Fresno Lawyer – Randolf Krbechek

Trusts have been employed in the English legal system for hundreds of years.  In 1979, Prof. R.H. Hehnholz reviewed court records to examine the early history of trusts.

Prof. Hehnholz started by noting, “As a means of avoiding feudal incidents and of evading the common law rule prohibiting devises of freehold land, the feoffment to uses, ancestor of the modem trust, enjoyed a popularity at least from the reign of Edward I (1327-1377).”

The question is, How were they enforced?  “Enforcement of the feoffor’s directions, however, long posed a problem.  What of the feoffee who refused to carry out those directions after the feoffor’s death?”

“How can so important and so widespread an institution have existed without legal sanction?  Can its effectiveness really have rested solely on the conscience and good sense of the feoffees prior to the time the Chancellor began to intervene? This seems implausible.”

Jurisdiction over decedent’s estates was, in the early years, an ecclesiastical matter.  “As is well known, the English Church exercised probate jurisdiction throughout the Middle Ages, and even afterwards.  One of the responsibilities attendant upon that jurisdiction, in the eyes of the men who exercised it, was the duty to secure a person’s final wishes.”

“In an age when the grant of land need not have been by deed, and in which the Church courts would enforce the wishes of a dying man with no requirement of a testamentary writing, there was inevitably much room for uncertainty and disagreement.”

Prof. Hehnholz finds that the historical record reflects the long-standing enforcement of the use.  “In fact, good evidence to support the suggestion does exist: the court records from the ecclesiastical courts of the dioceses of Canterbury and Rochester contain many cases involving feoffments to uses.  The records are in manuscript.  They are hard to read, and often difficult to interpret.”

Humorous aside: G.R. Elton has described these early court records as “among the more strikingly repulsive of all the relics of the past.”  G. ELTON, ENGLAND, 1200-1600, at 105 (1969).

Prof. Hehnholz explains that “the records furnish the best test of the actual scope of the Church’s jurisdiction, and although they do not allow for absolutely confident generalization, they tend to prove that some English Church courts regularly enforced feoffments to uses.”

“For example, in a suit brought at Canterbury in 1416, the Act book records that ‘the aforesaid Henry was ordered to restore the three virgates of woodland’ . . . The records unfortunately supply no evidence on what remedies the Church courts offered in more complicated cases, if indeed any was available . . . Nor is there any sign of the recovery of money damages from defaulting feoffees.  So far as the records reveal, an order for specific performance was the sole remedy available.”

Violation of the church order meant that “they were excommunicated.  What action they had to take to have the sentence lifted, and whether or not they took it, unfortunately does not appear in the surviving records.”

However, the evidence is limited.  “The fact that all the evidence comes from the two English dioceses that lay within the county of Kent is undeniably troublesome.  The pre-eminent influence there of the archbishop of Canterbury, not only England’s most powerful churchman but also a powerful secular landlord within the county, suggests at least the possibility of a special place for the Church courts in his diocese.  Not every man would question the rights of an archbishop who happened also to be his lord.”

As time passed, the enforcement of the use/trust shifted to courts administered by the crown (as opposed to courts administered by the church).  “Cases involving feoffnents to uses cease to appear in the court records after the middle third of the fifteenth century.  The last unambiguous example found comes from 1465 . . . By that date, of course, the jurisdiction of Chancery over uses had been established.”

And, of course, there were lobbyists 500 years ago.  “The Statute of Uses (1536), was passed specifically to put an end to these evasions of the common law.  The ability to devise lands was quickly restored, because of pressure from the land-owning classes, in the Statute of Wills (1540).”

R. H. Hehnholz, The Early Enforcement of Uses, in 79 Columbia Law Review 1503 (1979)

The California Supreme Court recently considered when a transfer of ownership occurs in the context of an estate planning trust.  The dispute arose in under Proposition 13, which sets the rules for property tax reassessment.

According to the court, “When Helfrick died, the residence’s assessed value for tax purposes was $96,638, with total taxes due of $1,105.  Upon her death, defendant County of Los Angeles reassessed the residence and increased its valuation for tax purposes to $499,000.  For the next three tax years, the County sent property tax bills of, respectively, $5,492, $5,764, and $6,245.”

That’s the dispute – do the property taxes increase by 500% upon the owner’s death?  Stated the court, “The starting point for our conclusion lies in the fact that, during her lifetime, Helfrick transferred the residence to a trust of which she was the sole present beneficiary and as to which she held the power to revoke.”

The court explained that “under general principles of trust law, trust beneficiaries . . . are regarded as the real owners of that property . . . Moreover, property transferred to, or held in, a revocable inter vivos trust is deemed the property of the settlor.”

The court cited to a legislative task force, which had explained that:  “Revocable living trusts are merely a substitute for a will.  The gifts over to persons other than the trustor are contingent; the trust can be revoked or those beneficiaries may predecease the trustor.”

According to the court, “although transferring legal title to the residence to herself as trustee, Helfrick, as sole trust beneficiary and holder of the revocation power, continued to hold the entire equitable estate personally and effectively retained full ownership of the residence.”

It’s a relief to see such a clear statement from the California Supreme Court.  A living trust is established for estate planning purposes as a will substitute.  Such a trust can be amended or revoked by the trustor (i.e., the property owner) during the his or her lifetime, just like a will.  In the court’s explanation, “Any interest that beneficiaries of a revocable trust have in trust property is ‘merely potential’ and can evaporate in a moment at the whim of the settlor.”

What happens to the property after death?  At this point, the trust cannot be modified.  “Upon Helfrick’s death, the trust became irrevocable and the entire equitable estate in the residence, which Helfrick had personally held during her lifetime, transferred from Helfrick to Steinhart and her siblings (or their issue) as beneficiaries of the irrevocable trust.”

The same thing with a will – the instrument becomes permanent at death, and the property passes to the persons named as the beneficiaries.  Here’s the point at which the court had to make a slight leap.

With a will, Probate Code section 7000 states that, “title to a decedent’s property passes on the decedent’s death to the person to whom it is devised in the decedent’s last will.”  However, there is no statutory counterpart in California’s trust laws.  Hence, the court filled the gap by holding that, “upon [the] settlor’s death, [the] trust became irrevocable and the full beneficial interests in the property transferred to the residual beneficiaries of the trust.”

Thus, during her lifetime, “Helfrick personally held the entire equitable estate in the residence and was regarded as the residence’s real owner.  Under the terms of the trust, upon her death, Helfrick transferred not just a life estate, but the entire fee interest – i.e., the full bundle of rights – to, collectively, Steinhart and her siblings (or their issue) . . . Helfrick, who was the sole beneficial owner of the residence before her death, retained no interest in the residence after her death.”

In the case before the court, the decedent left a life estate to one heir, with the remainder interest passing to certain siblings.  The life estate tenant claimed that the property was not subject to reappraisal until her death.  The court disagreed:  “That circumstance does not alter the fact that, upon Helfrick’s death, the entire equitable estate in the residence was transferred from Helfrick to, collectively, Steinhart and her siblings (or their issue) as beneficiaries of the irrevocable trust . . . This transfer constituted a ‘change in ownership’ within the [meaning of Proposition 13].”

The holding is not surprising but again reflects the legal tensions that arise from the use of a trust agreement as a substitute for a will.

Steinhart v. County of Los Angeles, 2010 DJDAR 1913 (Feb. 5, 2010)

In the recent case of Sharabianlou v. Karp, 2010 DJDAR 2039 (Feb. 8, 2010), the court considered the following facts.

“Sharabianlou [the buyer] offered to purchase a commercial building owned by Berenstein Associates.   The [buyer] engaged real estate agent Ronald Karp to represent them in the transaction.  Soon after the offer was made, however, the parties learned of environmental contamination on the property.”

“Faced with uncertainty about the scope of the contamination and the cost of its cleanup, and unable to agree on who should pay for the remediation, the parties failed to close escrow.  After further efforts to resuscitate the transaction were unsuccessful, the [buyer] sued the [seller] and the [real estate agent].”

“The second amended complaint also included claims against the [real estate agent] for breach of fiduciary duty . . . The [buyer] contends that [the real estate agent] breached his fiduciary duty by failing to disclose to their lender’s appraiser that environmental contamination had been discovered on the property.”

So far, that’s a traditional basis for a breach of fiduciary claim.  The agent is required to disclose all material facts concerning the subject of the agency.

Thus, the buyer “asserts that [the real estate eagent] knew he was relying on the appraisal to determine whether to exercise a contractual right to walk away from the contract.  [The buyer] claims that had the contamination been disclosed to the appraiser, the property could have appraised for less than $1.7 million, and he would have exercised his right under Addendum 4 to cancel the Agreement.”

That’s the background for the court’s review – did the real estate agent “fail to disclose the existence of the Piers environmental reports to US Bank’s appraiser?”  In its analysis, the court held that,

“A claim for breach of fiduciary duty by a real estate agent has three elements; a plaintiff must demonstrate the existence of a fiduciary relationship, its breach, and damages proximately caused by that breach.  The trial court found no breach of fiduciary duty because the evidence showed the [buyer] and US Bank already knew that the toxic hazard and potential remediation cost was undefined and unknown.”

This finding that will not be disturbed on appeal unless it is unsupported by evidence, and would undermine any claim for relief.

The buyer made a peculiar concession to the appellate court.  “On appeal, the [buyer] does not contest any of these findings.  Instead, [the buyer] claims that as a matter of law, ‘[the real estate agent] owed a duty to disclose the existence of environmental contamination on the property when he must have known that his failure to do so would affect his principals’ substantive rights.’”

The appellate review could have ended at this point, because there was no finding of a failure to disclose.  Instead, the court held held “appellants cannot show any prejudicial error because they failed to present evidence of damages proximately caused by [the real estate agent’s failure to disclose.”

The court explained that “there simply is no evidence that the property would have appraised for less than $1.7 million, and thus any claim that the [buyer] would have been entitled to cancel the Agreement on that basis is entirely speculative.  Without such evidence, the [buyer] cannot show that [he was] damaged by the alleged breach of fiduciary duty.”

That’s a bit of a strange turn.  The concession that there was no failure to disclose should have ended the inquiry.

Sharabianlou v. Karp, 2010 DJDAR 2039 (Feb. 8, 2010)

Continuing his recent discussion of fault in contract law, Judge Posner explains that,

“The idea of ‘good faith’ is an example.  We generally want people to be honest and aboveboard in their dealings with others.  But there is no general duty of good faith in contract law.  If you offer a low price for some good to its owner, you are not obliged to tell him that you think the good is underpriced – that he does not realize its market value and you do.

“You are not required to be an altruist, to be candid, to be a good guy.  You are permitted to profit from asymmetry of information.  If you could not do that, the incentive to discover information about true values would be blunted.  It is an example of the traditional economic paradox that private vice can be public virtue.”

True, and eloquently stated.  The principle of capitalism is that a person should be able to profit from skill and knowledge.  Continuing his analysis, Judge Posner explains his view the duty of god faith in contract law, stating that,

“There is a legally enforceable contract duty of ‘good faith,’ but it is just a duty to avoid exploiting the temporary monopoly position that a contracting party will sometimes obtain during the course of performance.”

OK.  Good faith in contract law concerns good faith in performance, not to good faith in contract formation (although he recognizes that some standard of decency is necessary to police unreasonably sharp deals).

Thus, “More often than not the parties to a contract do not perform their contractual duties simultaneously, and so one party may unavoidably deliver himself into the power of the other party for a time during the performance of the contract.  [Take this example.]  A may agree to build a swimming pool for B, and B may agree to pay A upon completion.  Suppose that when A has finished, B refuses to pay the agreed-upon price because he knows that A is desperately short of cash and will agree to a reduction in the contract price, having no possible source of cash other than B.  A’s cash shortage, coupled with his having completed performance before B has begun and his having no alternative source of cash, gives B a monopoly position as A’s financier; monopoly is inefficient and so a modification of the contract to lower its price will not be enforced.”

Yes, but, isn’t this conduct bad faith in performance?  If so, should the law award extra-contractual damages for violation?  Judge Posner continues, citing from his opinion in Market Street Associates v. Frey, 941 F.2d 588 (7th Cir. 1991):

“In all these examples the duty of ‘good faith’ arises after the contract has been formed; that is why it is properly called the duty of good faith in performing a contract.  If I may be permitted to quote again from my opinion in the Frey case:

“Before the contract is signed, the parties confront each other with a natural wariness.  Neither expects the other to be particularly forthcoming, and therefore there is no deception when one is not.

“Afterwards the situation is different.  The parties are now in a cooperative relationship the costs of which will be considerably reduced by a measure of trust.  So each lowers his guard a bit, and now silence is more apt to be deceptive . . .

“As performance unfolds, circumstances change, often unforeseeably; die explicit terms of the contract become progressively less apt to the governance of the parties’ relationship; and the role of implied conditions and with it the scope and bite of the good-faith doctrine grows.”

We see the analysis heading toward the territory of the fiduciary, in which neither party may take action to deprive the other of the benefit of the bargain.  The question is, If the action by the contract-breaker is intentional, after the other party has become vulnerable, should the law respond more harshly?  Judge Posner says no – but on a societal level, why should this be the rule?

Richard A. Posner, “Let Us Never Blame a Contract Breaker,” in Michigan Law Review (June 2009), Vol. 107, No. 8, page 1349.