LLCs and Real Estate Investing — Beware of the “Due on Sale” Clause
LLC’s are great for owning investment real estate! Be careful, however, if that real estate has bank financing in your individual name.
Most attorneys would agree that a limited liability company (LLC) is the preferred entity in which to own investment real estate. An LLC is relatively easy to set up and provides flexibility in ownership structure, management, and taxation.
An LLC protects a real estate investor’s personal assets because the LLC is considered to be separate from the investor personally. In fact, keeping the investor’s personal assets separate and apart from the LLC’s assets is a fundamental requirement to maintaining limited liability protection.
Although it is typically a good idea for investors to transfer ownership from themselves, personally, to the LLC, investors need to be mindful about banking requirements if the real estate is encumbered by a mortgage or deed of trust. When an individual purchases real estate subject to a mortgage, the bank usually provides personal financing, often with relatively low interest rates and amortization periods up to 30 years. Banks are able to do this because they perceive relatively low risk when an individual is going to occupy a piece of real estate as the primary residence.
On the other hand, bankers tend to see rental real estate as a higher risk investment. This is why most banks require commercial mortgages on such properties, which typically have higher interest rates and shorter amortization periods.
Investors need to be careful when transferring by deed property from themselves, personally, to an LLC. Doing so may trigger the “due on sale“ clause in the applicable mortgage or deed of trust between the bank and the individual. Triggering this clause may allow the bank to accelerate the note and force the investor to refinance the mortgage to one with commercial terms. This is especially true in a rising interest rate environment!
So, before you retitle a piece of real estate from yourself, as an individual, to your LLC, seek out the advice of a good attorney or trusted banker to ensure that you won’t run into trouble with your mortgage loan.
Malpractice Issues in Estate Planning
In most cases, an attorney owes no duty to a non-client and therefore cannot be successfully sued for malpractice by a party they have not represented. One exception to this rule is in estate law. Of course an estate-planning attorney owes a duty to their client prior to the client’s death. Some areas in which estate-planning attorneys can be found negligent include drafting errors, errors in execution, failure to accomplish a testator’s intent, failure to update an estate plan based on new laws or facts, failure to investigate heirs and assets, allowing execution when the testator lacks testamentary capacity, and delay in implementation of an estate plan.
Under the privity doctrine, lawyers are directly liable to their clients for breaching their duty. The liability may extend to third parties, specifically the intended beneficiaries.
A Richmond lawyer and his firm are liable for a $603,409.90 bequest that should have gone to the Richmond Society for the Prevention of Cruelty to Animals (“RSPCA”), as a divided Supreme Court of Virginia has upheld a trial court’s decision in a legal malpractice case.
A Chesterfield County resident requested a Richmond lawyer prepare her will to leave her estate to her mother, but if her mother predeceased her, then the estate was to go to the Richmond Society for the Prevention of Cruelty to Animals. The will was prepared and executed in 2003.
The client passed away in 2008, after her mother had died, and the attorney, as the estate’s co-executor notified the RSPCA that it was the estate’s sole beneficiary. However, a title insurance company said the will left only the tangible estate to the RSPCA, but all real estate passed to her heirs at law. The RSPCA sued the attorney who prepared the will for legal malpractice.
At trial, the parties stipulated that the attorney had a duty to prepare his client’s will accurately and that he did not accurately incorporate her intent to give her real estate to the animal welfare organization. The RSPCA’s ultimate bequest, less expenses, would have totaled $675,425.50. A Richmond Circuit Court found the sum of $603,409.90 as damages for the RSPCA. A six-member majority of the court upheld the ruling in its June 2 decision.
Justice Elizabeth McClanahan dissented, saying the RSPCA did not have standing to sue for breach of the contract for legal services between the attorney and his client. The rule of strict privity in legal malpractice actions has not been abolished in Virginia, McClanahan said, and any decision to abolish the common law privity requirement should be left to the General Assembly.
Abandonment of the privity doctrine is “particularly troublesome” in the context of estate planning services, McClanahan said, under the majority holding that the legal malpractice cause of action accrues on the date of the client’s death. This means an attorney may be held liable for malpractice decades after the will was drafted, she said.
Golightly Mulligan and Morgan can assist you with both estate-planning needs and professional liability litigation. Contact us for more information or a consultation.
A Will and a Living Will: What is the Difference?
Although it is a difficult subject to discuss, what will happen to your possessions after you are gone is something everyone should consider. Whether you have many assets or only a few, who will gain control of them should be predetermined before there is ever a need to act upon those wishes.
Some estate planning documents and terms can be confusing. A competent estate planning attorney can explain what each term means and how it applies to your particular situation. You should consider both your death and the time leading up to your death when preparing these documents. While a last will and testament serves to distribute your assets after death, a living will, also known in Virginia as an Advance Medical Directive, allows you to prepare for the time prior to your passing. It is important to distinguish between the two.
A last will and testament does not go into effect until after you die. Its purpose is to distribute your assets such as real estate or tangible personal property to those you wish to inherit them. A living will is designed to prepare for any time you may not be able to make medical decisions for yourself. If you lapse into a coma, if you lack capacity to understand your medical condition and make decisions, your family members and other loved ones will know what you wish for them to do on your behalf, thereby sparing them the emotional, financial and legal burden of deciding your end-of-life care.
A Last Will and Testament should nominate someone to carry out your instructions. Under Virginia law, you can appoint anyone over the age of 18. You should discuss it with the person ahead of time to make sure that 1) they are willing to serve; and 2) they are responsible enough to accept the task at hand. This person is known as an executor and they have a duty to make sure that your property is distributed as you requested in your will.
Different than a last will and testament, a living will is a person's declaration that, under certain conditions, the person wishes to die naturally and without artificial means prolonging the dying process. A person making a living will can specify the conditions triggering the living will’s instructions, and family members are bound to accept those wishes.
It is highly recommended that you have professional legal guidance at the drafting and signing of these documents. An attorney can foresee potential legal disputes and ensure that your instructions will be carried out. Legal guidance ahead of time can prevent your will from being contested or costing your beneficiaries greater expense in legal fees because of poor planning. It is also a good idea to periodically review whether your old estate plan needs to be updated, particularly if you have had a change in finances or circumstances.
Golightly Mulligan and Morgan has vast estate planning experience. Contact our office to set up a consultation to review your estate plan today.
Mary Morgan Joins the Firm, Changing Its Name to Golightly, Mulligan & Morgan
On January 1, 2016, Golightly, Mulligan & Booth became Golightly, Mulligan & Morgan and added an office in Chesapeake with the addition of partner Mary T. Morgan, formerly of Cooper, Spong & Davis in Portsmouth. Jerry Booth has been retained as of counsel for the firm.
Ms. Morgan focuses on professional liability defense and defense of bar complaints and handles general civil litigation matters. She is admitted to practice in all of the state courts of Virginia, the United States District Court for the Eastern District of Virginia and the Western District of Virginia, the United States Bankruptcy Court and the United States Tax Court and has tried numerous cases in the General District Courts, Circuit Courts and the United States District Court.
Ms. Morgan is a graduate of the University of Richmond School of Law was named to the 2015 Class of “Influential Women of Virginia” by Virginia Lawyers Weekly. She is president of the Norfolk and Portsmouth Bar Association, a director at large for the Virginia Association of Defense Attorneys, secretary of the James Kent American Inn of Court, and a past president for the Hampton Roads Chapter of the Virginia Women Attorneys Association. Ms. Morgan also serves as the chairman of the Board of Directors for Edmarc Hospice for Children.
Attorneys Michele Mulligan and Scott Gollightly formed the firm in June of 2012. “I am honored to join with two such reputable attorneys and fine people as Michele and Scott,” said Ms. Morgan. Like Ms. Morgan, both Ms. Mulligan and Mr. Golightly are graduates of the T.C. Williams School of Law at the University of Richmond. Ms. Mulligan also received an MBA from the University of Richmond and has over twenty years of experience in the defense of professionals in malpractice claims. She generally practices in the areas of civil litigation, including professional liability, real estate and business disputes, as well as in the fields of community association law and insurance coverage. Mr. Golightly grew up in Newport News and received his B.A. from Christopher Newport University. His practice is centered on estate planning, entrepreneurial and corporate law, and business succession.