Although real estate is a common investment, few owners have implemented the proper legal structures to get the most out of their real estate assets. As a result, real estate owners expose themselves to unnecessary lawsuit risks and pay far too much in unnecessary taxes on their investments. The purpose of this article is to show you how to own real estate so that you may be able to protect yourself from real estate-related lawsuits. Perhaps most importantly, the proper structure could more than pay for itself through the tax savings you may realize.
The types of real estate we are referring to include rental residential or commercial properties, the business building, or even raw land. The merits of real estate as an asset class are beyond the scope of this article, but the structure to most efficiently benefit from all of these holdings is universal.
The last thing you want to do is invest in an asset that generates a lawsuit that threatens all of your other wealth. Each year, millions of lawsuits are filed against the owners of real estate throughout the U.S. They are brought by lenders, tenants, guests, lessees and even trespassers. Let’s look at an example of a real estate lawsuit risk:
Rob the Real Estate Owner is Victimized
Rob owns a number of apartment buildings. He owns some in his own name and some in his wife’s name. The total value of the real estate is $4,000,000 and there is about $2,000,000 of debt on the properties. The rental income more than covers the debt service and Rob and his wife make a nice little profit every month. Rob also has a beautiful home worth approximately $1,500,000 with a mortgage of about $500,000.
After an unfortunate event at one of the properties, Rob was named in the lawsuit. Though Rob wasn’t even on the property at the time of the event, Rob still ultimately lost a judgment for $3,000,000. His liability insurance covered $1,000,000 of the loss, but he had to come up with $2,000,000 himself.
This left Rob with a dilemma. Sell all of his real estate properties as part of a fire sale and mortgage his house for the remainder of the settlement or sell his house and further mortgage his real estate at relatively unattractive loan rates. In either case, Rob was very unhappy about the consequences as both options result in a loss of the equity he had built over the last 20 years. In the end, Rob lost his rental properties and his home. Though he didn’t lose his ability to spot a good real estate opportunity, Rob was very uncomfortable going back into real estate after this terrible experience.
What Could Rob Have Done Differently?
If Rob had gotten the right advice, he could have done a few things to protect himself. We will show you a few options here that may be helpful.
Review his Property and Casualty (P&C) Insurance
In this case, Rob did not have adequate insurance protection. Had he had the right coverages and limits, either through a “slip and fall” type policy, landlord insurance, business umbrella or other coverages, his personal liability might have been severely reduced… if he had any at all. Also, such coverages can be extremely inexpensive, given their high coverage limits. This is one reason we make a P&C insurance review part of every asset protection planning engagement.
Separate Properties into LLCs
A limited liability company (LLC) is a legal entity that affords both inside-out and outside-in protection. In other words, if you had one LLC for each piece of property, a lawsuit arising from one property could only threaten the equity in the property inside that LLC. The judgment would not extend to the assets in other LLCs. Further, if Rob had been sued personally for an accident, for malpractice (if he were a doctor or other professional) or for any other personal claim, the LLC would provide a high level of protection from that lawsuit even though Rob and his family own all the shares of the LLC. This is a very popular strategy for real estate owners in the U.S.
Separate LLCs with Management Company
To take the above strategy to the next level, many savvy real estate owners use a management company to manage all of the various LLCs that own properties. This technique can provide significant tax and retirement advantages, as the management company can be structured as a different type of tax entity from the LLCs. This allows the owner to get the “best of all worlds” in terms of the taxation of the entities involved. One benefit the management company can provide the investor is to sponsor qualified or non-qualified retirement plans. These plans can often be layered on top of existing retirement plans at the business level, may not require contributions for employees, can reduce the taxes on real estate generated income, and can ultimately increase retirement income for the owners.
Captive Insurance Company (CIC)
A highly successful real estate developer or owner could create a captive insurance company to insure the properties from various risks. This strategy allows the business to ultimately create a multi-million dollar tax-efficient reserve fund to cover future losses. The same CIC can be used to protect the business from various risks of employee lawsuits, HIPAA and Medicare audits, and other significant risks. A key fact about the CIC is that it can be structured for a superior level of protection as well – against risks like the lawsuit that Rob endured.
If you now own significant real estate, or plan to in the future, you will want to maximize the protection of your valuable personal and business assets (not just the real estate) and minimize unnecessary tax liabilities.
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David B. Mandell, JD, MBA, is a former attorney and author of more than ten books including Fortune Building for Business Owners and Entrepreneurs. He is a principal of the financial consulting firm OJM Group www.ojmgroup.com, where Carole C. Foos, CPA is a principal and lead tax consultant. They can be reached at 877-656-4362 or firstname.lastname@example.org.