Depreciation recapture on gifted real estate

Must giftee pay IRS when property is later sold?

DEAR BENNY: In April 2001, a friend and I purchased a condo in California for $100,000. We are on title as tenants in common. My wife and I own 50 percent, and my friend owns 50 percent.

The loan is in my wife’s and my name only. Because the property is now worth only about $50,000, my friend wants to turn the property over to me. We owe $67,000 on the mortgage.

My friend has paid half of all expenses and has taken depreciation on his tax returns. What if he quitclaims his half of the property to me? Am I responsible to pay back his depreciation when I sell the property? –Gary

DEAR GARY: No. Your friend is responsible for reclaiming only the depreciation he took on his tax return. If he gifts his half of the property to you by way of a quitclaim deed, his basis will be added to your basis for tax purposes.

You should, however, obtain legal and tax information about your specific situation, as I can provide only general advice.

DEAR BENNY: In May 2008, I signed a land contract on my home, thinking I had done a short sale and was no longer on the mortgage or on the deed or title to the home. However, a few months after signing the contract, I discovered that my name was still on the mortgage and on the title to the home. When I found out, I tried to find an attorney that would be able to help me, but I was unable to afford a lawyer. Help!–Mary

DEAR MARY: Years ago, when the farmhands who worked for ranchers out West wanted to buy an acre or two, they made a deal with the landowner/rancher. "I will buy the land for $100, and pay you $5 a month. You will put the deed to the property in escrow with a third party (a bank, an attorney, a title company). When I am able to pay the full $100, you will instruct that third party to release the deed and record it in my name."

This is called a "land installment sales contract," or a "land contract" or "contract for deed."

So, where is the party who is on that contract with you? I assume that the mortgage is being paid by someone, as there has been no foreclosure over the past four years.

Do you have a copy of that contract? Read it carefully; you may not be in trouble at all.

But, you really should get an attorney to review your documentation. If you cannot afford legal counsel, most cities (counties or states) have a bar association that can provide "pro bono" (i.e., free) legal services to persons who cannot afford to pay the attorney.

DEAR BENNY: In a recent Q-and-A, you wrote that a security deposit is not rent and thus if the tenant moved out without paying the last month’s rent, the property manager is not entitled to a commission on that money. I have been a real estate broker and property manager for 40 years.

What about an instance in which the tenant left the apartment without paying the last month’s rent, but there are no damages to the apartment and the landlord’s letter to the tenant reads: "$1,000 of your $1,500 deposit has been retained for May rent. The balance of $500 is being returned to you, check enclosed."

The landlord is certainly receiving his rent for May; he’s received rent for the whole 12 months of the lease and has not lost one penny. So why shouldn’t the property manager receive his 10 percent of the May rent?

The landlord is even calling it "rent" in his letter to the tenant, and it’s the fact that the lease and the law allow the deposit to cover any "unpaid rent" that allows the landlord to retain it. If he wasn’t using it for "rent" and calling it "rent" in his letter to the tenant, he would not be allowed by law to retain it! He can’t have it both ways — either it’s rent or it isn’t!

If the whole deposit had to be used to pay for damages to the apartment, as stated in your Q-and-A, then there wouldn’t be anything left over to cover unpaid "rent," and that’s a different story. But when it’s definitely used as "rent," I think the property manager should receive what he’s due — his 10 percent — just as the landlord received what he was due (May rent).

I work with out-of-state landlords, so I’m usually the real estate agent who rents the apartment to begin with, and then I provide ongoing property management. So if you raise the point that the May rent wasn’t really "collected" by the property manager — in my case, yes it was.

The whole security deposit was collected by me at the beginning of the lease, along with the first month’s rent. That’s a feat in itself, as it’s not easy to collect thousands of dollars upfront from people, especially in this economy.

So if some of that deposit money eventually ends up used as "rent," and it’s actually money that I, not the landlord, collected from the tenant at the start of the lease, why wouldn’t I get my 10 percent? –Marty

DEAR MARTY: Many thanks for your constructive comments. Your analysis makes sense, but the reader (landlord) who wrote me about this issue was surprised when his property manager insisted on the commission based on the amount of the security deposit.

I also wrote that if the written property management contract specifically states that the manager is entitled to a commission if the security deposit is used as the last month’s rent, I would then have no problem. So long as the terms and conditions of the management are spelled out — in advance — the landlord cannot complain at a later date.

Incidentally, in many states, a landlord cannot take a security deposit for more than one month’s rent. So your example would not be legal all over the country.

DEAR BENNY: My mother is currently 75 (widowed) and in reasonably good health with the attendant financial issues of living on a fixed income. She lives in Michigan and I am in North Carolina.

My sister (age 54) lives with her and is disabled due to multiple sclerosis. She is still functional — able to drive a car, etc. — but unable to handle any sort of home upkeep more than housekeeping. She is divorced and her only income is Social Security disability.

I would love for my mother to take advantage of a reverse mortgage, but what are the options when she passes? What options would I have for my sister? Is there is any way for her to stay in the home? –Ginger

DEAR GINGER: Typically, reverse mortgages are restricted to people who are 62 years of age and older. Additionally, most reverse mortgages become due and payable on the death of the borrower or when the borrower moves out and sells the house.

Your sister is age 54; if your mother lives for another eight years, then I suspect that your sister will be able to get her own reverse mortgage.

But, will your sister be the sole inheritor of the house? Or will your mother leave it to both of you?

Furthermore, when your mother passes, will it be wise for your sister to live in the house by herself even if she can afford to do so?

There are many questions that you should start asking and getting answers to as soon as possible. Your mother should consult with an estate planning attorney in Michigan. She should have a last will and testament, a durable power of attorney, and a living will, and some people also want to have a durable power of attorney for health.

AARP has a lot of valuable information about reverse mortgages on its website (www.aarp.org).

DEAR BENNY: My mother has a reverse mortgage on her home, taken out after my father died, with her name alone on the title. The usual terms of the reverse mortgage apply, including the acceleration clause upon death or removal from the home.

If anyone else is added to the title via a quitclaim deed in a tenancy in common, what, if any, impact does that have on the loan terms? –Kay

DEAR KAY: This is an easy question. The reverse mortgage was recorded on land records in the jurisdiction where the property is located. If anyone else is added to title, they are second in line.

Thus, when the reverse mortgage becomes due and payable, that lender can foreclose on the property and the new parties are out of luck. They were on notice — based on the recorded information — that they were behind the reverse mortgage.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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