LLC Misconceptions and Education

LLC Misconceptions and Education

Member since 2020 · 223 posts · 233 votes

So bear with me - I'm no expert and am simply trying to help instruct others but also educate myself if I'm incorrect on what I know. I've been reading up today on a bunch of forums including this one and see WILDLY varying beliefs on LLCs, insurance, and protecting assets. I see a TON of directly conflicting information about stuff that should be set in stone and it's a little concerning. So help me out here, and hopefully this can help others.

1. LLCs and Insurance are completely separate purpose liability shielding tools. In fact, it seems you should be using both for the best possible protection. When someone sues you, you first check if your insurance will cover the damages. If your insurance runs out, or your insurance says you screwed up, they go after your personal assets. At this point, an LLC matters. If your LLC was sued, they can only take your LLC assets. If you personally were sued, they can take everything from you.

2. LLC's serve to separate your assets from each other, so if one is targeted in a lawsuit, your other assets are protected. If you own a rental home in an LLC, and own your personal home in your name. If your renter sues you, they must sue your LLC. If they win damages, and those damages go above your equity in that home and assets in that LLC, they cannot then go after your personal home.

3. Insurance serves as a monetary buffer between whoever is suing you, and your assets that are included in the lawsuit. Insurance does not cover 100% of issues, as often insurance companies are notorious for trying to weasel out of any lawsuits and blame you. They are in business to make money, not help you.

4. LLC's do not have coverage issues like insurance does. They cover you completely regardless of the issue at hand, UNLESS someone has 'pierced the corporate veil' which means they found a way that your LLC was not in compliance. Usually, there are 3 issues that you must keep up with in order to prevent this. A. You must have financial separation. Keep a business bank account that you ONLY use for your LLC revenue/profits/expense etc. B. You must have yearly corporate minutes. This means once a year hold a meeting with your LLC members, and write down notes in a journal. C. You must have all your proper paperwork, documentation showing ownership, rules, etc. Articles of Organization is one example. This varies by state.

5. If someone sues your personal assets, your assets within your LLC are protected (varies by state, and sometimes they can take distributions?)

6. In an ideal world, everyone would put each house under a separate LLC, then they would get proper STR home insurance, and THEN they would get umbrella insurance on top of that. This is obviously the most expensive, but should be the most protective.

7. Airbnb/other booking website insurance is often useless. Don't count on the $1 million insurance policy they claim every owner has. There are countless horror stories online about airbnb weaseling out of claims. If your insurance company wants to weasel out of claims, you can bet that airbnb has even less interest in paying up.

8. LLCs for the most part are not expensive. They are pass-through entities that will not change your taxes whatsoever(unless you go S corp, but thats another topic entirely). Usually its $100-$300 to file in each state, and perhaps aonther $100 a year to maintain.

9. It is not difficult to maintain your LLC status. Doing the 3 things to maintain your corporate veil I mentioned above are not difficult, and are just a few hours a year of effort.

10. A significant number of lenders do not want to give a loan to an LLC, because they want you to be personally liable if you default on the mortgage. Consequently, it is difficult in some ways to transfer ownership from a personally owned asset to one with an LLC, because it MUST be run by your mortgage lender. You can't do it without refinancing with them, often incurring title transfer taxes (thousands of dollars based on state) and mortgage fees.

11. Some ordinances in certain counties/states do not allow STR's to be held by an LLC. Check with your local county and regulations for applying for an STR permit to see if this is the case.

Again I'm not an expert, and I'd love to be called out! Please correct me on anything that is incorrect or a misconception here. Cheers.

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Member since 2019 · 17 posts · 26 votes
5y

Was speaking with my attorney last night and he had indicated there was some case law around the due on sale clause and how you do not trigger it when placing rental properties in a LLC.

Below is the exact language I found with regard to that.

Hope this help elevate some fear we may have around that clause.

Fannie Mae published new guidelines for lenders on November 8, 2017 that allow transfers to LLCs! Here is the exact language:

This means that as long as the loan was obtained on or after June 1, 2016 and the LLC you transfer it to is controlled by you, the borrower, then the lender must allow the transfer to occur without triggering the due on sale clause.

See this reply in the discussion

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  • Investor · Marin County California · Member since 2018 · 1k+ posts · 2k+ votes
    5y

    Scott: you should google "piercing the corporate veil [your state]" to gain a fuller understanding of the limitations of LLC's and other entities for shielding personal assets.

    The short answer is that nothing is bulletproof. Landlord insurance with an umbrella is a must for any investor, in my book. Whether you need an LLC when you own a single rental will depend on a host of additional factors including cost of formation, compliance and tax/ tax withholding consequences.

  • Greg ScottPro Member
    Rental Property Investor · SE Michigan · Member since 2014 · 4k+ posts · 6k+ votes
    5y

    Scott:

    I think you did a good job summarizing the issues. I would add a few thoughts for you.

    Where most people get sidetracked is they want to get a conventional mortgage AND have the property in an LLC. Fannie Mae will not allow this. So, some will get the mortgage in their name and then move it to an LLC which technically violates the due on sale clause. Usually the bank won't call the note, but theoretically they could so this adds risk of a different kind. While not a lawyer myself, I could see one arguing that with the mortgage in your personal name, you are effectively comingling funds. This situation also creates additional problems if later on someone wants to refi. If the property is in an LLC, your options are more limited.

    I've heard John Hyre describe a situation where a NYC cab company put one taxi cab each in its own LLC. After an accident the company got sued. The judge threw out all of the LLCs because it appeared the LLCs were created simply to shield liability and that an individual cab was not a viable company. In other words, there are more ways to pierce the corporate veil than just what you've listed. Each LLC must past the sniff test as a real business operation.

    Finally, I would say there is a cost / benefit and risk / reward to any decision. On this forum I've seen recent college grads that don't have two nickels to rub together out forming LLCs. No attorney in their right mind is going to go after them. Most attorneys are lazy. They will go after the low-hanging fruit. Typically they don't go beyond what insurance offers. If you run your properties correctly and legally, your property insurance plus umbrella insurance is a far more enticing target than trying to get a jury to force you to sell you personal residence to pay off a lawsuit. If my name were Elon Musk, I'd definitely put everything in an LLC as I'm a huge target. I sleep very well at night without having my single family rent properties in an LLC, but I run my properties correctly and have excellent insurance.

  • John UnderwoodPro Member
    Investor · Greer, SC · Member since 2014 · 13k+ posts · 17k+ votes
    5y

    4 and 5 are not accurate. 

    If someone sues you they can go after stuff you own like stuff in your LLC. If someone trips and falls in a property owned by an LLC they typically can only sue the Owner which is the LLC and any assets it owns are at risk.

    It is best to make it difficult for someone to determine what you own. The harder you make this the less likely you will appear to have deep pockets that someone would want to sue.

  • Member since 2019 · 17 posts · 26 votes
    5y

    Was speaking with my attorney last night and he had indicated there was some case law around the due on sale clause and how you do not trigger it when placing rental properties in a LLC.

    Below is the exact language I found with regard to that.

    Hope this help elevate some fear we may have around that clause.

    Fannie Mae published new guidelines for lenders on November 8, 2017 that allow transfers to LLCs! Here is the exact language:

    This means that as long as the loan was obtained on or after June 1, 2016 and the LLC you transfer it to is controlled by you, the borrower, then the lender must allow the transfer to occur without triggering the due on sale clause.

  • Member since 2020 · 223 posts · 233 votes
    5y
    Originally posted by @Jeffrey Klawitter:

    Was speaking with my attorney last night and he had indicated there was some case law around the due on sale clause and how you do not trigger it when placing rental properties in a LLC.

    Below is the exact language I found with regard to that.

    Hope this help elevate some fear we may have around that clause.

    Fannie Mae published new guidelines for lenders on November 8, 2017 that allow transfers to LLCs! Here is the exact language:

    This means that as long as the loan was obtained on or after June 1, 2016 and the LLC you transfer it to is controlled by you, the borrower, then the lender must allow the transfer to occur without triggering the due on sale clause.

     Gotcha, so you're saying that its very easy to transfer a personal asset into an llc asset in terms of the lender being forced to approve it, but I believe this would still trigger transfer taxes correct? As well as refinance charges?

  • Member since 2020 · 223 posts · 233 votes
    5y
    Originally posted by @Darius Ogloza:

    Scott: you should google "piercing the corporate veil [your state]" to gain a fuller understanding of the limitations of LLC's and other entities for shielding personal assets.

    The short answer is that nothing is bulletproof. Landlord insurance with an umbrella is a must for any investor, in my book. Whether you need an LLC when you own a single rental will depend on a host of additional factors including cost of formation, compliance and tax/ tax withholding consequences.

     Hey Darius thank you for the input. I don't quite see where you disagree with anything I've said however? Was there something incorrect? I'd love to learn more. Of course everyone should google their own state laws and exceptions. This is just a generic guide to clear up some misconceptions that I've seen repeated endlessly.

  • Member since 2020 · 223 posts · 233 votes
    5y
    Originally posted by @John Underwood:

    4 and 5 are not accurate. 

    If someone sues you they can go after stuff you own like stuff in your LLC. If someone trips and falls in a property owned by an LLC they typically can only sue the Owner which is the LLC and any assets it owns are at risk.

    It is best to make it difficult for someone to determine what you own. The harder you make this the less likely you will appear to have deep pockets that someone would want to sue.

    Thanks John, I wrote a correction to #5 based on this I found https://law.stackexchange.com/...

    What about #4 is incorrect?

  • John UnderwoodPro Member
    Investor · Greer, SC · Member since 2014 · 13k+ posts · 17k+ votes
    5y
    Originally posted by @Scott K.:
    Originally posted by @John Underwood:

    4 and 5 are not accurate. 

    If someone sues you they can go after stuff you own like stuff in your LLC. If someone trips and falls in a property owned by an LLC they typically can only sue the Owner which is the LLC and any assets it owns are at risk.

    It is best to make it difficult for someone to determine what you own. The harder you make this the less likely you will appear to have deep pockets that someone would want to sue.

    Thanks John, I wrote a correction to #5 based on this I found https://law.stackexchange.com/...

    What about #4 is incorrect?

    An LLC will not necessarily cover you completely. As in the example where you are sued personally.

  • Greg ScottPro Member
    Rental Property Investor · SE Michigan · Member since 2014 · 4k+ posts · 6k+ votes
    5y

    True. For example, if you crash your car into someone, they could sue you. If they win damages beyond what insurance will cover they can come after your assets. The LLC and its holdings are one of your assets.

  • Member since 2019 · 17 posts · 26 votes
    5y
    Originally posted by @Scott K.:
    Originally posted by @Jeffrey Klawitter:

    Was speaking with my attorney last night and he had indicated there was some case law around the due on sale clause and how you do not trigger it when placing rental properties in a LLC.

    Below is the exact language I found with regard to that.

    Hope this help elevate some fear we may have around that clause.

    Fannie Mae published new guidelines for lenders on November 8, 2017 that allow transfers to LLCs! Here is the exact language:

    This means that as long as the loan was obtained on or after June 1, 2016 and the LLC you transfer it to is controlled by you, the borrower, then the lender must allow the transfer to occur without triggering the due on sale clause.

     Gotcha, so you're saying that its very easy to transfer a personal asset into an llc asset in terms of the lender being forced to approve it, but I believe this would still trigger transfer taxes correct? As well as refinance charges?

     Transfer taxes are location based and I would not paint with that broad of a brush.  I know in my area that would not be the case. 

    You would only incur refinance charges if you where to refinance the original loan. But you would have that regardless if you where or where not putting it in an LLC. Placing it in a LLC would be done after you have closed any loans on the property in question.

  • Rental Property Investor · Streetman, TX · Member since 2018 · 527 posts · 495 votes
    5y

    @Jeffrey Klawitter

    That is exactly correct. Last year I was able to transfer a property I purchased in my personal name with a FannieMae loan into an LLC. At first Wells Fargo tried to refuse until I sent them the link you referenced. You have to be persistent but it is possible.

  • Investor · Marin County California · Member since 2018 · 1k+ posts · 2k+ votes
    5y

    @Scott Kunz Your description of the protections arising from the LLC structure struck me as a bit on the sanguine side. You can follow all corporate formalities with religious fervor and still get stuck with a personal judgment on an alter ego theory (in many states).

  • Morris County, NJ · Member since 2020 · 5k+ posts · 2k+ votes
    5y

    @Scott Kunz

    Let give a couple of thoughts...

    I think one thing that is being discussed around is the charging order protections. Some States are better than others. Outside protection means if somebody sues you personally, they couldn't go after the LLC personally. Inside protection means if the LLC is sued, they can't come after you personally as easily. The outside protection varies much more State to State is my understanding

    The Due on Sale clause is in some ways the least of your worries when it comes to the topic of asset protection of the LLC. As it was just stated, using your LLC as an alter-ego is just as bad as co-mingling to have your corporate veil pierced. Look at this action of quit claim deeding the Title from yourself to the LLC. How would that work as an arms length transaction? How would two strangers do that? For example, you deed me your property for $1, and you still hold the mortgage.... and now you expect me to rent out the property for you, take the rent and give it to you and you also claim all the rental deductions (granted via the LLC). Hmm also, have you thought about whose bank account makes the mortgage payment? It should be yours since it's you gave the mortgage. Why should I (or the LLC if we step away from my example) make the mortgage payment? Many seem to people quit claim deed, worry about the Due on Sale clause, then basically co-mingle their funds now by having the LLC pay your personal mortgage. Oh by the way, I believe the liability protection of the LLC is decreased is the mortgage isn't held/given by the LLC. You only achieve the limited liability protection if the LLC "owns" it...

    In my layman's opinion, this whole ‘buy personally then quit claim' methodology is a complete mess. Some of it can be solved/addressed. Certainly if you are forming the LLC after the fact, once. But to do it after each purchase just forms the alter-ego pattern. You are using your personal name to get the mortgage, but want the asset protection of the entity. I don't believe it works that way. The entity must effectively standalone as is my understanding.

    Good luck.

  • Member since 2020 · 223 posts · 233 votes
    5y
    Originally posted by @David M.:

    @Scott Kunz

    Let give a couple of thoughts...

    I think one thing that is being discussed around is the charging order protections. Some States are better than others. Outside protection means if somebody sues you personally, they couldn't go after the LLC personally. Inside protection means if the LLC is sued, they can't come after you personally as easily. The outside protection varies much more State to State is my understanding

    The Due on Sale clause is in some ways the least of your worries when it comes to the topic of asset protection of the LLC. As it was just stated, using your LLC as an alter-ego is just as bad as co-mingling to have your corporate veil pierced. Look at this action of quit claim deeding the Title from yourself to the LLC. How would that work as an arms length transaction? How would two strangers do that? For example, you deed me your property for $1, and you still hold the mortgage.... and now you expect me to rent out the property for you, take the rent and give it to you and you also claim all the rental deductions (granted via the LLC). Hmm also, have you thought about whose bank account makes the mortgage payment? It should be yours since it's you gave the mortgage. Why should I (or the LLC if we step away from my example) make the mortgage payment? Many seem to people quit claim deed, worry about the Due on Sale clause, then basically co-mingle their funds now by having the LLC pay your personal mortgage. Oh by the way, I believe the liability protection of the LLC is decreased is the mortgage isn't held/given by the LLC. You only achieve the limited liability protection if the LLC "owns" it...

    In my layman's opinion, this whole ‘buy personally then quit claim' methodology is a complete mess. Some of it can be solved/addressed. Certainly if you are forming the LLC after the fact, once. But to do it after each purchase just forms the alter-ego pattern. You are using your personal name to get the mortgage, but want the asset protection of the entity. I don't believe it works that way. The entity must effectively standalone as is my understanding.

    Good luck.

     Hey David, I don't think I suggested putting the title in the llcs Name but retain the mortgage? You can't do that legally anyways, the mortgage company would come after you when they see the tax information change. They would close the loan. Perhaps I should have made that clear from the above info. 

  • Member since 2020 · 223 posts · 233 votes
    5y
    Originally posted by @Darius Ogloza:

    @Scott Kunz Your description of the protections arising from the LLC structure struck me as a bit on the sanguine side. You can follow all corporate formalities with religious fervor and still get stuck with a personal judgment on an alter ego theory (in many states).

     Interesting I haven't heard of that before. Any examples or ways to avoid it? 

  • Michael PlaksPro Member
    Tax Accountant / Enrolled Agent · Houston, TX · Member since 2014 · 5k+ posts · 6k+ votes
    5y

    @Scott K.

    To your #8 of being inexpensive. It depends. In CA, you have to pay $800/yr.

  • Michael PlaksPro Member
    Tax Accountant / Enrolled Agent · Houston, TX · Member since 2014 · 5k+ posts · 6k+ votes
    5y
    Originally posted by @Jeffrey Klawitter:

    Fannie Mae published new guidelines for lenders on November 8, 2017 that allow transfers to LLCs! Here is the exact language:
    ...
    This means that as long as the loan was obtained on or after June 1, 2016 and the LLC you transfer it to is controlled by you, the borrower, then the lender must allow the transfer to occur without triggering the due on sale clause.

     I found the paragraph immediately after what you quoted somewhat troubling:

    "The servicer must notify the borrower that a property transferred to an LLC must be transferred back to a natural person prior to any subsequent refinance application in order to meet Fannie Mae’s Selling Guide underwriting requirements."

    Thoughts?

  • Rental Property Investor · FL · Member since 2016 · 271 posts · 92 votes
    3y
    Quote from @Greg Scott:

    Scott:

    I think you did a good job summarizing the issues. I would add a few thoughts for you.

    Where most people get sidetracked is they want to get a conventional mortgage AND have the property in an LLC. Fannie Mae will not allow this. So, some will get the mortgage in their name and then move it to an LLC which technically violates the due on sale clause. Usually the bank won't call the note, but theoretically they could so this adds risk of a different kind. While not a lawyer myself, I could see one arguing that with the mortgage in your personal name, you are effectively comingling funds. This situation also creates additional problems if later on someone wants to refi. If the property is in an LLC, your options are more limited.

    I've heard John Hyre describe a situation where a NYC cab company put one taxi cab each in its own LLC. After an accident the company got sued. The judge threw out all of the LLCs because it appeared the LLCs were created simply to shield liability and that an individual cab was not a viable company. In other words, there are more ways to pierce the corporate veil than just what you've listed. Each LLC must past the sniff test as a real business operation.

    Finally, I would say there is a cost / benefit and risk / reward to any decision. On this forum I've seen recent college grads that don't have two nickels to rub together out forming LLCs. No attorney in their right mind is going to go after them. Most attorneys are lazy. They will go after the low-hanging fruit. Typically they don't go beyond what insurance offers. If you run your properties correctly and legally, your property insurance plus umbrella insurance is a far more enticing target than trying to get a jury to force you to sell you personal residence to pay off a lawsuit. If my name were Elon Musk, I'd definitely put everything in an LLC as I'm a huge target. I sleep very well at night without having my single family rent properties in an LLC, but I run my properties correctly and have excellent insurance.


    Excellent mind sent and lenses to see this, thank you for sharing. Question would it be the same concept if one is wholesaling properties? Also I assume an answer to having an llc is definitely needed if you are using HML like you said conventional mortgage won't lend to llc.

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