Why are LLCs a good fit for real estate holding companies?

Limited Liability Companies or LLCs are a good fit for real estate holding companies because they are straight forward and flexible.  Its really that simple.  Iowa's new LLC law has created some undue complexities, but a limited liability company continues to be an appropriate vessel for holding real estate in most situations. You should contact your tax professional to determine the appropriate tax status. My comments here relate solely to the type of entity best utilized for real estate ownership.

LLCs combine the concepts of a partnership with the liability protection of corporations. Within the bounds of the applicable statute, the means by which an LLC can be managed and controlled are virtually endless. Use your creativity. For example, minority shareholders can have equal decision making authority in relation to the issuance of new ownership certificates and other items of similar importance. Not that corporations don't have some flexibility, they just don't have the flexibility associated with the partnership concept.

So next time your thinking of creating a new entity for land ownership, look to an LLC first.  It likely will meet all of your needs. Many of these same issues are discussed in the Iowa LLC Blog by attorney Marc Ward. Marc's blog is definitely worth a look if you are thinking of taking advantage of the benefits LLCs have to offer.

Iowa's New LLC Law and Real Estate Transfers

Beginning January 1, 2009 Iowa adopted a new set of laws governing limited liability companies or LLCs. My partner Rush Nigut has done a good job of detailing many of the important changes in his blog: www.rushonbusines.com.

LLCs have long been a favored entity of real estate and corporate attorneys for real estate ownership. This has not changed. What has changed is the reversal of the presumption all members of the LLC are agents of the LLC merely because of membership. New Iowa Code Section 489.302 permits, but does not obligate, the LLC to file a "Statement of Authority" with the Secretary of State. This Statement of Authority sets forth those parties which have the authority to bind the LLC.

When Iowa adopted the old LLC law - some sixteen years ago - authority issues troubled and complicated real estate transfers by LLCs. Certain provisions of the original LLC law suggested parties were imputed with knowledge of any limitations on the rights of members or managers to transfer real estate. This resulted in committee meetings and the preparation of form affidavits required for every real estate transfer to assure the party signing the documents had the requisite authority.  The obvious result is a slow-down in LLC real estate transfers and an unnecessary increase in the cost.  Some years later, these knowledge provisions were removed and the investigation and affidavit requirements were thankfully removed. Title examiners were entitled to presume signatories had the proper authority, without evidence filed of record to the contrary. I see no difference under the new law. Only with the filing of a Statement of Authority should a review of authority be required for title transfer purposes.  If a Statement of Authority is not filed, the authority of the signatory should be presumed.

Title review is to be distinguished from a buyer's due diligence.  As Mr. Nigut explains nicely in this post - www.rushonbusiness.com - third parties should continue to investigate proper authority before finalizing a transaction.

In short, I do not believe that title transfers under the new LLC law require anything more than an investigation into the existence of and adherence to a Statement of Authority properly filed with the Secretary of State. Otherwise, title examiners should be able to presume proper authority. I implore, no beg, Iowa title examiners to take the same position.  Otherwise, we will needlessly complicate title transfers under the new LLC law.  (And yet another argument for the adoption of Title Insurance in Iowa).

Mechanics' Liens - A Virginia Perspective

Christopher Hill, a friend and quality construction lawyer has posted some interesting articles on Mechanics' Liens.  Click here to see his latest: constructionlawva.blogspot.com. While the timing for the filing and releasing of mechanics' liens varies from state to state, Chris includes some great thoughts and comments regarding more generally applicable problems surrounding mechanics' liens. In short, they are tricky animals.

In Iowa and most states, the applicability and proper timing for the filing of mechanics' liens vary between commercial and residential properties. The primary rationale is that in commercial projects the general contractors and owners are more business savvy. Of course, that is not universally the case. Under the current state of economic affairs, mechanics' liens are significant problems for homeowners and commercial owners alike. Pay attention to the specific laws applicable to your situation and don't get caught without someone to help you through the mine field of mechanic liens.

Fed Purchase of Mortgage Backed Securities

In a pre-announced change of course, the Federal Reserve Bank of New York has begun the process of purchasing $500 billion in mortgage-backed securities in large part guaranteed by Fannie Mae and Freddie Mac.  Unlike the original plan to purchased troubled securities, these securities are low-risk investment grade. They are not the mortgage-backed securities partially causing the current credit collapse.  For a more detailed story, check out this article by Stephen Bernard:  www.builderonline.com/mortgages-and-banking/ny-fed-begins-purchasing-mortgage-securities.aspx.

This is great, but what does it mean to Des Moines, Des Moines Attorneys and Des Moines real estate in general. The truth is - nothing.  I'm anxious to hear the justification. At least some of the money is being spent on investment grade purchases, but is this the purpose of providing these funds for public use? It smacks to me of some sort of trickle-down theory that has been proven not to work - unless your Sean Hannity or Rush Limbaugh. Fannie Mae and Freddie Mac assumably didn't need help with the guarantees of quality investments. It was the guarantee of troubled mortgages that allegedly caused the problems. Or maybe not. I can't make heads nor tails of this stuff most of the time, but I know its not working in my home town.

We have yet to see these types of federal investments assist local banks, developers, entrepreneurs or consumers. If these moves really loosen lending, then what is the reason for continued tightened lending? Let's incentivize local lenders and national banks to lend locally, especially in real estate. I know Des Moines real estate entrepreneurs and this Des Moines real estate attorney would welcome it readily.

I'd enjoy knowing your thoughts.

Des Moines' Microcosm of Economics - Part Deux

Starting essentially from Scratch, Michael Myers grew Regency Builders into the largest home builder in Iowa.  By following a well-established pattern of pre-designed homes, Regency allowed thousands of Iowans to break the chains of renting and move into their own homes.  Regency homes and neighborhoods throughout Iowa became very recognizable by the uniformity of color and design, but few seemed to care.  Other than attempting to break into higher-profit custom homes, the Regency business plan did not seem to change.  Michael then suffered through a long illness which apparently ran in the family - Lou Gehrig's Disease.  Remarkably, his brother Mark died almost exactly one year later of the same disease. In recognition of Michael's accomplishments - and a $15 million donation - a local hospital planned to name a new west-side hospital after the accomplished home builder.

During his disease and following his death, his two sons took over the company with the assistance of some of the Michael's trusted colleagues. Almost overnight, Regency became a significant competitor in commercial buildings and commercial developments throughout Iowa, but primarily in Des Moines and Cedar Rapids. Anyone driving on I-80 west of Des Moines could hardly miss the huge new office building with the trademark blue Regency sign. Regency seemed to spend with near reckless abandon. You would have had to have your head in the sand not to notice. But, the success seemed undeniable, until 2008.

In text-book style, the seems of Regency's success began to burst. Rumors of the inability to meet payroll for the significant number of employees flashed across the business grapevine. Unfortunately, several of the subcontractors were not part of that network. Both employees and subcontractors went unpaid for weeks of work. Des Moines and communities throughout Iowa were immediately stung.  Regency employed hundreds of subcontractors, several of which relied solely on Regency for their work.  Mechanics' liens outpaced the local clerk and abstracter's office ability to keep up. Recent home purchasers were left with unsodded yards and incomplete warranty work.  No bank in the area dared loan additional funds. Dozens of partially completed homes and several partially completed developments were strewn throughout Iowa. Foreclosure suits by the lenders allowed some of these homes and developments to start to be completed through the appointment of receivers; but, as we all know, now is not the time for such things. The national economy had already burst.

The continued acts of robbing Peter to pay Paul caught up with Regency.  It is no more.  The large and nearly empty office building sits immediately across the street from me and serves as a daily reminder of excess.  The hospital graciously allowed the family to forgo the $15 million donation, and the naming rights for the new hospital.  Thank heaven not all home builders in Des Moines went this route. We will dig out.  But, because of Regency, it will take all that much longer.