How to legally protect yourself in a partnershp

How to legally protect yourself in a partnershp

Rental Property Investor · Metro Detroit · Member since 2015 · 83 posts · 17 votes

Hey BP Folks,

Was hoping to get some insight on the current situation I am in.

So I am looking to get an off market 20 property package under contract from an older landlord looking to get out of the business. 

I have found a hard money lender who is willing to partner with me on the deal, and come to the table with all the cash to purchase.  

We are still ironing out details, but as of now its looking like he will be loaning me half of the purchase price, we will split the profits 50/50 (after expense budgeting), and I will pay back the loan each month with a portion of my 50% profits.  He will own all the equity initially, but each month as I pay down the loan, I will "buy into" the equity.  So once my loan is paid off, we will be at a 50/50 split across the board on everything.

My question is, are there things I need to be doing to legally to protect myself in this scenario, if God forbid something goes south after the deal has closed? 

Of course I would do everything in my power to make this go as smoothly as possible, but I just want to make sure that I am covered as best as possible.  Would this be looked at as a syndication in a sense, since I am not coming to the table with any funds, although he would be loaning me funds? Or if we lost money, would I be liable because I set up the deal/partnership?  Since my partner would own all the equity initially, in theory would he be able to "kick me out of the company" if he wanted do?  In analyzing the best and worse case scenarios, I am  really just trying to understand my exposure in a deal like this.

Any general or specific advise would be greatly appreciated!!!

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Rental Property Investor · Glen Rock, NJ · Member since 2015 · 3k+ posts · 2k+ votes
7y

@Samuel S.

Are both of you will be involved in the major decision making? Then it wouldn't be a syndication. You should talk to an attorney to discuss the best legal structure for the deal. Perhaps TIC would work, but an attorney will advice you. Your potential partner will get a note on the loan he's giving you, and aside from that, you will have a partnership agreement with the terms and roles spelled out! Do a reference check on him - speak with a few of his past clients to get a better sense of who you're going to work with.

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  • Rental Property Investor · RVA · Member since 2016 · 5k+ posts · 4k+ votes
    7y

    I'm not a lawyer, just a guy who does syndications. Since he's loaning you the funds, it would not be a syndication. 

    You should probably talk about "what if it goes wrong" between the two of you now. If this is considered a loan, I would expect you to lose your chunk if you default on the loan from the other party.

    Is he putting up all of the funds to buy the portfolio outright? Is he doing any work other than stroking a check?

  • London · Member since 2019 · 722 posts · 386 votes
    7y

    How well do you know the bridge/hard money lender? Can you be certain that none of the funds they bring to the table have come from other investors?

  • Rental Property Investor · Metro Detroit · Member since 2015 · 83 posts · 17 votes
    7y

    @Taylor L. Thanks for your input! 
     That’s what I had assumed. And yes he would be putting up all the funds to purchase outright. For the most part it would be passive for him and I would manage the package. The details would of course be spelled out in an operating agreement. 

    @John Corey That's a great point. I do not know him extremely well, but I've made offers in the past with using his HML term sheet for the proof of funds. But so far have not done business with him. The funds would be coming from a line of credit, but I do not know for certain if he would be using others funds as well. If he is, could that be looked at as a syndication?

  • Rental Property Investor · Glen Rock, NJ · Member since 2015 · 3k+ posts · 2k+ votes
    7y

    @Samuel S.

    Are both of you will be involved in the major decision making? Then it wouldn't be a syndication. You should talk to an attorney to discuss the best legal structure for the deal. Perhaps TIC would work, but an attorney will advice you. Your potential partner will get a note on the loan he's giving you, and aside from that, you will have a partnership agreement with the terms and roles spelled out! Do a reference check on him - speak with a few of his past clients to get a better sense of who you're going to work with.

  • Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    7y

    @Samuel S.

    Probably need to get an attorney involved. The structure you have in mind is pretty convoluted. Aside from the legal issues, it may have some convoluted tax implications depending on how you and your partner structure the deal. It's convoluted enough that if you and your partner came to me, I would suggest both sides have separate lawyers to represent them during the negotiation. 

    I'm not saying you and your partner cannot work something out. The issue is that it would cost a decent amount in legal fees to get it done properly. Working on a 50/50 LLC is already complicated due to the fact that there is no one-size-fits-all model for it. Adding the proposed equity structure on top of that makes it even more complicated.

    Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it for legal advice. Always consult with your attorney before you rely on the above information.

    • London · Member since 2019 · 722 posts · 386 votes
      7y
      Originally posted by @Samuel S.:

      @Taylor L. Thanks for your input! 
       That’s what I had assumed. And yes he would be putting up all the funds to purchase outright. For the most part it would be passive for him and I would manage the package. The details would of course be spelled out in an operating agreement. 

      @John Corey That's a great point. I do not know him extremely well, but I've made offers in the past with using his HML term sheet for the proof of funds. But so far have not done business with him. The funds would be coming from a line of credit, but I do not know for certain if he would be using others funds as well. If he is, could that be looked at as a syndication?

      My concerns revolves around how the HML person created the funds they are using. If they are operating outside the law (pooling of funds) and then those funds are used in this project with some sort of JV structure, the deal might get contaminated.

      So, check the source of funds if you are working with them as a business partner. As others have said, you can reduce the risk with the right legal advice. It will be a partial defence later if there is action against your business partner.

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