So we've been having discussion here about how to properly protect your personal RE investments. The general consensus has been to but the properties under and LLC. But I have a different take and look forward to comments.

At least under NC statutes, and LLC allows the following: (sorry for the length)

§ 57C‑3‑30. Liability to third parties of members, managers, directors, and executives; parties to actions; governing law.
(a) A person who is a member, manager, director, executive, or any combination thereof of a limited liability company is not liable for the obligations of a limited liability company solely by reason of being a member, manager, director, or executive and does not become so by participating, in whatever capacity, in the management or control of the business. A member, manager, director, or executive may, however, become personally liable by reason of that person's own acts or conduct.
(b) A member of a limited liability company is not a proper party to proceedings by or against a limited liability company, except where the object of the proceeding is to enforce a member's right against or liability to the limited liability company.
(c) The liability of members, managers, directors, and executives of a limited liability company formed and existing under this Chapter shall at all times be determined solely and exclusively by this Chapter and the laws of this State.
(d) If a conflict arises between the laws of this State and the laws of any other jurisdiction with regard to the liability of members, managers, directors, or executives of a limited liability company formed and existing under this Chapter for the debts, obligations, and liabilities of the limited liability company, this Chapter and the laws of this State shall govern in determining the liability. (1993, c. 354, s. 1; 2001‑387, s. 69.)

§ 57C‑3‑31. Mandatory indemnification of managers, directors, executives, and members.
(a) Unless otherwise provided in the articles of organization or a written operating agreement, a limited liability company must indemnify every manager, director, and executive in respect of payments made and personal liabilities reasonably incurred by the manager, director, and executive in the authorized conduct of its business or for the preservation of its business or property.
(b) Unless otherwise provided in the articles of organization or a written operating agreement, a limited liability company shall indemnify a member, manager, director, or executive who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party because the person is or was a member, manager, director, or executive of the limited liability company against reasonable expenses incurred by the person in connection with the proceeding. (1993, c. 354, s. 1; 2001‑387, s. 70.)

§ 57C‑3‑32. Limitation of liability of managers, directors, executives, and members and permissive indemnification of managers, directors, executives, and members; insurance.
(a) Subject to subsection (b) of this section, the articles of organization or a written operating agreement may:
(1) Eliminate or limit the personal liability of a manager, director, or executive for monetary damages for breach of any duty provided for in G.S. 57C‑3‑22 (other than liability under G.S. 57C‑4‑07); and
(2) Provide for indemnification of a manager, member, director, or executive for judgments, settlements, penalties, fines, or expenses incurred in a proceeding to which the member, manager, director, or executive is a party because the person is or was a manager, member, director, or executive. For purposes of this subdivision, the words "expenses", "proceeding", and "party" shall have the meanings set forth in G.S. 55‑8‑50(b).
(b) No provision permitted under subsection (a) of this section shall limit, eliminate, or indemnify against the liability of a manager, director, or executive for (i) acts or omissions that the manager, director, or executive knew at the time of the acts or omissions were clearly in conflict with the interests of the limited liability company, (ii) any transaction from which the manager, director, or executive derived an improper personal benefit, or (iii) acts or omissions occurring prior to the date the provision became effective, except that indemnification pursuant to subdivision (2) of subsection (a) of this section may be provided if approved by all the members. As used in this subsection, "improper personal benefit" does not include reasonable compensation or other reasonable incidental benefit for or on account of service as a manager, director, executive, officer, employee, independent contractor, attorney, or consultant of the limited liability company.
(c) A limited liability company may purchase and maintain insurance on behalf of an individual who is or was a manager, director, executive, officer, employee, or agent of the limited liability company, or who, while a manager, director, executive, officer, employee, or agent of the limited liability company is or was serving at the request of the limited liability company as a director, executive, officer, partner, member, manager, trustee, employee, or agent of a person, against liability asserted against or incurred by the person in that capacity or arising from the person's status as a manager, director, executive, officer, employee, or agent, whether or not the limited liability company would have the power to indemnify the person against the same liability under any provision of this Chapter. (1993, c. 354, s. 1; 1995, c. 351, ss. 8, 9; 1999‑189, s. 4.4; 2000‑140, s. 101(t); 2001‑387, s. 71.)

Reading deep into the sections, wouldn't it be reasonable to think:


- Own properties as H&W (hus and wife)
- Form and LLC management company to oversee them (I manage my own properties now, no PM's [prop managers])
- do business under a seperate DBA

- move "operations" out of the personal home and establish a "location" for the LLC


with the amount of indemnity that the LLC provisions offer, and the ability to insure said entity as well as the "manager", it would seem reasonable to me that, although at arms length, its similar to an "S" corp in the sense of corporate veil, but with greater personal and entity protection. With the op's outside of the home, my wife wouldn't be subject to "known" info as it pertains to being a liable party. As well, she would not have any part of the LLC and would need to be, to be sued as a "party to".


My regular attorney (for closings) over the years has become candid when dealing with me and still holds firm that held as H&W is the safest way to own, but from a management side, would the above no do a good job of shielding?

 

I believe that to be incorrect. They would have to sue both my wife and I. Since she didn't run anyone over, she is not responsible. Personal liability would be restricted to me alone, and assuming no negligence on my part, I would expect insurance to settle.

In NC, LLP's are not very protective in and of themselves, as any partner can make the partnership liable (be happy to post the NC LLP statutes.)
As well, a "business" has profit, an individual has none, just income (still verifying that), and in NC income is not attachable.

Exactly why insure and over insure would be sufficient.....no?

Asset protection is not just about avoiding lawsuits, it's making sure that you retain your assets even in a lawsuit.

Another way is that if you are involved in a business and it goes bust, creditors can't just demand your assets and there is a high percentage that potential creditors will have to look elsewhere if the original company was a C Corp.

Also there are tax implications - if you register a company in another state a lot of the time you don't have to pay certain 'junk' taxes.

Hopefully Dianne Kennedy will reply to this post.....

Rgds.
ProInvestor[/quote]

My business I co-own is fully sell sufficient, we have no debit and own everything so I'm not worried about creditors in that regard. My fear is more an outside lawsuit, not from my rental business.

 

I understand your concern, but all states are different, which is why O.J. lives in Florida now instead of California (he lives via annuities which are not attachable in Fl. but are in Ca.).

I sat and spent plenty a lot of money with an "asset protection" attorney, but in all honesty, felt like the system was to boiler plated and not set up for my individual needs and wants. My closing attorney has been a personal contact for many years and I feel like he (being an investor and entrepreneur) has my best interest in mind.

 

What bothers me greatest, is that I have consulted 3 different attorneys and received 3 completely different opinions. To compound that, I have been doing my own research of the general statutes and none of the 3 opinions seems to really work to protect as I read them vs. the advise I received. I know I should probably do something, but don't want to spend money and time both now and down the road only to find out that the structure created for me is worthless. My in-laws had an "estate plan" done when they lived in Ca. They moved to NC and found out it was worthless, may have even been so in CA. I don't know who to trust or what to do.....if anything. I know that S corp's are the way to separate personal activity from business activity. To me, from my reading, it would seem that forming a management company (LLC), arms length or not is still better than nothing and similar to do business under "S" corps.

Maybe I just need to keep consulting asset attorneys until I begin to hear similar patterns.

 

Sounds good, problem is...........I am the smart one I am so far ahead of anyone I associate with, they'd have nothing for me, which is why I end up at places like this forum. Hoping to land someones attention that can help me in the one area I am stumped on.

The underlying problem is, no one really knows what will really work and what won't until its to late. I guess I'll need to try and find case study on the subject, although not sure what key phrases I'd be searching for.

Anyone have suggestions, I am open

 

I'm not offended at all. What I am, is looking for some strait and correct answers. I read for myself and come up with what would be in contrary to the advise I have paid good $$ for (so who is correct, me or them). I read what is printed here, and it, for argument sake is free advice. Do I take it as gospel? Do I follow it? We all don't know each other from a fence post, so you'll excuse me if I question what comes up here.

As for Dianne, she seems very well versed. Is she versed on NC laws, and case study. Should I be retaining her services outside of here? As for "stack" I have no idea who has more, I don't think it matters, we all want to do what's right. If I'm not right, as you read into my posts, fine, but I'm not convinced as to who is yet. Thats all. And I get more frustrated by the day because of all of the apposing and confusing info and opinions I am being hit with.

 

yes they are. One I didn't know at all, could have gone to a seminar and proclaimed himself an "expert". Although his plan was very comprehensive, almost to much, I felt like it was boiler plate (just based against stories he told me during our discussions), my plan seemed no different from others he spoke of. Could it be that simple that one size essentially fits all? The other is a cousin of an RE development family that has been in RE sales/development/investing for many, many years. I expected him to be the wizard but didn't get that feeling, his plan seemed generic and didn't involve the estate planning aspects the other guy's did (my assumption is that they have to hand in hand). The last advise was from my regular closing attorney, who has handled my business dealings, closing etc for many years, and although he's not an estate planning attorney, he had a completely different opinion as to protection than the other 2.

I just don't know who or what to trust.

 

No you're right ATW, and he told me he's not. But he does his own RE deals and I would guess would be versed enough to protect his own a$$. I went to him on a stop in to say hi trip and just asked a few questions. The guy who represents himself as specializing in asset protection has had an apparently long career as a NY defense attorney, litigator etc. The reason he says he got into this line of work down here, is because he's seen the system from the inside and knows what should work and not. My problem was, that he kept preaching about a book he used as his life's bible "Missed Fortune". From the moment he mentioned it, I couldn't help but wonder if all his "experience" and info as well as my new life plan was a result of this book, or good sound planning based solely on NC statutes and case study. It pissed me off because it all looked so good, and complicated ....but was it correct, and correct for me?
The other claims to be an asset protection and estate planner, but never even broached the estate side, just the avoidance of paying charge orders should they arise.

Next....

 

LOL ....to that last comment, and you are correct
The only investor group in the area consists of two types of people. A) the ones that run it are the ambulance chasers that "we'll buy your ugly house" would screw their own mother to make a buck. And the idiots flush with cash from the sales of their northeast RE that watch to much HGTV and want to be able to tell their friends that they "have rental property" like its a badge of honor. They chase the foreclosures based on the recommendations of the group leaders (I swear its self perpetuating business for those guys). And or end up trying to chase people down who are down and out, with in this area are crazy terms.....etc, you get the picture. I went to two of their meetings years ago and though, "what a bunch of bafoons". I'm looking for leaders not followers. The ones in this town (like me) that have done well, aren't in "share" groups, they keep to themselves and continue to build wealth on the DL.

I don't expect to get all the answers here, maybe just a different take or and idea I hadn't heard of/thought of before. There seem to be a smaller group of more diehard investors with a good bit more experience than the diluted threads on RD.com

 

it is my understanding that under this, the creditor would only be capable of collecting any distributions should any every be paid out. Distributions are not "income" the member receives, as well they (creditor) would pay taxes on awards possibly never received.
Are we on the same page Dianne? Of course this is only one abbreviated case (would love to know where you get these studies, if you would be so kind as to divulge that info ), are you saying that the LLC is the right vehicle? and if so, as owner of the properties? or as owner of the managing company? I don't like the irrevocable aspects of ownership %'s in LP's with LLC management (self managed). I don't like having to give up either majority ownership for the sake of control or the opposite.

For the above to case study to apply, if I understand this, the charge is against the member's interest %? How is that any different than owning as H&W unless I only own a small %

I'm I confusing things? It is getting late

I'd love to post the outline the "specialist" put together for me, get some opinions of it. Maybe I can work on doing that tomorrow. Its in a flow chart type format, I'm sure you'd make easy heads/tails of it.

 

K- I am trying to save properties from myself if that makes sense. We have just bumped up our business insurance as high as they would allow. The company is an S currently and we are considering changes. I am trying to shield the properties from outside creditors (service business or otherwise), the tenants coming at me isn't as big of a concern. The properties are friendly as rentals go (you and I have had that discussion).

 

First I have to say, for someone not trying to stir any pots, you sure know how to ridicule. Instead of attempting to be a psychologist/chiatrist and tell me what I do and feel or don't, why not try to help :thankyousign: If you can't say anything constructive that will assist in my venture, why not just not say anything......please. I question everything, and do nothing until I am clear as to what is right. You call it mistrust, I call it safe and conservative investigation. You don't have to like how I conduct my business.

As far as my "conversation" with Glen. He made me an offer for my properties based on cap rates he expects to receive in his area or on unlike types of investments. If that's his prerequisite for an investment, thats fine, but his plan doesn't fly here. He needs to look somewhere else for 15-20% cap rate. 'Round here, 5-7% is the norm and accepted. His offer was just way off. He couldn't buy those homes individually and come out any better.....it just is what it is. It doesn't work for him, but that's not my fault and you shouldn't be belittling me because of it.