Should you transfer the title of your investment property into your LLC?

In a perfect world, banks and/or lenders would lend money to new LLC’s with no income or credit history, thus allowing you to purchase your investment property in the name of your limited liability company (LLC).

Should you transfer the title of your investment property into your LLC?  You could probably ask 10 different people for their position on this issue, and receive 10 different answers.  My position is that I do not like to transfer title from the individual to the LLC – for a couple of reasons.  First, transferring the title when the mortgage is still in your name triggers a due on sale clause within the mortgage / note.  Second, if you ever go to refinance, you will have to transfer title out of your LLC back to your individual name, creating a strange series of transactions for your lender and/or title company to sort through.  Finally, if you ever need to file for bankruptcy, it may prove difficult to discharge a note if the title to the property is not in the filer’s name.

My position rests on the assumption that you have properly formed your LLC, complying with all of the statutory corporate formalities including organizational minutes, bylaws, appointing the Board of Governors, Managers, Membership Units, etc.  In addition, all of your business dealings are done in the name of the LLC – your lease with the tenant will be between the tenant and the LLC, the tenant should pay the LLC, and the LLC has a separate bank account and accounting records.

From a legal standpoint, the tenant’s contract is with the LLC, not with the investor as an individual. If something goes wrong, they should sue the LLC, not the individual (this is called privity of contract).  That is not to say that someone couldn’t try suing the individual – it is not uncommon for a litigious person to throw everything against the wall to see what sticks.  Even if your strategy was to transfer title from your personal name to the LLC in order to “tie” the property to the LLC, the mortgage and note would still be in your name anyway, thus leaving the same issue for that litigious person to throw against the wall.  In addition, if you completed all of the other steps to adequately form and operate your LLC, the argument to be made is that it would be bad policy if a court ruled that in order to receive liability protection from your LLC, that you should have violated the due on sale clause in your mortgage / note.

Again, every new business must start the ball rolling somewhere.  Every new business is started with the capital or credit of the owner.  Eventually when you have built your portfolio, built your LLC’s credit history and property equity, you will no longer need to purchase properties with your own credit and in your individual name.  Your goal will be to get loans through the LLC and thus title of the property in the name of the LLC.

Remember, most banks do not make loans to brand new LLC’s, therefore you must start the ball rolling by purchasing your property personally.  Perhaps the bank/lender will allow the LLC to purchase the property with the individual’s personal guarantee or co-signature on the note.  If the bank will not accept the personal guarantee, there are several other options to consider.  Some strategies could include the individual leasing the property to the LLC, which would then lease the property to the tenant.  Alternatively, there could be a written agreement between the individual and his LLC whereby the individual pledges and confers upon the LLC the right to possession of the investment property.  I also place language in the annual minutes of my businss entity clients that recognizes that the owner has granted consent to his LLC to possess and use the property for business and rental purposes.  All of these alternatives should be documented through company minutes of the LLC that acknowledge and authorize the LLC’s use of the investment property.  Having these added formalities can only strengthen the liability shield created by the LLC.

Please feel free to contact me if you need assistance with your investment property, have questions or concerns with respect to properly forming your LLC, or incorporating additional investment property ownership strategies to strengthen the liability shield created by the LLC.

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  3. This is an article that I desperately needed because I am not sure if my husband (both of us are the owners of our rental properties) would allow me to transfer our rental property title to my single member LLC. I am so relieved to know that there are some other ways to handle it as your article pointed. But I am not sure if our properties have the same protection as they were transferred to LLC. Thanks very much.

  4. Another question is that can I deduct my remodeling on my rental property if I don’t transfer the title of my rental property to my LLC? Thanks.

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  8. Christine

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    Point #3 – Placing your property into an LLC provides you with tax breaks that you would not be able to get as an individual. You can in some instances avoid capital gains taxes on the property. In addition if you decide you want to invest in other real estate and need a loan the home you have won’t show up on your credit as a liability. Once you place the property into a LLC/Trust the loan gets removed from your credit report-dispute it with the credit agencies. I did so back during the late 90’s early 2000’s successfully.

    Point #4 – If you go to refinance after placing the property in an LLC/Trust the traditional lender may require you to take it out via a Quit Claim Deed which they do not realize gives them guarantees of anything but do as they ask at title closing and transfer via Quit Claim Deed. This does not muck up the title history of the property. Not sure why this person seems to think title needs to be neat and clean every time. After you Quit Claim Deed it into your name, Quit Claim Deed it back to the LLC in a separate transaction at title closing.

    Point #5 – When you place your property into an LLC the assumption by the state, the federal government is that the LLC is made up several members of the LLC. So in his example of the tenant suing the LLC, they would only be entitled if and I stress if they won a law suit against the LLC to a certain percentage of the LLC’s funds not all. If one member signs a tenant lease as the officer of the LLC and they tenant sues that member only his stake in the LLC whatever percentage of ownership that may be is at risk not the percentage of ownership of the other members

    Point # 6 – This lawyer which I realize after reading the post he is a lawyer, WOW is he wrong. LLC’s do not and I stress do not need to be seasoned. This attorney is operating from the 1980’s business approach which has been discarded so long ago I am surprised he is still referencing it. You can have an LLC formed 2 days ago, bank account opened 1 day ago and get loans. Many non-traditional lenders do not care about the operating income of the LLC if you are purchasing real estate i.e. Real property. They care about the property as collateral to support the loan, what you do or do not do with your business is of less concern than the collateral you are putting up for the loan.

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