor designates.
Remainder interests are future interests in property. For example, Victor decides to give Bob a life estate, and Carolyn a remainder interest in his property. What will happen? Bob will get to use the property for life and when he dies Carolyn gets ownership of the property.
http://wills-probate.lawyers.com/Life-Estates.html
US LEGAL.com
"Remainder interest” In general terms, a remainder interest refers to someone with a future interest in an asset, a vested interest that becomes effective at a specified future date.
"Remainder interest" (Def. commercial law) interest in somebody else's estate: an interest in an estate that passes to somebody only after a prior interest terminates.
http://definitions.uslegal.com/r/remainder-interest/
Roger McEowen, Leonard Dolezal Professors in Agricultural Law, (515) 294-4076.
A common estate planning technique involves the use of a life estate coupled with a remainder. Under this arrangement, a person leaves property to someone else for life (known as the life estate holder) with the property passing to another person (known as the remainder holder) at the death of the holder of the life estate.
A remainder interest is a future interest. That means the remainder interest holder has an interest in the property, but does not yet have possession of the property.
http://www.extension.iastate.edu/agdm/articles/mceowen/McEowOpinionsOct06b.html
Texas Administrative Code- Title 1 ADMINISTRATION- Part 15 TEXAS HEALTH AND HUMAN SERVICES COMMISSION- Chapter 358 MEDICAID ELIGIBILITY- Subchapter D RESOURCES- Rule 358.441 Real Property
(1) Life estates. A life estate provides a person, for the person's lifetime, certain rights in a property, while transferring ownership of the property to another person. The duration of a life estate is measured by the lifetime of the owner of the life estate, or by the occurrence of some event. The contract establishing a life estate, however, may restrict one or more rights of the owner of the life estate. The owner of a life estate does not have fee simple title to the property nor the right to sell the entire property. In most situations, the owner of a life estate has the right to:
(A) Possess the property;
(B) Use the property;
(C) Get profits from the property; and
(D) Sell his or her life estate interest.
(2) Remainder interest. A remainder interest, which is created when a life estate is established, gives a person owning a remainder interest the right to ownership of the property upon the death of the owner of the life estate.
http://secure.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=1&pt=15&ch=358&rl=441
(2/18/99); 1-26 Matthew Bender & Co., California Wills & Trusts § 26.07.)
In general, the creation, transfer or termination of a life estate is a change in ownership. (Rule 462.060, subdivision (a).) Any vesting or right to possession or enjoyment of a remainder interest, which occurs upon the termination of a life estate or other similar precedent property interest (except as provided in subdivision (d) of section 62 and section 63) is a change in ownership unless an exclusion applies. (Rev. & Tax. Code, § 61, subd. (g).)
http://www.boe.ca.gov/proptaxes/pdf/220_0457.pdf
Published in Massachusetts Lawyers Weekly, June 23, 2003.
Perhaps there is one thing that is simple about a life estate – the life tenant’s “estate” (the right of possession, rents, or “profits” from the property) lasts for the duration of the measuring life, but that is about the extent of its simplicity.
Remaindermen generally do not have the right to partition since they do not have a possessory interest.
http://www.bovelanga.com/publications/news_briefs/trusts_and_estates_forum/Trusts%20and%20Estates%20The%20Meaning%20of%20Life.pdf
Principle of Property Law by Samantha J. Hepburn-The Doctrine of Tenure and Estates
A remainder interest could not take effect prior to the natural determination of the prior freehold estate. A remainder interest is a successive rather than a primary interest. It can only take effect in the future when the prior limited estate has been extinguished naturally. The justification for this is that a reminder interest cannot interfere with or interrupt the ownership of the prior estate.
http://books.google.com/books?id=DK-UtVNRfO8C&pg =PA59&lpg=PA59&ots=uIv2QZIUDs&dq=remainder+interest+law&output=html
Other Free Encyclopedias :: Law Library - American Law and Legal Information :: American Law Encyclopedia Vol. 8
A vested remainder is a future interest to an ascertained person, with the certainty or possibility of becoming a present interest subject only to the expiration of the preceding property interests. http://law.jrank.org/pages/9756/Remainder.html
The Supreme Court of Colorado recently reached the same conclusion in Beach v. Beach, 74 P.3d 1 (Colo. 2003), holding that partition could not lie by a life tenant against the remaindermen:
Partition applies only to concurrent interests, meaning interests that are held simultaneously in time. Thus, a present life estate cannot be partitioned from a future remainder interest because the holders of the two interests possess the property successively, rather than concurrently.
http://www.courts.state.va.us/opinions/opnscvwp/1031224.pdf
Official Portal for North Dakota State Government state.nd.us/human services/policy manuals/Medicaid Forms of Asset Ownership 510-05-70-20(Revised 2/04 ML #2900) (N.D.A.C. Section 75-02-02.1-29 and 75-02-02.1-32)
Life estate and remainder interests.
Real property interests may be divided in terms of the time when the owner of the interest is entitled to possession of the property. The owner of a life estate (life tenant) is entitled to possession of the real property for a period measured by the lifetime of a specific person or persons. A life tenant has the right to use the property and is entitled to any rents or profits from the property. A life tenant may sell the life estate, but such a sale does not change the identity of the person or persons whose lifetimes measure the duration of the life estate. A life estate may be referred to as a "life lease".
When a life estate is created, a right to possess the property, after the death of the life tenant, must also be created. That right is called a "remainder interest," and the owner of that right is called a "remainderman." Upon the death of the life tenant, the remainderman owns the property. The remainderman is not entitled to possess or use the property until the death of the life tenant. The remainderman does have the right to sell the remainder interest.
http://www.state.nd.us/humanservices/policymanuals/medicaid-508/510_05_70_20.htm
Thinking of proper protocol, I had the 2010 Election Committee review this and made clear that my intention was not to attack or change Pat Burke’s tenure, but to keep this from being used as a precedent by all future Life Estate remaindermen who will instantly receive ownership status and enjoy all the Association membership privileges while they wait to take possession of their future LIV property, which by the way could take decades. The Committee’s response was that they had no authority to neither overrule the previous committee’s decision nor make new Village policy.
Our Bylaws say current owners only qualified for Association Membership privileges. Those privileges include speaking at our board meetings, accessing LIV records, the right to vote, holding office, using an owner’s car pass, the use of the owner’s lounge, having discounted golf green fees/Rec. hall rates, free swim bands, sponsoring non owners, and etc.
It should be noted that there was an owner in 2008 denied the opportunity to speak at a meeting because he had recently sold his property. The Board declared at this meeting, once you sell your property you lose your Owner Association rights, including the privilege to speak on issues. That leads me to this question. Shouldn’t FUTURE owners be treated the same as PAST owners since neither are PRESENT owners?
In closing, one must ask if Article II Section 2 of the By-Laws supports the attorney’s opinion. It is the sincere hope that the information above will help to erase what we feel is a wrongful precedent brought about by the ruling of the 2009 Election Committee and make it known to the Board that a clearer definition is needed to describe what constitutes the privilege of being a “current” Village owner.
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4 comments:
Ya can't use other state's laws or findings to support an opinion in Tx.
I have been hearing things about the Village Voice? Who is this voice? Why do only certain people get letters and emails from them? I understand there is another blog from this voice. I do think it it not a group of waterfront owners!
The list of names of people who want to receive information from the Village Voice is growing, so if you want to be included contact their e-mail: thevillagevoice@msn.com. Not everyone receives postcards because of the cost.
They have no blog. And it is made up of a group of concerned owners (waterfronters and non-waterfronters) who want to keep other owners informed as to what is going on around LIV and at the Board meetings.
Simple as that.
Anonymous,
I don't know who the Voice is but post your address or e-mail and I bet you will make one of the lists.
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