The real estate collapse has increased the need for asset protection, and in one way, it has made easier some asset protection tools. Many real estate owners seeking to protect unencumbered properties from potential lawsuits from their mortgage lenders ask whether they can transfer title of the free and clear properties to business associates, friends, or even to family members. Transfers of title without fair consideration are subject to reversal as fraudulent conveyances up to four years after the transfer is made. Transfers for reasonably equivalent value are usually protected from allegations of fraudulent transfers. Owners can sell or transfer their properties to anyone as long as the conveyance is in consideration for receipt of reasonable equivalent value. Reasonably equivalent value may or may not be the same as fair market value; some bankruptcy courts have upheld sales at 20 to 30 percent less than fair market value as a transfer for “reasonably equivalent value.”
In a depressed real estate market less money need change hands to substantiate a conveyance when market values, and reasonably equivalent values, are depressed Real estate appraisers have told me that the market is almost completely illiquid and that as a result the practical value of many formally valuable properties is close to zero; real estate cannot be sold or financed. People who want to move properties to closely related buyers may be able to sell the properties in consideration for very little money and defend that transfer against fraudulent conveyance allegations in today’s market environment.
People considering a sale to a friendly buyer should always get the property appraised prior to the sale. The sale contract should have a price within the range of appraised value. Money must actually change hands. The more formal the contract and the closing the easier it will be to later defend the transaction. Some people ask if they can sell property for reasonably equivalent value in the form of a promissory note. This is not a good idea because a creditor of the seller can garnish the note payments and enforce the terms of the note against the buyer.
An owner who transfers title to valued property for reasonably equivalent value must be prepared to explain what happened to the money received. Large amounts of money don’t simply disappear, so it is not credible for the former owner to testify under oath that he simply spent the money. The creditor is entitled to see bank statements tracing the proceeds in to the debtor’s financial accounts and subsequently out of the same accounts. However, asset protection of money is generally easier than the protection of real property.
Real estate owners interested in asset protection planning should use today’s depressed market values to facilitate some real estate transfers as part of an overall asset protection plan.