Forming an LLC for Real Estate Investments: Pros & Cons

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Over the last decade, limited liability companies (LLCs) have become one of the most preferred forms of business entities through which to hold title to investment real estate properties. LLCs did not come into existence in the United States until 1977 when the State of Wyoming enacted special legislation to accommodate the needs of oil companies. Prior to LLCs, real estate investors seeking limited liability protection were largely limited to using corporations to acquire title—a form of entity that has potential drawbacks. Florida followed Wyoming’s lead a few years later by enacting its own LLC statute in 1982 and now all 50 states have enacted legislation creating some form of the LLC business structure. The insulation from personal risk exposure for real estate investors provided by LLCs, coupled with the relative ease of administration and potential tax benefits, make ownership of investment property through an LLC a very desirable option in most instances.

LLC vs. Liability Insurance

Although there are many benefits to holding real property assets through an LLC, a limited liability company may not be the best holding vehicle for every property owner. For many real estate investors, the trouble of forming and maintaining a company isn’t worth protection from the theoretical threat of a lawsuit, particularly when affordable liability insurance is available.

That said, real estate investors that rely solely on insurance as a means of protection from personal liability take a significant risk. Liability policies typically have limits, exceptions and carve-outs. While the chance of a loss that exceeds policy limits may be remote, if it happens, the consequences can be devastating.

Under current laws and market trends, the popularity of real estate holding LLCs is very likely to continue to increase as more and more property owners seek to take advantage of the benefits offered by this form of entity.

LLCs Limit Personal Liability 

First and foremost, LLCs limit personal vulnerability to potential lawsuits related to the property. Consider the situation in which the owner of an investment property leases it to a tenant who decides to throw a big party, during which one of the tenant’s guests falls over a balcony. In today’s legal climate, it is quite possible that the injured guest would pursue a claim based on the “unsafe condition” of the rental dwelling. More often than not, the owner would be named in any lawsuit resulting from the incident.

If that rental property were owned by a real estate investor individually, he or she would be named in the lawsuit and would have to defend his or her personal assets from the plaintiff’s claims. In contrast, if that property were owned by an LLC, the owner’s risk exposure would be insulated by the protection of the company, leaving only the assets owned by the LLC (as opposed to all of the owner’s personal assets) exposed to potential lawsuits.

Pass-Through Taxation for Single & Multimember LLCs

Another advantage of an LLC is the owners’ ability to enjoy the benefits of pass-through taxation. In 1988, the IRS released Revenue Ruling 88-76 which declared that Wyoming LLCs would be taxed as partnerships even though they provide for corporate-like protection against liability. C corporations, in contrast, are subject to double taxation—once at the corporate level and again when dividends are distributed to shareholders. While the owners of corporations can achieve pass-through taxation by making an “S” election, S corporations are subject to many other restrictions and requirements that limit their utility in the real estate investment realm. The 1988 revenue ruling was a true game-changer because it enabled real estate investors to avoid double taxation by acquiring property through an LLC while enjoying a liability shield.

Under the default tax classification rules, the IRS classifies a real estate holding company with one owner as they would a sole proprietorship, namely as a “disregarded entity.” As a result, income and capital gains from the LLC pass through directly to the owner, who would only have to pay taxes as an individual, while still enjoying the protections offered by the LLC liability shield.

Since there is no separate LLC tax, the owner can avoid double taxation on both the rental income generated by the property and the appreciation in value of the property upon disposition. Moreover, the owner of a single-member LLC can deduct mortgage interest similar to a sole proprietor based on current IRS rules.

Real estate holding companies that have several owners are known as “multimember” LLCs and are generally taxed by the IRS like partnerships, meaning that the LLC files an “informational” tax return, but does not actually pay taxes itself.

Multimember LLCs also enjoy the benefits of pass-through taxation as the LLC passes its profits and losses through to its members, who report their portion of the LLC’s business income or losses on either a Schedule C, K or Form 1065 with their individual income tax returns. This means that both single member and multimember LLCs offer the benefits of pass-through taxation of profits and losses and limited liability and personal protection for the owners.

LLCs Can Make Business Life Easier

LLCs offer numerous other general benefits relative to other entity forms that aren’t necessarily unique to—but certainly apply to—the use of LLCs to hold real estate investments.

  • When delegating management responsibilities, LLCs enjoy much greater flexibility than either a corporation or partnership. While corporations are statutorily required to have officers and directors, the LLC can be easily managed by its owners or third-party managers.
  • In the many states that impose increased fees based on the authorized number of shares, LLCs may pay lower state registration and maintenance fees than corporations.
  • Owners of LLCs can take advantage of the tremendous flexibility in the distribution of profits, as determined by the LLC’s operating agreement. Cash flow distributions do not have to be pro rata according to ownership like an S corporation, which gives the owners the ability to financially reward the “sweat equity” effort of select members through appropriate distributions of available cash flow.
  • Unlike an S corporation, foreign ownership and investment in U.S. real estate is possible through an LLC.
  • LLC owners can also easily transfer their ownership in real estate holdings by proactively gifting the company’s membership interests to their heirs each year. Over time, it is entirely possible to effectively pass ownership of real estate owned by an LLC to loved ones without ever having to formally execute and record a new deed. This enables property owners to avoid transfer and recording taxes and fees, which can be substantial in many states.

Although not every company will seek these particular benefits, it’s safe to say that LLCs can offer steep rewards to companies that choose to take advantage of them.

Explore Your Options

Many business owners choose to form an LLC because they are unfamiliar with the many legal nuances between different entity choices, and they simply assume that an LLC offers the most protection from risk because it has “limited liability” in its name.

In reality, a properly formed and operated LLC does indeed limit the personal liability of the owners, as much as U.S. law allows, by affording the owners no personal risk above and beyond their investment in the company—but, in many instances, so do corporations and certain partnerships.

Of course if a small business owner of any entity form fails to respect the separate and distinct identity of the business or observe statutorily required corporate formalities (such as co-mingling personal and business funds, paying owners instead of creditors, or failing to maintain a registered agent), the integrity of the corporate shield provided by law will be compromised and potentially expose the owners to personal liability. Generally speaking, though, the basic requirements to operate an LLC within the confines of the corporate statutes are not particularly onerous.

Minimize Risks with the Right Strategy

There is simply no way to eliminate all the risks associated with starting a real estate investment business, but you can easily improve your chances of success by complying with the corporate formalities required by applicable laws, even though these steps may seem tedious and somewhat confusing.

If you are in the market for investment real estate, you should at least consider whether or not the acquisition through an LLC is the right choice for you. If so, it is much easier to purchase the property through the LLC to begin with, as opposed to trying to transfer the real estate to an entity at a later date where a lender might have to consent to the transaction. An LLC may not offer any more or less protection from outside lawsuits than a properly formed and operated corporation or limited liability partnership, but it does offer many other advantages that make it the most desirable form of entity in many cases, particularly with respect to real estate holding companies.

 

About the author:

Jeffrey Weaver is an AV-rated transactional attorney and business consultant, and is a partner of DunlapWeaver. His practice primarily focuses on general business law, franchising and intellectual property matters. For more information or to schedule a consultation, click here

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