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Real estate investors must protect their assets by assuring that parties with sufficient legal authority execute purchase and sale agreements and other documents associated with their business. Failure to do so may result in voided transactions and a complete loss of title on the property. Multi-member LLCs, partnerships, and corporations are at greater risk for such oversights, but all investors who do business through asset protection entities should be aware of legal guidelines for real estate transactions in Georgia to avoid potential losses.

In general, entities must be in “good standing” in the state in which it they were created to execute real estate transactions. Basically, this means, do not forget to pay your annual registration fees to the appropriate office each year, most likely the Georgia Secretary of State’s office. Furthermore, any person signing or executing documents on behalf of the entity must have the authority to do so on behalf of the entity. In order for a person to have legal signatory authority, such authority must be reflected in the entity’s filings with the Secretary of State. Read More→

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When a real estate investor or his attorney is filing for a Limited Liability Company (or any other business entity) with the Georgia Secretary of State’s office, it is pertinent to make sure that he or she acquires a federal Employer Information Number (EIN) from the IRS as well. Federal law requires federal taxpayer identification for income and employment taxation purposes. Furthermore, banks generally require an EIN to open any business account. For these and other reasons, business owners will benefit by applying for their EINs as early as possible in their business entity formation process.

Applying for an EIN can be a relatively simple process, but complications may arise where foreign persons or entities hold ownership interests in a company seeking an EIN. For example, IRS Form SS-4 requires applicants to name a “responsible party.” The responsible party can be held liable for any failure by the business to withhold and pay over income tax withholding or social security taxes. In the case that a business entity that is not publicly traded or registered with the Securities and Exchange Commission, the responsible party may be an individual, or if the owner of the entity being applied for is another disregarded entity for tax purposes, the responsible party can be this parent entity itself. Read More→

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Real Estate Investors establishing multi-member LLCs should always consider how broadly or narrowly to define the rights, duties, and powers of their members and managers based on the structures and needs of their respective companies. A thorough declaration of rights and duties in an LLC operating agreement will reduce the likelihood of future confusion and conflict. Furthermore, it will ensure that the members and managers of the LLC understand and have agreed upon each party’s responsibilities and limitations.

Real estate investment LLCs, especially those that either have a member or members out of state or out of the country, or who do business out of state, have especially strong incentives to structure management provisions with care. Limited liability companies can assign limited management duties or rights, such as signatory authority, to parties, without granting those parties full management authority. These non-member managers can save the company time and travel expenses by acting as local agents of the company in certain capacities. Limited liability companies with more complex management needs must give careful consideration to scopes of management authority; operational efficiency should be achieved without sacrificing an appropriate balance of managerial power. Therefore, real estate investors should always consult an attorney who is experienced in entity formation and business transactions before forming their LLC operating agreements. Read More→

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Craig HalperinAs an attorney who specializes in real estate transactions for investors, I always try and stress the importance of using an attorney to form your business entity, more specifically an LLC, to shield your real estate assets from liability, as opposed to trying to take on this task on your own, or using an online service. No matter how many times we suggest this, investors sometimes overlook the importance of seeking an attorney’s advice during initial registration of LLC documents. As a result, many investors are forced to amend their Articles of Organization, sometimes more than once. In our experience, investors who have registered their LLC’s online, without engaging an attorney to correctly draft the documents necessary for proper filing, end up having to file amendments nine times out of ten regardless of their experience.

The time and money lost due to avoidable mistakes can be very frustrating, and necessary amendments often end up costing investors the same, if not more, than what their attorney fees would have been had they hired one at the onset. Conversely, investors who work with attorneys during the filing process are far less likely to encounter obstacles resulting from imperfect filings and unanticipated obstacles. These investors are thus much more insulated from the risk of needlessly incurring costly amendments. Attorneys can help investors circumvent these unnecessary obstacles and losses in several important ways. Read More→

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Title Insurance PolicyPeople often ask me at continuing education classes or networking events what an enhanced owner’s title insurance policy is, when it is allowed to be used, and what additional coverage it offers to its purchasers. It must first be mentioned that each title insurance underwriter has different guidelines, coverages, and exceptions, so there is never an across the board answer to this question that will encompass every title underwriters’ policies. With that said, the example I am about to expound upon is adopted by six of the major ten underwriters here in Georgia, so if it is not an exact list based on who your closing attorney is writing your policy with, it will at least give you a good idea of some general benefits.

An enhanced policy provides additional title insurance coverage to a purchaser of residential real property.  The enhanced coverage includes title matters that are not within the scope of a standard owner’s policy.  The enhanced coverage for the owner creates a greater risk to a title underwriter so accordingly, a 20% increase in the premium over existing title insurance rates is charged for this policy, but the policy amount coverage increases by 10% per year for the first five years, so financially they make sense to purchase. Read More→

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