ADVERSE POSSESSION: CAN A TRESPASSER GAIN OWNERSHIP OF A NEIGHBOR’S PROPERTY? ADVERSE POSSESSION

Real Estate: Purchase and Sales Agreements, Deeds and Conveyances, Financing and Title Issues.
Property Rights: Easements, Covenants, Agreements, Adverse Rights and Disputes.
Land Use: Permits and Approvals, Property Development and Environmental Compliance.

Canadian Non-U.S. Residents Buying Real Estate in Washington State

Buying Real Estate in Washington is different from B.C.
Plan before and consider a B.C. Trust or other alternatives to hold title with your B.C. Lawyer, as well as other alternatives in Washington.
“Closing” or completion documents are usually prepared by an escrow agent (usually affiliated with a Title Insurance Company), and not by an attorney as in B.C.
South of the Border, Title Insurance Companies insure the ”title” and certain matters may or may not be covered. But recognize that it is possible for a property owner to lose property rights by adverse claims over time. So there is often risks in any real estate transaction.
In order to reduce the risks, it is recommended that a buyer obtain a survey before completing the purchase of Real Estate in Washington.

Canadian Non-U.S. Residents Selling or Gifting Real Estate in Washington State

A sale of U.S. real estate requires the buyer to withhold 15% of the amount realized by the foreign seller on most transactions unless exempted.
A sale of U.S. real estate may result in U.S. tax liability to the foreign seller although the tax rate may be reduced by capital gains treatment. Any tax paid in the U.S. may be a credit against taxes owed in Canada.
A gift of U.S. real estate is generally not favorable and may result in U.S. tax liability. Non-U.S. residents are generally limited to gifting $15,000 USD per year of U.S. based assets tax free.

ARE YOU EXEMPT?

Canadian Non-Residents with US based assets are exempt from US estate tax if the value of the assets is $60,000 USD or less. And in this case, no US Estate Tax Form 706-NA would be required. If the Canadian Non-Resident owned U.S. Real Estate it is recommended a Transfer Certificate be obtained from the IRS before any transfer from the decedent’s estate/ Above $60,000 USD a US estate tax return 706-NA is required to be filed within nine (9) months after the date of death. In order to determine if there would be any US estate tax due, a formula under the US-Canada Tax Treaty kicks in. See US- Canada Tax Treaty link below. Normally, there is no US estate tax if the value of your worldwide assets does not exceed the maximum amount, which is adjusted annually. In 2017, it is about $5.4 Million USD. But if your worldwide assets exceed the formula or the $5.4 Million USD (as adjusted annually) there may be US Estate Tax due (which can be around 40%). And the decedent’s estate should request a transfer certificate from the IRS before the estate transfers any property.
Link: U.S.-Canada Tax Treaty
Article XXIX B (Taxes Imposed by Reason of Death) of the U.S.-Canada Income Tax Treaty (“Treaty” ) provides special rules that may reduce taxes for U.S. citizen or resident decedents with Canadian property and Canadian residents with U.S. property. These rules were first incorporated into the Treaty under the 1995 Protocol to the Treaty.
If the decedent was a Canadian resident but not a U.S. citizen at the time of death, the estate can take a “pro rata” unified credit to compute U.S. estate tax. The pro rata credit under the Canadian treaty is determined by multiplying the exclusion amount available to a U.S. citizen decedent by a fraction of the value of the decedent’s U.S. assets over the value of the decedent’s world-wide assets. A statement invoking the right under the Treaty described above and showing the tax calculation must be attached to Form 706-NA. See paragraph 2 of Article XXIX B of the Treaty.

U.S. GREEN CARD HOLDERS

Watch abandoning your Green Card, including by failing to change your address and extended visits abroad for more than 180 days.
Watch the Expatriation Tax if you abandon your Green Card after satisfying the 8 of 15 year test.
Watch U.S. Estate Tax liability if you remain a Green Card holder indefinitely, and do not naturalize and become a U.S. Citizen. In 2017, a U.S. Citizen is entitled to a unified credit of $5,400,000 USD against U.S. Estate Tax.

Canadian Non-Residents Have Preferred Non-Probate Alternatives
to Transfer Real Estate in Washington State

Washington State has innovative non-probate alternatives to transfer real estate upon death in comparison to B.C.
Options include Community Property Agreements between spouses, and Transfer on Death Deeds (“TODD”), which can be used between spouses, children, relatives, or other beneficiaries.
Another option includes an Affidavit of No (or Lack of) Probate in Washington, and in effect, transfer ownership to the surviving heirs.
And even if a Probate is necessary it is often not as burdensome and expensive as in B.C. While there is a court filing fee in Washington, there are no “probate fees” as in B.C.

Canadian Non-Residents Buying Real Estate in Washington State

Buying Real Estate in Washington is different than in B.C.
Plan before and consider a B.C. Trust or other alternatives to hold title with your B.C. Lawyer, or other alternatives in Washington.
“Closing” or final documents are usually prepared by escrow companies, and not completed by an attorney like in B.C.
South of the Border, title companies insure the ”title” and certain matters may or may not be excepted. But it is possible for a property owner to lose his property rights by adverse claims over time.

Canadian Non-Residents Selling

Canadian Non-Residents Selling or Gifting Real Estate
in Washington State

A sale of property may trigger U.S. tax liability but the tax rate may be reduced by capital gains treatment. There is often a withholding on most transactions.
Gifting U.S. real estate is generally not favorable and may result in U.S. tax liability.

DISCLAIMER

The articles and information contained on in this website were prepared by Stowe Law PLLC. They are a general statement of the law of the State of Washington. The laws of other states differ from Washington law, and these articles are not intended to describe the law of any state except Washington. The articles and information found on this web site are intended for general informational purposes. They are not legal advice for a reader in any particular legal situation. The only way to obtain legal advice on a particular situation is to consult a licensed attorney. The reader’s use of this website and the information contained herein does not create an attorney-client relationship of any kind with Stowe Law PLLC.

COPYRIGHT

The information contained in this website, its design, and its functionality are all subject to copyright by Stowe Law PLLC to the extent allowed by United States law. All rights reserved. No portion of the information contained in this web site may be reproduced in any fashion without the prior written consent of Stowe Law PLLC.

The BC & Whatcom County Connection

Mark understands B.C. and Canadian Culture.
Mark, a resident of Point Roberts, WA, has been surrounded by Canadians visiting
their cottages for many years.
Mark’s daughter, born in B.C., plays sports in B.C.
Mark enjoys hiking on the Northshore.
Mark relishes the views of Mount Baker and the Salish Sea.
Mark enjoys walking the family dog, Enzo, in the woods at Point Roberts.
Mark is still trying to “successfully” ride his mountain bike down Galbraith Mountain.

EDUCATION
University of Washington, Seattle, WA 1983
Bachelor of Arts in Philosophy–Cum Laude, Honorary Distinction, Phi Beta Kappa
Phi Delta Theta Fraternity
Gonzaga University, Spokane, WA 1986
Juris Doctorate
AFFILIATIONS
Washington State Bar Association, Member. 1987-present.
US District Court, Western District of Washington, Seattle, WA. 1987-present.
Certified Player Agent by the National Hockey League Players Association (“NHLPA”). 1996-present.
US Tax Court, Washington D.C. 2009-present.
Practitioner of Foreign Law, The Law Society of British Columbia 2017-present.
INTERESTS
Enjoys Family, Hockey, Baseball, Mountain Biking, Hiking, and Travel.