[WSBAPT] Clause in Trust that Prevents Forced Sale of Real Estate?

Thu Jul 29 18:17:26 PDT 2021

Yes, honestly, put the property in an LLC and use an operating agreement to establish these rules. Why deal with all of this byzantine real property law complication when the law of LLCs is pretty well established and will do the job just fine? Assign the LLC interests to the trustee of the trust and, voila!, you avoid probate and keep the details and restrictions of the real property in the confines of an LLC agreement – which the beneficiaries can either accept to join as a member or the heck with them. They won’t own real property; they will own LLC interests. They are entitled to nothing right now, so creating a situation where they are entitled to partition a property – or even “maybe be able to partition a property” – just seems unnecessary.

But I had computer problems today and am grumpy, so . . . 😉

Best, Josh

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Thursday, July 29, 2021 4:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Clause in Trust that Prevents Forced Sale of Real Estate?

Please forgive my ignorance but  I would think such a waiver of partition is an unreasonable restraint on alienation.  I do have drafted agreements with provisions to allow one party out at a predetermined (as opposed to then current FMV) price that allows the parties to keep family property in the family, in the family LLC or other entity.

Any thoughts regarding my concern?  Full confession, I digging way back to my law school property days and have never researched the answer.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Paul Neumiller
Sent: Thursday, July 29, 2021 3:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Clause in Trust that Prevents Forced Sale of Real Estate?

Sure, it's called the waiver of the right of partition action. I used language like that all the time for Co tenancy agreements and partnership agreements. I'm working with a family now that wants to transfer a family cabin to the Next Generation but prevent any one owner from the Next Generation to force a partition action which will force the sale for everyone's interest.
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Josh Grant <jgrant at accima.com<mailto:jgrant at accima.com>>
Sent: Thursday, July 29, 2021 1:08:11 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Clause in Trust that Prevents Forced Sale of Real Estate?

sounds like an unlawful restraint on alienation.

Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Inge Fordham
Sent: Thursday, July 29, 2021 12:58 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Clause in Trust that Prevents Forced Sale of Real Estate?

Colleagues,

I have a client who wants to transfer the family house into a revocable living trust, which will instruct that the house go to each of three children (to share equally) upon his demise.  The client is asking whether we can include language in the trust stating that none of the children can force the sale of the property.  It would seem you might be able to include language regarding right of first refusal but I wouldn’t think you could prohibit one of the children from filing a partition action to force the sale.  Has anyone dealt with this specific issue?

Thank you in advance,

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Inge A. Fordham | Attorney

Fordham Law, PLLC

3218 Sixth Avenue | Tacoma, WA 98406

Office: (253) 348-2657 | Mobile: (206) 778-3131

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