How Canadians Should Buy Real Estate in Florida

Transferring funds to purchase a home or condominium is a simple process for Canadian buyers, however, many foreign buyers often overlook the consequences of how they hold title to their purchase. The acquisition of U.S. real estate by a Canadian citizens poses significant issues including but not limited to U.S. estate tax, capital gains tax, incapacity issues, complex Florida probate rules and creditor protection issues.

Proper cross-border planning for Canadian Citizens must address all of these issues. A deep analysis is required to find the best solution. There is no simple answer or one size fits all. However, as a general rule, the vast majority of concerns can best be addressed by creating and taking title in a Canadian Florida Land Trust which is considerably more advantageous then owning property in a buyer’s individual or corporate name or even some forms of Canadian Trusts. It is basically a modified Florida land trust which takes into consideration and is mindful of the rules of both the United States Internal Revenue Code as well as the rules of Canada Revenue Agency.

INTRODUCING THE FLORIDA LAND TRUST.

This form of ownership is unfamiliar to most Canadians and tax advisors due to the fact that Florida is among the minority of states that have a land trust statute. This form of ownership is so far removed from classic trust law that calling it a trust can be misleading. The land trust is very versatile and differs from conventional trusts in many ways.

A land trust is a legal arrangement whereby the trustee holds legal title to the property, yet all ownership interest in the property lies with the beneficial owners of the trust. The trustee takes action, solely upon the direction of the beneficiaries. Below is a list of the many benefits to holding property in a Florida Land Trust is:

• The interest of the beneficiaries are not disclosed except upon choice, upon sale or upon order of the court.
• The beneficial shares of the trust are deemed personal property only in accordance with Florida Statute 689.071(6).
• Provisions can be made in cases of disability which negate guardianship proceedings which otherwise may be required.
• It serves as a substitute for a will and provides planning providing direction for distributing the property upon death.
• It can serve as a substitute for a partnership agreement and outline the various partners rights and interest in the property.
• Transferring interest within a land trust is simple and not subject to state imposed documentary transfer tax.
• In the event of sale, provided the property has been held for one year or longer, favorable individual capital gain rates apply rather than the higher corporate rates.
• When creating the land trust you can determine who will serve as trustee. Typically, in a Canadian Florida Land Trust this is the owner, though it does not need to be. Trustees serve a ministerial role as the beneficiaries direct the trustee on how they wish to manage the property.
• Trustees are the individuals whose name is made public and is the individual who signs deeds or mortgages at the direction of the beneficial owners. Successor Trustees can be listed and set forth in the event of death or incapacity of the initial trustee.
• Canadian Florida Land Trusts are relatively inexpensive to establish. There is a one time fee without any recurring expenses.

A MODIFIED FLORIDA LAND TRUST FOR CANADIANS AVOIDS MANY COMMON PITFALLS.

In contrast, if title to real estate is placed in a Canadian’s individual name there are a host of issues to be concerned with:

1. PROBATE: Although a will, valid in Canada, will be recognized in Florida, unfortunately the will is not exempt from the costly and time consuming complicated probate process to transfer title in Florida. A Canadian Florida Land Trust can be created at the time of purchase and title can be placed in the name of the trust. Should the property owner pass away, provided title has been placed in the land trust, probate and related expenses will be avoided. Even though the property owner passed away, the land trust continues and the provisions within the trust set forth the order of the contingent beneficiaries (typically the surviving spouse and then the children).
2. INCAPACITY: Another advantage of Canadian Florida Land Trust is that it not only avoids probate and seeks to marginalize estate tax but it also acts as an excellent tool in the event of incapacity. If the property owner becomes incapacitated mentally or otherwise provisions are contained within the trust to provide for successor trustee(s) thereby avoiding the timely and costly process of Florida guardianship proceedings.
3. CREDITOR PROTECTION: Unlike owning property in your individual name, the interest of the beneficiaries do not need to be made public in a Canadian Florida Land Trust. As a result, third party creditors cannot place a lien or seize the property as it remains confidential who the true owner is.
4. ESTATE TAX CONCERNS: Estate taxes can be a paramount concern when Canadians own property in the U.S.
   1. Under the present tax treaty Canadians are taxed in the United States upon their worldwide assets. As of January 1, 2013 (subject to inflation) this exemption was permanently set at 5.25 million dollars based upon worldwide assets for individuals and 10.5 million dollars for married couples. As of January 1, 2015, these figures were adjusted to $5,430,000.00 and $10,860,000.00 respectively. If these thresholds are met, the Canadian citizen is taxed upon the value of their United States property in proportion to the value of all assets held. As a result, if title is held in an individual name and the worldwide assets exceed the present exemption amount, the surviving spouse may be hit with a significant estate tax that climbs all the way up to 45% based on the value of the estate. If properly drafted, shares within the land trust not need to be revealed until the time of death thereby making it possible to artfully manipulate the reported property interest of the deceased and hopefully avoid estate tax.
   2. Another tool to avoid or minimize estate tax is to make children beneficiaries at the time of purchase thereby increasing the tax exemption amount by increasing the number of individuals possessing an interest in the land trust. There is no gift tax in Canada. If the funds are gifted to the children in Canada and transferred for closing there is no taxable event. However, if a Canadian owns property located in the United States, in their individual name, a subsequent transfer of property to children will trigger a gift tax owed to the United States.

   LESS FAVORABLE ALTERNATIVES

   Other options to owning real estate individually is to take title in a Canadian corporation or to create an irrevocable trust. Below is an overview of both.

   OWNERSHIP BY A CANADIAN CORPORATION:

   In years past Canadian corporations were frequently used to own U.S. property. The corporation, if properly structured, was considered to eliminate U.S. estate tax on the death of the shareholder and the shareholder benefit issues did not arise due to an administrative provision of Canada Revenue. This type of corporation was referred to as a single purpose corporation. However, Canada Revenue withdrew this policy effective January 1, 2005. As a result a taxable shareholder benefit is created if the property held by a corporation was made available for the personal use of the shareholder.

   The value of the taxable benefit is determined by either, the fair market rent approach or the imputed rent approach. Under the fair market rent approach the taxable benefit will be the fair market value rent for the property less any consideration paid by the shareholder to the corporation for the use of the property. Under the imputed rent approach, the taxable benefit is calculated by the greater of the cost and the fair market value of the property X the Canada Revenue Agency’s prescribed interest rate, the operating costs related to the property paid by the corporation, less any consideration paid by the shareholders for the use of the property. As a result, it is no longer desirable to own property intended for personal use inside a Canadian corporation.

   OWNERSHIP BY AN IRREVOCABLE TRUST:

   An Irrevocable trust may also be used to own a U.S. property. If properly established, the trust may avoid exposure to U.S. estate tax however, unlike a Florida Land Trust which is revocable, to achieve it’s goal the trust must be irrevocable. In fact, the trust must be set up before the purchase of the U.S. property and the person who provides the funds to the trust for the purchase cannot be a trustee or a beneficiary of the trust. The most common structure is where one spouse creates the trust (the grantor) while the other spouse and their children are named the beneficiaries of the trust. The grantor’s spouse and their children can then use the property rent-free during their lifetimes. The property held by the trust would not be included the grantor’s estate for U.S. estate tax purposes, nor will it be included in the spouse’s estate for U.S. estate tax purposes on his or her death.

   Using an Irrevocable trust to own U.S. property can have its disadvantages. If the grantor’s spouse predeceases the grantor, the grantor must pay fair market value rent to the trust for the property to be excluded from his or her estate for U.S. estate tax purposes. This concern combined with a lack of flexibility makes a modified Florida Land Trust more attractive to the vast majority of Canadians owning real estate in Florida.

   GET IT RIGHT THE FIRST TIME

   This means when purchasing property you need to title it correctly from the outset. If a decision is made to transfer the real property at a later date, unless properly worded, Canada Revenue Agency may treat this as a “deemed disposition” and the value may be required to be determined at the time of transfer to see if capital gain applies. Further, when a Canadian investor transfers existing U.S. real estate by gift, he or she will be subject to U.S. gift tax. Again, this is the case even where an estate and gift tax treaty applies. There is no gift tax credit available to a transferor who is neither a citizen of nor resident in the United States (other than a limited annual exclusion of $14,000.00).

   Interestingly, a Land Trust allows the gifting of shares to have occurred where the beneficiaries reside and outside the purview of U.S. Tax Gift Laws. Otherwise, title held outside a land trust which is gifted outright is subject to the gift of the fair market value and carries with it the same graduated rate that applies to estate tax.

   At the end of the day, there may be unique facts and circumstances particular to each case that may warrant further investigation. As indicated above, when it comes to proper planning there is no panacea or one size fits all, however, most common pitfalls can be avoided and countless benefits obtained by establishing and placing title to real estate in a Canadian Florida Land Trust.