Real Estate & Property Law

Who Gets the Rights in an HOA or Condo When The Property is in A Trust?

Lots of associations are having problems collecting associations and also sorting out what rights may be exercised by whom when the HOA property or Condo is owned by a trust. The type of trust may have bearing but generally, the Trustee is considered to have control of the trust and would be considered the owner from the standpoint of making any decisions the owner would make involving the trust property. Most trusts HOAs see are family trusts where the owner of the property has put it into a living trust which is done to avoid probate of the property when the owner dies. Most of those trusts are revocable meaning that the owner of the property can revoke the trust as long as they are alive, and normally, they would be the trustees of the trust while still alive.

Once the property owner who put it into the trust dies, then the successor trustee would be considered the owner of the property, so that means the trustee would be named if there was a lawsuit filed. Finding out who that is can be difficult when the trust itself is not recorded.

As for exercising ownership rights, the documents may refer to "record owner" as having the membership rights or serving on the board and I do not believe a successor trustee would be considered the record owner of the property for purposes of, say, serving on the board. However, it is difficult to say for sure in any given case without having the opportunity to review the deed, the trust and the association governing documents.

Full post as published by California Condo & HOA Law on March 09, 2011 (boomark / email).