Do you need an LLC? Absolutely. There is No Debate About It.

Do you need an LLC? Absolutely. There is No Debate About It.

Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes

The LLC debate rages on here at BP. Rarely does a day pass without an investor asking whether they should use an LLC or not. Perhaps BP should have a whole forum just devoted to this question . . .

Having an LLC is a no-brainer. Real estate is a business, and if you are in business you should not be operating in your own name -- unless the law requires it, such as for certain professionals like lawyers and doctors who society feels should not have their professional liability limited. My knowledge is not exhaustive here, but I am unaware of any jurisdiction that requires you to own investment real estate in your own name.

People are confused because they get a lot of bad advice about LLCs -- what they can and cannot do. They are told -- wrongly in my view -- that they should not bother with LLCs because an LLC will not protect them from liability to a lender or because insurance does the same thing. I will expose the incorrect thinking below.

But first, let's discuss what an LLC actually is. A Limited Liability Company is a corporate form with a separate legal identity. As the name implies, it limits your liability to the value of the asset. It does not eliminate your liability, so when people say you should not bother with an LLC because it does not eliminate all liability, they are confusing the issue. An LLC provides important liability limitation and risk-management capability, and if you are in business you should be taking advantage.

It is true that lenders won't lend to an LLC with no history. If you are new, and the LLC does not have a proven cash flow, a lender will make you sign on the debt yourself. But you should still organize your business in a corporate form, like an LLC. Why? Because banks are not your only potential creditors. Who else is out there? Practically the entire world is a potential creditor. Tenants, vendors, guests of tenants, the mailman, UPS, the cable guy -- in other words, anyone who ever sells anything to the property or sets foot on it is a potential creditor. (Anyone who sets foot on the property is a potential creditor if they slip and fall on the property -- or if they claim they slipped and fell even if they did not.) If the property is owned by an LLC that you own, the LLC is the debtor. If you own the property directly, YOU are the debtor. If an LLC owns the property, the worst the creditor can do to you is take the property. If you own the property, and the property is not worth enough to satisfy the judgment, then the creditor will take the property AND THEN go after your personal assets -- that means your house, your car, your 401(k), your children's 529 plan, your baseball card collection, your monthly paycheck.

Insurance is another must, but it does not replace an LLC. If you have insurance, that's great. It will cover what's in the insurance contract, up to the coverage limit. But insurance does not cover it when you don't pay a vendor. And what if someone is injured on your property and the court awards more than the insurance coverage? If you have an LLC, they may try to go after your assets, but they won't be successful if you have run the business properly. If you own the property in your own name, then you should re-read the previous paragraph about your house, your car, your 401(k), etc.

A very important note about LLCs is, as I said above, that they are separate legal entities. To get LLC protection against creditors, you must respect the separate legal entity. You must IGNORE the advice that some real estate gurus give, which is to run a whole bunch of personal expenses through the LLC. THIS IS THE ABSOLUTE WORST THING YOU COULD POSSIBLY DO. Will it save you some taxes? Maybe, if you don't get audited. Will it destroy the limited liability protection and expose your personal assets to seizure by creditors? Absolutely.

The biggest complaint against LLCs is that they cost money. Yes, you need to file tax returns for them. Yes, you need to do proper accounting. All this is true. These are all costs of doing business. But, remember, this is a business. You are not in real estate for a hobby. This is where the big boys and girls play. If you are not willing to spend a couple hundred dollars a year on LLC costs, you probably should not be in this business at all. But the real question is: Would you rather have the couple hundred dollars extra each year or the peace of mind knowing that your and your family's personal assets are not exposed because you decided to buy an investment property? That choice is up to you, but to me the answer is obvious.

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Scott TrenchPro Member
Rental Property Investor · Denver, CO · Member since 2014 · 2k+ posts · 6k+ votes
11y

I'm a young investor, and purchased a property via the "house-hacking" method back in November of 2014.  The property is under my name, and I rent out the other side to two wonderful tenants.

The work has been done Do-It -Yourself style, and I have gone a few months now successfully living rent free.  

Make no mistake about it, I consider this Duplex to be a business, and run it as such.  I manage the tenants with a separate email address and have a separate bank account for property related expenses.  I pay rent to the business and take money out of the business.

But the property is under my own name.

Reading the OP, I am committing a basic fail against common sense as a real estate investor. But I disagree completely. I had several immense advantages in putting this property under my own name that would have been forfeited were the property under an LLC:

1) I used FHA financing. Try putting down less than 5% on a property within an LLC, especially as a first-time buyer.

2) I am the occupant of the home.  I can rent to whoever I want, and for any reason whatsoever.  It's MY house, not a rental property, and the laws governing it are as such.

3) I had much better interest rates on my mortgage than the LLC would have had access to.

4) My mortgage interest is tax deductible.  In the first few years, where the bulk of my mortgage payments are comprised of interest, this is more advantageous than depreciation.

5) Assuming I live in the property for more than two years, and the property appreciates, I can sell for a tax-free capital gain.

The disadvantages are as follows:

1) Limited protection.  I'm 24 years old and this property is basically the grand total of my worldly assets.  I don't have much to protect.  I also have an umbrella insurance policy.  
This type of protection is good enough for millions of landlords with far more to lose than I. 

2) I'm obviously the owner of the property. I can't hide ownership behind an LLC. In my case, this advantage to the LLC is totally moot. The tenants live next door! I'm obviously the owner.

Conclusion:

Investing through an LLC would have been extremely expensive for me, setup and legal costs set aside. Furthermore, it would have delayed my first purchase significantly, and taken away subjective advantages in running my business as a personal asset.

I think that it is shallow to claim that having an LLC is a "no-brainer". I think that at the very least, my argument here shows that it is a debatable topic and that a reasonable person could conclude that there are indeed strong advantages to operating real estate assets under your own name.

See this reply in the discussion

113 Replies

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  • Investor · Daphne, AL · Member since 2014 · 1k+ posts · 242 votes
    11y
    Yep, LLC.
  • Investor · Fridley, MN · Member since 2015 · 108 posts · 25 votes
    11y

    @Jonathan Twombly

    Jonathan, one objection I have heard to creating an LLC is that courts are inclined to pierce the veil and take your personal assets if a judgment is greater than your insurance coverage. Do you have any experience on this, or thoughts?

  • Investor/Real Estate Agent · Allen, TX · Member since 2012 · 33 posts · 10 votes
    11y

    LLC, if set up and managed correctly is the best way to protect your assets from most judgement.

    However, if I understand correctly, you can only get mortgages for properties owned by LLCs from commercial or portfolio lenders. These lenders often charge a higher mortgage rate than a conventional mortgage lenders. So, if you have no issue with paying higher interest rates, or has the ability to loan to your own LLC to purchase the properties, then LLCs or Series LLCs is the way to go.

    For now, I go with the 2nd best approach, which is to cover myself with Landlord and Umbrella policies.  When my properties are closer to being paid off, I may consider transfer title to LLCs and take the risk of being invoked with "Due On Sale" by my lender.  By then, I would have no problem paying off the mortgage.

  • Cartersville, GA · Member since 2015 · 17 posts · 6 votes
    11y
    Question - what about an S Corp? I heard they were a better option for flippers and an LLC is better for rental investments...anyone have experience with this?
  • Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes
    11y
    Originally posted by @David S.:

    @Jonathan Twombly

    Jonathan, one objection I have heard to creating an LLC is that courts are inclined to pierce the veil and take your personal assets if a judgment is greater than your insurance coverage. Do you have any experience on this, or thoughts?

    David, there is a lot of misinformation about piercing the veil out there, and a lot of it on this site.  

    Courts are not "inclined" to pierce the veil. In reality, the legal presumption is that a corporate entity is valid. The burden of proof is on the person seeking to pierce the veil to show that the LLC was a sham. To show that the LLC was a sham, that person will need to show that there was no real distinction between you and the LLC, by showing, for example, that the LLC did not have its own bank accounts; that you put money into and took money out of the LLC without properly accounting for it; that you ran personal expenses through the LLC; that you underfunded the LLC, etc. It is not an easy burden to prove. Back when I was a lawyer I researched cases on piercing the corporate veil and they are hard to find. A lot of people try, and very few succeed.

    A lot of the problem comes from the fact that sleazy RE gurus tell you to get an LLC or a personal corporation so you can fool the IRS. Of course, they don't put it that way, but they advise you that you can run all kinds of expenses through the LLC (cars are a particular favorite), so that you can pay for things with pre-tax dollars rather than after-tax dollars. But if the IRS audits you, they will disallow these deductions. For example, if your LLC owns a car, they will ask if you limit the driving to LLC-related business? If you use it for other things, they will disallow it. (And, by the way, if you are using it for other things and get into an accident, there is a chance that the LLC's insurer will not cover the claim, because the insurance will not cover personal use, only business use.)

    If you get sued by a tenant or other creditor, that person may look for evidence that you have mixed your personal money and the LLC business. They will look for PRECISELY the things that the gurus say you should use an LLC for, to get over on the IRS. It's pure stupidity to listen to the gurus on this point. If you do what the gurus say with your LLC, and abuse it, then you are basically doing all the things that a plaintiff will need to prove that the LLC was a sham and that they can go after you directly.

    So, what do you need to do to make sure this doesn't happen?  It's simple:  run your business like a business.  It needs bank accounts, an accountant, insurance, and adequate capital in case things go wrong on the property.  As I've said before, if you are not prepared (or too cheap) to do the basic things it takes to run a business, you should not be in real estate at all and you are bound to fail.

    So, can a plaintiff pierce the corporate veil? Sure, if you have disrespected the LLC's separate corporate identity. But here's the thing: if you don't have an LLC, you have ZERO protection for your personal assets. With an LLC, you have the presumption of protection and the plaintiff has to prove otherwise. Which would you rather have -- zero protection or a presumption of protection?

    A lot of people here say you can substitute insurance for an LLC. As I said in the original post, they don't protect the same risks. But the analogy here is people saying -- insurance doesn't cover everything, so why should I bother having insurance? Perhaps there are some people in the world who are negligent enough about their affairs to forego insurance, too, because it might not cover them in some case. But I doubt it. And they should be thinking the same way about an LLC.

  • Investor · Roanoke, VA · Member since 2012 · 1k+ posts · 374 votes
    11y

    i agree with @Jonathan Twombly

    100% LLC

    what are your thoughts on trusts for protection @Jonathan Twombly


    thanks for this post

  • Rental Property Investor · Fuquay-Varina, NC · Member since 2013 · 381 posts · 308 votes
    11y

    Thanks for posting! I'm in the process of setting up a partnership and this is great information. 

  • Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes
    11y
    Originally posted by @Mark Brogan:

    i agree with @Jonathan Twombly

    100% LLC

    what are your thoughts on trusts for protection @Jonathan Twombly

    thanks for this post

    Hi Mark, thanks for your comment.  I'm afraid that I am not an expert on trusts, and can't really help you there.  They are another way of segregating assets and taking them out of your personal name, but beyond that I don't have much to say on the matter . . .

  • Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes
    11y
    Originally posted by @Justin Fraser:

    Thanks for posting! I'm in the process of setting up a partnership and this is great information. 

    You will absolutely need a partnership agreement as well. This can be the LLC agreement. Most states require you to have an LLC agreement if you have an LLC, and if you have partners in the LLC, you absolutely need to have an agreement. Now, you're forming the partnership and you're probably thinking that nothing will ever go wrong, and that is why you need an agreement. Because when things go wrong, you will have less to fight about.

  • Rental Property Investor · Fuquay-Varina, NC · Member since 2013 · 381 posts · 308 votes
    11y

    I absolutely agree about needing a partnership agreement. I'll be working with a local lawyer who I've used in the past to set it up. 

    Are there any advantages to setting up a LLP, rather than a LLC? We both plan to be active in the business, and from what I've read a LLP may be better when one partner is silent.

  • Investor · Fridley, MN · Member since 2015 · 108 posts · 25 votes
    11y

    @Jonathan Twombly

    Thank you very much for your detailed reply. You have convinced me that using an LLC is the only smart way to go.

  • Rental Property Investor · East Wenatchee, WA · Member since 2014 · 10k+ posts · 16k+ votes
    11y

    Not an expert on trusts, but apparently an expert on LLCs.  By what qualification @Jonathan Twombly? Have you had success financing and insuring houses in an LLC on a small scale? That's most people reading this if they bother.

    I and many others (as shown by the low activity on this 2 day old post) are pretty much done with this discussion. A blanket statement saying everyone needs to set up an LLC is reckless at best. Where will you be when a newb quitclaims a house into an LLC whose never heard of a member and has a non-existent Op Agreement? When they are facing a DOS violation and can't get proper hazard insurance, will you be there for them? I hope they at least establish the LLC first and run into the financing and insuring hurdles of trying to place a residential property into a commercial entity beforehand. They'll get out with just a scratch and no real harm.

    I don't claim to be an expert, just someone whose had an LLC for my 5+ unit apt buildings for 10 years. It aligns well for commercial property to get financing and insurance. I would also flip property or wholesale through an LLC. For a specific business purpose that doesn't need conventional financing It's not for every little house solely owned. Landlord insurance is pretty adequate. If you have a partner, look into it. Over and out!

  • Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes
    11y
    Originally posted by @Justin Fraser:

    I absolutely agree about needing a partnership agreement. I'll be working with a local lawyer who I've used in the past to set it up. 

    Are there any advantages to setting up a LLP, rather than a LLC? We both plan to be active in the business, and from what I've read a LLP may be better when one partner is silent.

     HI Justin.  On that point, you should probably consult with a lawyer.  We've set up our various companies as LLCs even though the other partners are essentially LPs.  There are various articles on the internet about the advantages and disadvantages of various corporate forms, but if you are serious you should probably sit down with a partnership attorney and hear what he/she has to say.

  • Investor · Tulsa, OK · Member since 2013 · 38 posts · 1 vote
    11y

    Should one LLC own multiple rental properties? If so, I dont see that as being much better than having them in your own name. Do you suggest an LLC for each property? If so, that would get expensive.

  • Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes
    11y
    Originally posted by @Steve Vaughan:

    Not an expert on trusts, but apparently an expert on LLCs.  By what qualification @Jonathan Twombly? Have you had success financing and insuring houses in an LLC on a small scale? That's most people reading this if they bother.

    I and many others (as shown by the low activity on this 2 day old post) are pretty much done with this discussion. A blanket statement saying everyone needs to set up an LLC is reckless at best. Where will you be when a newb quitclaims a house into an LLC whose never heard of a member and has a non-existent Op Agreement? When they are facing a DOS violation and can't get proper hazard insurance, will you be there for them? I hope they at least establish the LLC first and run into the financing and insuring hurdles of trying to place a residential property into a commercial entity beforehand. They'll get out with just a scratch and no real harm.

    I don't claim to be an expert, just someone whose had an LLC for my 5+ unit apt buildings for 10 years. It aligns well for commercial property to get financing and insurance. I would also flip property or wholesale through an LLC. For a specific business purpose that doesn't need conventional financing It's not for every little house solely owned. Landlord insurance is pretty adequate. If you have a partner, look into it. Over and out!

    Thanks, Steve, for your thoughts.  You raise some excellent points!  Obviously, if you cannot get financed or you are triggering some loan covenant, don't do it.  But that would just circle back to the same point -- if you are not going to do the homework to read your loan docs and consult a lawyer before you act, it's probably not a great idea to get involved in this or any other business.  If you are going to grow, at some point, you really need to provide yourself with the adequate risk protection, and that includes the right corporate set up.

  • Rental Property Investor · Brooklyn, NY · Member since 2014 · 722 posts · 1k+ votes
    11y
    Originally posted by @Bily Elliott:

    Should one LLC own multiple rental properties? If so, I dont see that as being much better than having them in your own name. Do you suggest an LLC for each property? If so, that would get expensive.

    One is better than none, but just remember that anything under one LLC is in the same bucket when it comes to creditors. You can only protect one property from creditors of another by keeping them legally separate. But at least having an LLC, even if it's over all your investment properties, will shield your assets outside your real estate business, such as your personal home, car, savings, etc.

  • Investor · Tulsa, OK · Member since 2013 · 38 posts · 1 vote
    11y

    That makes sense in that it would limit the "pool" of items that a creditor could go after. 

  • Rental Property Investor · SF Bay Area, CA · Member since 2014 · 352 posts · 543 votes
    11y

    Has anyone ever heard of anyone using their LLC to protect themselves in a REAL life situation?

    I understand the theoretical risks but does it every really happen?

    Has anyone calculated the cost of setting up LLCs (setup fee + annual fees + extra CPA costs, etc) out to 10 year period.

    Could that money saved during 10 year period be used for better umbrella insurance? avoid the headaches of dealing with LLCs?

    I just need someone to walk me through a real life scenario where after insurance and umbrella insurance is used up LLC helped in asset protections.

  • Scott TrenchPro Member
    Rental Property Investor · Denver, CO · Member since 2014 · 2k+ posts · 6k+ votes
    11y

    I'm a young investor, and purchased a property via the "house-hacking" method back in November of 2014.  The property is under my name, and I rent out the other side to two wonderful tenants.

    The work has been done Do-It -Yourself style, and I have gone a few months now successfully living rent free.  

    Make no mistake about it, I consider this Duplex to be a business, and run it as such.  I manage the tenants with a separate email address and have a separate bank account for property related expenses.  I pay rent to the business and take money out of the business.

    But the property is under my own name.

    Reading the OP, I am committing a basic fail against common sense as a real estate investor. But I disagree completely. I had several immense advantages in putting this property under my own name that would have been forfeited were the property under an LLC:

    1) I used FHA financing. Try putting down less than 5% on a property within an LLC, especially as a first-time buyer.

    2) I am the occupant of the home.  I can rent to whoever I want, and for any reason whatsoever.  It's MY house, not a rental property, and the laws governing it are as such.

    3) I had much better interest rates on my mortgage than the LLC would have had access to.

    4) My mortgage interest is tax deductible.  In the first few years, where the bulk of my mortgage payments are comprised of interest, this is more advantageous than depreciation.

    5) Assuming I live in the property for more than two years, and the property appreciates, I can sell for a tax-free capital gain.

    The disadvantages are as follows:

    1) Limited protection.  I'm 24 years old and this property is basically the grand total of my worldly assets.  I don't have much to protect.  I also have an umbrella insurance policy.  
    This type of protection is good enough for millions of landlords with far more to lose than I. 

    2) I'm obviously the owner of the property. I can't hide ownership behind an LLC. In my case, this advantage to the LLC is totally moot. The tenants live next door! I'm obviously the owner.

    Conclusion:

    Investing through an LLC would have been extremely expensive for me, setup and legal costs set aside. Furthermore, it would have delayed my first purchase significantly, and taken away subjective advantages in running my business as a personal asset.

    I think that it is shallow to claim that having an LLC is a "no-brainer". I think that at the very least, my argument here shows that it is a debatable topic and that a reasonable person could conclude that there are indeed strong advantages to operating real estate assets under your own name.

  • Investor/Landlord · Farmington Hills, MI · Member since 2011 · 1k+ posts · 1k+ votes
    11y

    Couldn't disagree with the OP more. On the advice of my attorney I have never held my SF rentals in a LLC. For many small landlords (and especially for investors who haven't done anything yet) it is an unnecessary complication. I do carry a $5 million umbrella policy. It is extremely rare for a tenant to get a judgment for even $1 million and any judgment approaching that amount would probably involve gross negligence , awards for which are not limited to the value of the asset and which a LLC would not protect the owner from. My discussions with lawyers have revealed that most LLCs by small landlords are extremely easy to pierce because the investors often put some personal expenses through the LLC by mistake or simply do not keep adequate records.

        I have held SF rentals for more than a decade and have never had a monetary judgment against me. The best protection is to operate your business honestly and to treat people fairly. I am not a lawyer but, to address a point the OP made, it is my understanding that assets held in retirement accounts are protected and are difficult for plaintiffs to access. 


    Asset protection takes many forms. It should be tailored to each investor's situation and business practice in consultation with their lawyer, accountant, insurance agent, and other consultants. To suggest that all investors need an LLC is not correct.

  • Investor · Colorado Springs CO · Member since 2014 · 535 posts · 253 votes
    11y

    What about landlords who manage and work on their own rentals?  From what I have read, if a landlord has their rentals in LLCs, but still manages them himself and does work on it himself, then that would be grounds to pierce the veil and go after the landlord personally.  Maybe this was related to "comingling funds" and such, but as I recall, the concept of LLCs for smaller landlords who manage and work on their own properties generally didn't make sense when an umbrella policy will adequately cover their assets.

    For the record, my husband and I own our house, a triplex, and 3 fourplexes, and our CPA advised us that a LLC likely wouldn't be worth it for us, and that sufficient insurance coverage would be fine for our situation.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    11y

    Well, I'm not a guru selling any program telling people they should or should not have an LLC. Saying that every "investor" needs an LLC is not correct so much. I have held properties individually for over 40 years, when, only a few times was I ever threatened with any legal action. When I was, I threw them to the ground and stomped their little heads, psychologically and with a great deal of intimidation artfully and legally applied, never heard back from the claimants or their attorneys. In other words, defend yourself when you are being attacked, nip it in the bud then and there!

    To be safe, you need two things to hold property, like a single family home, in your own name. 1st, good management. You pay your debts, you are not negligent, you keep the property in good condition, you have good lease agreements, give an equitable consideration to a tenant to hold you harmless and indemnify you, so that agreement holds water. It also means properly accounting for funds, paying your taxes, treating other fairly, compromising  when necessary, that's all good management.  2nd, insurance, lots of it and the right kind. 

    If you are not negligent, you have operated properly, you should never have a claim. You also need to be solvent and pay your debts. 

    I don't really consider owning two houses being "in" the real estate business, just because some kid mows a lawn in the summer for extra spending money doesn't mean he's a landscaper or even in the lawn care business. Size and scope of operations needs to be considered. Own one property that you hold for appreciation and letting a tenant pay for it may not really put you in the business, if it just does better than break even, it's still just an investment.  

    Would you form an LLC to have a garage sale? Life is full of risks.

    Assess the risk level of what you do! Fact, not every mom and pop lost all their assets from some trip and fall con artist with a sleeeeezy attorney. In fact, I don't even know anyone who got nailed for anything above insurance limits with a single family dwelling, 1-4 units.  

    I'm not selling asset protection plans or estate planning or asset protection myths to some broke guy trying to make a living, but these matters certainly have their place. I don't even deal with family without a written plan of what and how we agree to do something, much less with some non-family person. There are business reasons to have an entity and they are necessary for prudent business relationships. 

    Different areas of the country have different views on when, how and why someone is negligent, I ain't in New York City! Guess who is responsible for snow removal for a single family home in my area? The tenant! Yes, I can get sued, both the tenant and I can be responsible for the brush salesman falling, but my insurance is more than his death claim could be, the tenant is on his own. If my tenant has insurance, my insurance company may subrogate against the other insurer.  

    Are you protected by having all your property in an LLC? No! You run over a Nun and six school kids in a crosswalk, your property is at greater risk than from a drunk falling down the steps. You own the company, it is an asset, just as your checking account is an asset, the net worth and everything held by that company can be at risk.

    Better consider liability of management and partnership liability from the inside of your operation as much as from attacks from the outside!!!! Most small business blow up due to partner disputes, not some kid being bit by a dog. 

    If you have a partner, I'd say you need an entity, you must have an operating agreement for an LLC, just filing articles doesn't cut it. What happens at death, incapacitation, bankruptcy of a partner, divorce, do you really want Joe's wife to be your partner and rehab that house? Better check state laws as to how interest will pass under such conditions.

    Piercing the veil, yes, that's probably one of the first things an opposing lawyer will shoot at, you ducks better be in a row. but better yet, deny responsibility. In fact, if you accept responsibility for some accident or screw up, your insurance company might walk away! So, while you're at it denying responsibility might as well defend yourself as to your culpability. But that veil can be pierced through the back door too, from your personal liability.

    Problem with single member LLCs is that you're the man, you fixed the step, you are the manager, you are the owner, you hired the plumber, you are responsible for your acts to the LLC, that risk comes from the inside of your entity.

    I suggest that folks talk to three experts in their field, your accountant as to the business needs of an entity and which one is best for your operation. Secondly, you insurance agent/broker, a commercial lines agent, not you auto insurance agent, they are aware of the types of risks posed, what claim amounts are in your area for different exposures, what types of coverage is warranted and at what amounts. Yes, the third expert is your attorney, a practicing corporate attorney, one who might actually go to court may not be a corporate attorney but a defense attorney for liability and tortuous conduct cases. But, a good business/corporate attorney should do the trick.

    Then decide if your operations really constitute a risk, how much risk and exposure you could have, there is a heck of lot of difference between holding 50 houses and 2, or having 5 apartments or 50 or 500. If it is really just you behind the door or are others involved. What is your partnership liability? 

    I'm not an attorney, never was, never will be, but I've been in various businesses longer than many newbies have been breathing or before some experts got out of grade school, just claiming experience in my real world. Your real world may be different depending on many factors of where you are. I agree that there is a lot of bad and misleading information on the internet, might look to the agenda behind advice given too. Use those local experts to counsel you, you may or may not "need" a business entity. Don't take my word for it, get local advice! :)    

  • Investor · Longwood, FL · Member since 2015 · 221 posts · 130 votes
    11y

    @scotttrench 

    I believe Scott Trench demonstrates very valid reasons for not having an llc. I was wondering how you handle depreciation and mortgage interest if a property is in an llc. Can you still deduct it off your 1040? With my properties in my name. I do get the deductions.  I also wonder if you purchase through an ira or solo 401 k wether you would limit exposure to the value of the 401k. Supposedly, the property is titled in a 401 k name.

  • Mother/ Administartor for Acropolis Fencing · Christchurch, Canterbury · Member since 2015 · 102 posts · 34 votes
    11y

    Thanks for all the input in this  thread. I have been wanting to understand more on this subject. I think it's great to hear both sides of the coin and like anything I think you need to look at the whole picture and your scenario and make your decision based in all of your facts. 

  • Specialist · Honolulu, HI · Member since 2014 · 1k+ posts · 1k+ votes
    11y
    Originally posted by @Jonathan Twombly:

    The LLC debate rages on here at BP. Rarely does a day pass without an investor asking whether they should use an LLC or not. Perhaps BP should have a whole forum just devoted to this question . . .

    Having an LLC is a no-brainer. Real estate is a business, and if you are in business you should not be operating in your own name -- unless the law requires it, such as for certain professionals like lawyers and doctors who society feels should not have their professional liability limited. My knowledge is not exhaustive here, but I am unaware of any jurisdiction that requires you to own investment real estate in your own name.

    People are confused because they get a lot of bad advice about LLCs -- what they can and cannot do. They are told -- wrongly in my view -- that they should not bother with LLCs because an LLC will not protect them from liability to a lender or because insurance does the same thing. I will expose the incorrect thinking below.

    But first, let's discuss what an LLC actually is. A Limited Liability Company is a corporate form with a separate legal identity. As the name implies, it limits your liability to the value of the asset. It does not eliminate your liability, so when people say you should not bother with an LLC because it does not eliminate all liability, they are confusing the issue. An LLC provides important liability limitation and risk-management capability, and if you are in business you should be taking advantage.

    It is true that lenders won't lend to an LLC with no history. If you are new, and the LLC does not have a proven cash flow, a lender will make you sign on the debt yourself. But you should still organize your business in a corporate form, like an LLC. Why? Because banks are not your only potential creditors. Who else is out there? Practically the entire world is a potential creditor. Tenants, vendors, guests of tenants, the mailman, UPS, the cable guy -- in other words, anyone who ever sells anything to the property or sets foot on it is a potential creditor. (Anyone who sets foot on the property is a potential creditor if they slip and fall on the property -- or if they claim they slipped and fell even if they did not.) If the property is owned by an LLC that you own, the LLC is the debtor. If you own the property directly, YOU are the debtor. If an LLC owns the property, the worst the creditor can do to you is take the property. If you own the property, and the property is not worth enough to satisfy the judgment, then the creditor will take the property AND THEN go after your personal assets -- that means your house, your car, your 401(k), your children's 529 plan, your baseball card collection, your monthly paycheck.

    Insurance is another must, but it does not replace an LLC. If you have insurance, that's great. It will cover what's in the insurance contract, up to the coverage limit. But insurance does not cover it when you don't pay a vendor. And what if someone is injured on your property and the court awards more than the insurance coverage? If you have an LLC, they may try to go after your assets, but they won't be successful if you have run the business properly. If you own the property in your own name, then you should re-read the previous paragraph about your house, your car, your 401(k), etc.

    A very important note about LLCs is, as I said above, that they are separate legal entities. To get LLC protection against creditors, you must respect the separate legal entity. You must IGNORE the advice that some real estate gurus give, which is to run a whole bunch of personal expenses through the LLC. THIS IS THE ABSOLUTE WORST THING YOU COULD POSSIBLY DO. Will it save you some taxes? Maybe, if you don't get audited. Will it destroy the limited liability protection and expose your personal assets to seizure by creditors? Absolutely.

    The biggest complaint against LLCs is that they cost money. Yes, you need to file tax returns for them. Yes, you need to do proper accounting. All this is true. These are all costs of doing business. But, remember, this is a business. You are not in real estate for a hobby. This is where the big boys and girls play. If you are not willing to spend a couple hundred dollars a year on LLC costs, you probably should not be in this business at all. But the real question is: Would you rather have the couple hundred dollars extra each year or the peace of mind knowing that your and your family's personal assets are not exposed because you decided to buy an investment property? That choice is up to you, but to me the answer is obvious.

    That said, do you advise having a single LLC for all rentals or each rental in its own LLC?

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