By Ilyce Glink, Friday, March 6, 2009. Co-written by Samuel J. Tamkin
Inman NewsQ: I formed an LLC for real estate purposes. Now my mortgage guy says his company does not do mortgages to LLCs. Is that common? Should I stop putting rental properties in the LLC? What about liability?A: A limited liability company (LLC) is an entity generally used by businesses to insulate the owners of the company from liability. Some years ago, people had a choice between a corporation and a partnership. Both of those types of entities had limitations. A limited liability company allowed owners to have flexibility in the manner in which the owners of the LLC entity would distribute profits and allowed other tax benefits.Most commercial lenders have no problems giving loans to LLCs, and that's the problem you have run into. You probably aren't getting a loan from a commercial lender, but from a residential lender.Residential lenders may have much lower mortgage rates than many commercial lenders, but the rules residential lenders must abide by differ greatly from the rules followed by commercial lenders. One of the rules followed by residential lenders is to make loans to individuals not corporations or companies, and, in addition, the property being financed must be residential -- it could be a single-family or it could be a four-unit apartment building.If you have many properties and run your real estate as a business, you may want to have all of the properties owned by the LLC, in addition to benefiting from the protections from liability that the LLC would give you personally.Before you decide to stop putting rental properties in an LLC or taking properties out of the LLC, you need to make sure that any transfer from the LLC wouldn't trigger any adverse federal income taxes. Also, in some states it can be costly to transfer title from the LLC to the individual. ...You should sit down with an attorney to discuss these issues. The first issue in deciding whether an LLC is right for you is knowing how it will help you. If you have all of your life savings in the properties that are in the LLC and little in terms of assets outside the LLC, you stand to lose almost everything if your company is sued and loses the case. For some property owners in your situation, they are better off spending more money on broad coverage liability and property insurance than in the costs to set up and maintain an LLC. For others, the answer may be to have multiple LLCs, one for each property they own. Depending on your circumstances, you may decide to keep the LLC or not use it at all.Finally, when you ask about liability, you need to determine what kind of liability you are trying to protect yourself against. Do you have sufficient insurance to cover you for that issue? If you manage your own properties, could you be personally liable for your poor management? Do you have a third-party management company taking care of the buildings? Will you be able to escape liability if one of your tenants is hurt as a result of your direct actions? If you make your own repairs on your building and you do something wrong and someone is hurt, would they be able to sue you directly anyway? These are the issues you need to discuss with your attorney, and perhaps even your company tax preparer. You may find that a better option is to keep your properties out of the LLC, buy additional insurance to cover any potential liability, and obtain cheaper financing from residential lenders.