Moving Property To LLC
What do I do to move property to my LLC? I have properties with Freddie or Fannie mortgages on them. Can I move them to separate legal entities in order to get some asset protection? What will this do to the mortgages?
Moving properties to LLC or separate legal entities is a good idea for asset protection purposes. The common scenario is moving property to various land trusts. It doesn’t matter who the beneficiaries of the land trusts are: if they are the standard revocable land trusts that everybody uses, they will not give you any asset protection. There is the possibility that you can get some anonymity out of using the land trusts. That is a very small advantage, in my thinking. Your tenants, contractors, and everyone associated with the properties know who you are already. The only thing you are hiding is property from a general search for property ownership in the recorder’s office. The fact that you don’t show up as owning a bunch of properties might save you from a frivolous lawsuit, but most lawyers don’t check the county records before they file a suit.
The other option is moving property to LLCs (Limited Liability Companies) or possibly separate S corporations, or even limited partnerships. You will probably want to use the LLC in preference to the other two options. There are a number of accounting advantages and their maintenance is much easier. Some states let you have “series” LLCs which will cut the cost, because you basically set up one LLC, and then it can establish separate legal divisions without incurring additional charges at the state offices. If you are in California or a state where the cost of the LLC is high, then just use one or two LLCs and divide the properties between them in some logical manner. You should have a management company to “manage” your properties, but that’s another story.
The asset protection value of moving property to LLC can be expounded on for a long time. Assuming you set up the LLC and want to transfer property into it, what happens to the mortgage? Almost all mortgages have “due on sale clauses.” Technically moving the property to an LLC, corporation, or limited partnership is a “sale.” As soon as the mortgage company knows that you have transferred the property, technically they have the right to call the loan. In your mortgage note, there is a section called “changes of title.” These clauses are usually very vague. They say that you have to get permission from the mortgage company “prior to any changes in title.” Of course, if you march down and ask permission, you will be opening up a can of worms. Trust me; the mortgage company wants money every time you sneeze, even if they give permission. Most people just make the transfer and don’t tell the bank. That doesn’t mean they did it right, but that’s what happens.
The mortgage company figures out you have been moving property to LLC, because the tax notices aren’t in your name anymore. They will be in the LLC’s name. Additionally, the insurance will have to be changed, and the mortgage company will see that change. Make sure that the insurance will still be good when you change the property ownership to the LLC. The last thing you want is to have a fire and figure out that the property isn’t covered, because they insured your property, and it isn’t your property any more. NO COVERAGE!
Moving property to a living revocable trust is not a sale, by federal law. Provided you are the grantor (guy who makes the trust), the trustee (guy who manages the trust) and the beneficiary (guy who gets the benefit of the trust), federal law says the mortgage company can’t consider the transfer of a property from you to such a trust as a “sale.” A trust that meets these criteria is called a “grantor trust.” No bank, mortgage guy, property tax guy, casualty insurance or anyone else can upset the apple cart if you have a true grantor trust. (California and a few states require “notice” that you are using a grantor trust, otherwise they will assume you are not using a grantor trust, and they will try to up the property taxes on the transfer of ownership.) Note that the land trust doesn’t qualify for this special treatment, because in most cases you are not filling all three positions (grantor, trustee, and beneficiary), and it is therefore not a grantor trust. Companies like LLCs, corporations, or limited partnerships, don’t get the special treatment. The mortgage company can call the loan.
Having said that, Fannie and Freddie have always taken the position that if you move the property to a company you are basically the owner of, then they have “let it slide.” Fannie and Freddie are changing, so who knows what they will do in the future. Assuming the loan isn’t “called,” when you put property into a company for asset protection, you need to know that you can’t cash out or refinance through Freddie or Fannie. You have to remove the property back to your own name “prior to application date.” The prior to application is ok right now if the bank can show you were the owner of the LLC. That’s a little loose though. Freddie has proposed transfer at least 6 months prior to applying for the loan. Just be aware that refinance may be a problem.
Even when the property is transferred to a company, the loan is still just as it always was. You are still liable. Your name is still on the bottom line. The loan still shows on your credit. You are still only entitled to 10 properties under Freddie and Fannie rules.
Freddie and Fannie cut the number to 4, and in recent press releases they have said that they would go back to the 10 properties. But the official ruling isn’t out yet, and technically it is still 4 today. They are rethinking that real estate investors actually buy real estate, and the problem is nobody is buying right now. Maybe if they let investors invest real estate might move. In the future, you will have a lot harder time “qualifying” for multiple property loans. You will have to have tax returns, not leases to qualify. You have got to watch your losses very closely!
If you try to buy a property directly in the name of an existing LLC, it is possible that you could get them to title it directly in the name of the LLC, but you are still going to be signing personally for the loan. That’s a given.
There is no question that the mortgage industry doesn’t make asset protection easy, but there is usually a “work around” or a way to “bend the rules” and achieve the asset protection you want.
Recently I moved my Rental codo apt to LLC and I’m a single member. I transfedred the deed to LLC to protect myself from future foreclosure on another property.
As I understood from you that a single member is not protected. Should I add my 80 years old parent as a member on the LLC for 1-10%?
What wording should I use? Which forms to use? Does it matter as to when I add my parent as a member (I just formed the LLC)?
It depends on what state you live in. Some state will allow you to have charging order protection even for one member. If you live in a state that does not then adding your parents to the LLC may give you charging order protection but if you declare bankruptcy the court may under that transfer. Adding your members would be part of the operating agreement and also possibly on the state records depending on what state you registered your LLC in.
Great informative article! I have a condo unit that I will rent out for a few years while out of state. I was considering putting it into an LLC for liability issues. I read somewhere that people have successfully sued and gained real estate assets from owners based on the argument that it was placed into an LLC to “hide” assets. That article suggested multiple owner status for the LLC to counter argue in court that it was formed for tax purposes. Have you heard of similar incidents? Also, I have a Mortgage Credit Certificate attached to this unit. Will I lose this Tax Credit if I “sell” the unit to the LLC? And on last question. In the future I had planned on doing a 1031 Exchange off this unit when I am ready to buy a multi-unit property. Will I still be able to do this with the property under the LLC title?
If the condo is your personal residence, you may want to leave it in your personal name and get an umbrella policy. As your personal residence you will get tax breaks when you sell the property and you won’t have to do a 1031 exchange. This will also allow you to keep your MCC. If you have a mortgage on the condo you would risk triggering the due on sale clause of the mortgage if you transfer it into an LLC.
I have a house I am going to flip. We will have owned it for a year and are planning for it to be taxed as a long term capital gains once we sell. Currently it is in our name. Is there any benefit in putting it into an LLC before we sell to protect us if something happens in the future to the property?
An LLC can provide protection for you from anything that could happen with the property and can be a good idea. It may depend on what state you are in and how much it would cost to set up the LLC. If the cost is high, you would probably be ok without an LLC.
I recently transferred my deed from my name to my LLC that was established in 2011. Do I need to amend my operating agreement to include the property transfer? If not, what documents should be recorded in the minute book?
Just recognize and say that the LLC approves transfer of the property in your meeting minutes. Make sure the increased value of the LLC is recognized in your capital account.
I live in Texas and own 5 properties. All of them except 1 have more than 50% equity already based on today’s values. I want to move them into an LLC but the mortgage banks have refused saying it will trigger due on sale clause. What are my options without paying off the mortgages.
Some banks will let you move a mortgaged property into an LLC, but most won’t – if you ask. Most people don’t ask. Technically, it would trigger the due on sale. Nobody I am aware of has ever been challenged for that. HOWEVER, until just recently interest rates have gone steadily down since the due on sale clause was created by the Garn St. Germain Act in 1982. Yes, interest rates went downhill steadily between 1982 and 2017. After the low a year or two ago, the interest rates have nowhere to go but up. Will banks start using the due on sale as a weapon to protect themselves? You can bet that if the rates hit up in the above 5% and your loan is at 3%, the banks will start calling loans. When rates hit 15% the banks will call every loan they possibly can. Will your transferring your property, where you are the sole guy on title, to an LLC, where you are the sole owner, constitute a transfer that the courts will allow the due on sale clause to be called on really happen? We don’t know. It may turn out that if ownership on title and ownership of the LLC are identical, the courts may call it in favor of the owner not the lender. But for now, the due on sale clause is violated when you transfer a property into an LLC. Could you transfer the deed back into your name if the bank starts to think about calling the due on sale clause? The transfer into an LLC technically also voids insurance that may be being carried on the property. If you don’t do it right, the transfer may also trigger a tax. Some states have a transfer tax that is triggered.
Why not just pay off the mortgage on your commercial property by taken out a loan against your residence. As long the new loan was used to pay off the commercial loan it its still tax deducable.
Technically, you can’t take out a loan on your personal residence and use it to pay off a commercial loan and still have the residential loan be a tax deductible loan.
I think your advisors may be misleading you. Don’t take our word for it go to the irs.
Below is an article from the IRS regarding deductible mortgage interest. I’ve also included an excerpt from IRS Pub 936, Home Mortgage Interest Deduction.
“Home equity loan interest. No matter when the indebtedness was incurred, you can no longer deduct the interest from a loan secured by your home to the extent the loan proceeds weren’t used to buy, build, or substantially improve your home.”
Although you cannot deduct the interest as a home mortgage interest because it is not used to improve the home or take out an exexisting home mortgage, you could deduct it against your rental income assuming you used the proceeds to replace the existing mortgage on your rental property.
Basically, you ar using your home as a security rather than the rental property to secure the new mortgage. ???
This is pretty much the imformation I received from several professionals.
Very interesting and I do very much appreciate your feedback.
I don’t fully understand the question. You can use your home to secure a mortgage.