How to Form an LLC for Real Estate Investments: Pros & Cons

If you’re looking for a way to increase cash flow or diversify your growing portfolio, then real estate investing may be a great long-term investment. After all, housing is a necessity, and the likelihood of appreciation may be enough to overcome economic downturns. 

Whether you are just getting started or are still on the fence, you may have considered forming a real estate limited liability company (LLC). With this business structure, you may be able to reap the benefits of added asset protection and tax advantages. Explore our list of pros and cons in addition to the steps you’ll need to start and maintain your newfound LLC.

 

Understanding real estate LLCs

A real estate LLC is a business entity that allows individuals, from a first-time homeowner to an experienced real estate agent and seasoned real estate investor, to conduct the buying, selling, and renting of real estate property with added protections from personal liability. Considering the unpredictable U.S. real estate market, forming a real estate LLC is an appealing option to safeguard your personal assets.

The purpose of a real estate LLC is to provide the opportunity to conduct a real estate business with single or multiple members in hopes of generating a profitable return on investment (ROI) while protecting individual assets. In other words, your personal property and personal finances will be exempt from risk if legal issues arise. Instead, all liability will fall onto the company, which means only business assets will be at risk. 

If you are looking for a way to invest in real estate with a high probability of increased value and lower taxes, you may be able to successfully navigate the waves of the economy with this business structure. Below are some pros and cons to consider before starting a real estate LLC.

Separating each property in a real estate holdings portfolio with its own LLC can provide an extra layer of protection and effectively diminish the risk associated with the business entity.

Real estate LLC basics

For real estate management, an LLC serves as a unique legal entity that provides investors with liability protection and tax advantages. To initiate a small business as a real estate LLC, you'll need to organize and collaborate to acquire an employer identification number (EIN), open a commercial or business bank account, obtain the requisite business licenses, and make essential business decisions regarding the business model.

Creating a real estate LLC gives rise to multiple benefits, such as safeguarding assets, tax-related advantages, and flexibility in rental property management. However, there are some drawbacks to establishing an LLC, such as formation and ongoing costs, challenges in securing a mortgage, and limited liability protection.

Real estate LLCs vs. other business structures

When considering a real estate business structure, options include:

• Sole proprietorship
• C corporation
• S corporation
• LLC

Real estate LLCs allow profits and losses to be directly passed on to individual members, thereby circumventing the double taxation that corporations often face.

Sole proprietorships vs. LLC

A sole proprietorship does not require any fees or additional legal steps but lacks the protections offered by an LLC.

S corporations vs. LLCs

S corporations offer pass-through taxation but with limits on the number of shareholders. Conversely, an LLC establishes an independent legal framework for property ownership, offering investors personal liability protection and tax benefits.

C corporations vs. LLCs

C corporations are separate taxable entities. Unlike an S corp that allows for pass-through taxation, C corporations are taxed at the corporate level, and individual shareholders pay taxes on their dividends on their individual tax returns. This differs from an LLC, where taxable income is reported on the owner's personal income taxes.

Advantages of forming a real estate LLC

Establishing a real estate LLC comes with numerous advantages, like safeguarding assets, using liability-insurance-availing tax benefits, and ensuring management flexibility. Let's delve into these advantages to understand the benefits of real estate investing. 

Asset protection

LLCs protect investors' personal assets from lawsuits and liabilities related to their real estate investments. By forming an LLC, the assets of the owner, such as bank accounts and personal property, are generally safeguarded from claims against the business. For example, a tenant slips on ice, falls, and sues the LLC for failure to shovel the walk. 

Whatever the outcome of the suit, the tenant is unlikely to be able to get their hands on your personal properties or bank accounts that aren't part of the real estate LLC. That alone is a very good reason to form an LLC that is a separate entity from your other financial interests. However, asset protection is not absolute, and certain situations may still put personal assets in jeopardy, such as personal misconduct or a personal guarantee.

Tax benefits

Real estate LLCs offer tax benefits such as:

• Pass-through taxation, meaning the LLC itself does not pay taxes on its income, while profits and losses pass through to individual members
• Bypassing double taxation on their income
• Availing deductions for investment property-related expenses

Some potential tax deductions for real estate LLCs include:

• Mortgage interest
• Property taxes
• Operating expenses
• Depreciation
• Repairs

These tax advantages can significantly impact the overall profitability of your real estate investments, making an LLC an attractive option for investors.

The second valuable advantage to forming a limited liability company is the possibility of a business owner paying less federal income tax by sheltering income property from double taxation. The LLC can file an information-only tax return with the IRS. This federal tax election shows profits and losses for the tax year and the percentage allocated to each owner. The owners then pay taxes on their portion of the LLC profits as individuals. This is known as pass-through tax treatment or, in some cases, a disregarded entity.

You also can choose to have your real estate LLC taxed as a C or an S corporation, which offers two other potential tax and business structures. These structures have different advantages, especially if you are earning more than $40,000 annually on your real estate investment. It's wise to talk to your accountant before making your decision about structure and taxation.

Flexibility in ownership and management

LLCs provide flexibility in ownership and management, allowing for multiple investors and customizable operating agreements. This flexibility enables investors to manage the business as desired, make decisions expeditiously, and easily add partners through modification of the operating agreement.

Additionally, multiple investors can participate in a real estate LLC by utilizing the same operating agreement for each property or by establishing separate LLCs for each property, providing flexibility and limited liability for each individual property.

Location

Your real estate LLC doesn't have to be filed in the state where you reside or even where your investment property is. You can shop for the state where you form your limited liability company to ensure that it offers you the best deal for your particular situation and property. Keep in mind, however, that filing in another state can also lead to complications. There are some downsides to consider, such as the foreign qualification process. Overall, where you register your business can have many implications for the fees that you pay or the legal benefits you receive.

Disadvantages of forming a real estate LLC

Despite the advantages, there are some drawbacks to forming an LLC for real estate investment, including formation and ongoing costs, mortgage difficulties, and limited liability protection.

Formation and ongoing costs

Forming and maintaining an LLC can be costly, with initial filing fees and ongoing annual fees varying by state. The cost of forming an LLC can vary depending on the state. For example, filing fees may range from $50 to $500. Additionally, there is an annual fee to maintain the business operational, which can be as high as $800 in states like California.

When deciding if this business structure suits your real estate investments, considering the costs associated with forming and maintaining an LLC is important. While the fees may seem high, the benefits of asset protection, tax advantages, and management flexibility may outweigh the costs for many investors.

Mortgage difficulties

Obtaining a mortgage for a property owned by an LLC can be more difficult and may result in higher interest rates. The primary cause of this difficulty is the hesitance of residential lenders to lend to LLCs due to the limited liability protection it offers.

If you already have a mortgage, when you put the property into an LLC, you may trigger the due-on-sale clause, and your mortgage holder will want to collect immediately. However, it may be possible to ask the lender to waive the due-on-sale clause, particularly if the borrower will remain the owner through the LLC.

Limited liability protection 

Forming an LLC is considered a great way to protect your personal assets. However, it is important to note that the courts can override liability protections if legal issues arise, such as mortgage loan payment difficulties. If you personally guarantee a mortgage loan, then you’ll be liable to pay the debt if the LLC defaults, and there’s a risk of foreclosure. 

How to form an LLC for real estate investment

You'll need to set up a real estate LLC, choose a name, register with the state, and create an operating agreement.

Choosing a name

Selecting a unique and appropriate name for your real estate LLC is crucial, as it must be distinct in order to register as an LLC and draw in potential customers. To ensure the name is available and compliant with state regulations, consult the business name search records and directories of your home state and other states.

It's also vital to consult with an attorney when forming an LLC for real estate investment to obtain the most suitable advice regarding the legal and tax aspects of the business.

Registering with the state

Registering your real estate LLC with the relevant state agency requires you to file the necessary paperwork and pay the requisite fees. This process typically involves completing the articles of organization, which should include the company name, primary address, start date, the names of the business owners (referred to as “members"), and a succinct description of the business. The filing fees for registering an LLC may differ depending on the state and its specific requirements, generally ranging from $35 to $500.

Once your LLC is registered, you'll need to designate a registered agent, who is a person or entity authorized to conduct business in the state and available to receive legal documents and other pertinent information on behalf of the LLC. It's important to choose a registered agent who meets the necessary requirements and can efficiently handle the responsibilities associated with the role.

Creating your articles of organization

The articles of organization are a legal document that provide an organized overview of the foundation for your business. Depending on the state, requirements may vary. However, you are typically required to provide the LLC name, business address, starting date, LLC members, and their assigned duties. After you file your articles of organization with the Secretary of State's office, if approved, your LLC will be recognized as a registered business entity. This can be accomplished online, by mail, or in person and will cost between $40-$500, depending on the state and how you choose to file. 

Creating an operating agreement

With its outline of the management structure, decision-making processes, and ownership details of your business, an operating agreement is an integral part of starting a real estate LLC. To create an operating agreement, consider using a template or sample agreement specifically designed for real estate LLCs, which can be sourced online and serve as a basis for customizing the agreement to meet your individual requirements.

Be sure to include provisions related to ownership, management, responsibilities, and operating procedures in the agreement.

Establishing an LLC can be complex. LegalZoom offers services that can take care of it all. Our services include business name checks, creating your articles of organization, operating agreement, bookkeeping tools, and more. LegalZoom takes pride in providing affordable services to give our entrepreneurs the peace of mind they deserve. 

Choosing the right state for your real estate LLC

The decision on the right state for your real estate LLC should take into account factors like tax laws, legal protections, and filing fees. Some states, like Texas and Florida, offer more favorable tax laws and legal protections for real estate LLCs, while others may have higher filing fees and costs.

Tax considerations

Some states offer more favorable tax laws for real estate LLCs, potentially reducing overall tax burdens. For example, states like Washington and Nevada do not impose income tax, which could reduce the LLC's personal income tax return and burden. On the other hand, states like Oregon may have higher income tax rates.

Furthermore, certain states may have other taxes or fees that could influence the tax burden of the LLC, so it's essential to take into account the specific tax laws and regulations of each state when evaluating the tax burden of a real estate LLC.

Legal protections

Legal protections for real estate LLCs can vary by state, with some offering stronger asset protection and liability shields. States such as Nevada, Delaware, and Wyoming are known for having superior asset protection laws for LLCs. In contrast, New York has passed laws to make it easier to unmask LLC owners, indicating weaker legal protections.

Understanding the extent of liability protection necessitates consulting the specific laws of the state where the real estate LLC is formed.

Filing fees and costs

Filing fees and ongoing costs for maintaining a real estate LLC can differ significantly between states, impacting the overall cost of forming and maintaining the LLC. For example, the initial filing fee in South Dakota is $150, with an annual report fee of $50. In contrast, California has a one-time state filing fee of $70, but an annual franchise tax fee of $800 is required to maintain the LLC.

These costs should be considered when deciding the best state for your real estate LLC.

Maintaining and managing your real estate LLC

For continued success, you must properly maintain and manage your real estate LLC, which includes record keeping, compliance with state regulations, and periodic reviews and updates. These safeguards can help ensure the profitability and protection of your real estate investment LLC.

It's vital to keep accurate and current records of your real estate LLC's financial transactions, property management, and legal documents. Proper record-keeping ensures transparency, accountability, and the ability to demonstrate the financial health and stability of the LLC.

To track financial records in a real estate LLC, consider the following steps:

• Use accounting software to track income, expenses, and financial transactions.
• Align expense categories with reporting goals.
• Retain financial statements from the prior three years, along with any essential financial records or contracts.
• Keep records of deeds, property documents, inspection paperwork, and maintenance documents.
• Establish a system for storing records, such as binders or file folders.

Compliance with state regulations

To maintain its good standing and avoid legal and financial penalties, your real estate LLC must remain compliant with state regulations. This includes filing annual reports, maintaining necessary licenses and permits, and adhering to any other state-specific requirements for real estate LLCs. Failure to comply can result in loss of good standing status, legal consequences, and financial liabilities.

To find a list of state requirements, you can visit your state’s official government website. Additionally, entrepreneurs are highly encouraged to visit the U.S. Small Business Administration (SBA) website or your state’s local SBA district office to gather more information regarding state regulations. You can also contact the SBA’s National Ombudsman, who can offer further compliance assistance to increase the likelihood of continued success.

Periodic reviews and updates

To adapt to evolving circumstances and business needs, you must regularly review and update your real estate LLC's operating agreement and management structure. This includes revising the operating agreement to account for modifications in membership, policies, or regulations that may impact the LLC and ensuring the LLC remains compliant and in line with its goals and objectives.

Conducting annual reviews of the operating agreement can also help identify potential issues before they become problematic for the LLC.

Understanding personal liability

Forming an LLC is smart. It can provide liability protection and help you make more from your real estate investment, including paying less in taxes. It also can protect you from legal jeopardy, including bad tenants. But you can't just set it and forget it. Meeting renewal dates and paying fees in full and on time is vital. By following our guide to setting up a real estate LLC and properly maintaining and managing your LLC, you can make the most of your real estate investments and achieve your financial goals.

LegalZoom is aware of the challenges that come with the complexity of business formation. This is why we offer services that can help form your LLC, including unlimited 30-minute legal consultations with highly experienced real estate attorneys. Additionally, our legal team can support the start of your business with legal document reviews, LLC formation, and assistance with state compliance. 

FAQs

What is the best type of company for real estate investment?

Investors looking to reap the most benefit from their real estate investment should opt for a limited liability company (LLC) as they provide higher income potential, longer leases, and lower vacancy rates than other forms of real estate companies. An LLC is often recommended by experts and could be the ideal choice for your investment.

Why set up a real estate LLC for investing?

Forming a real estate LLC is an ideal choice when investing since it can provide liability protection and tax benefits as well as allowing multiple members to invest together. It also protects you from legal issues like bad tenants. Management flexibility makes it a great choice for investment opportunities.

How does a real estate LLC provide asset protection?

A real estate LLC provides asset protection by shielding investors from personal liability, protecting their personal assets from being used to satisfy the company's debts or legal claims.

Why do people put their house into an LLC?

Extended privacy, tax savings, and limited liability protection are three common reasons many individuals decide to put their home under an LLC. By listing the LLC as the owner of the property instead of using your name, you can avoid having your personal information on public record. Additionally, you can save and protect your personal income by reaping the benefits of pass-through taxation, tax deductions, and personal asset protection if legal issues arise. 

Can my LLC pay my mortgage?

Yes, if your property is owned by your LLC, your mortgage can be paid by the LLC. However, if your LLC defaults and is unable to pay the mortgage, you can make the payment as the owner of the company without “piercing the corporate veil.” In other words, you can provide payment for the mortgage without losing your liability protection. 

Jennie L. Phipps contributed to this article.