Show notes
Building a portfolio of rental properties can be your ticket to financial freedom. But it also exposes you to risks and the need for asset protection. One way to do this is by transferring your investment properties into an LLC, or another kind of legal entity, like a land trust. That topic inspires many questions among new investors including where they should set up their LLCs. In this episode, we hear from tax and asset protection attorney, Clint Coons, who will answer that question and many more with easy to understand explanations. Among the topics he'll cover are the where, the why, and the how you might want to set up your LLC along with the difference between LLCs and other entities. You can schedule a free session with someone at Clint's firm or watch the replay of a recent webinar by Clint on our website. You need to be a Real Wealth member to access the webinar replay inside our investor portal, but joining is easy and free at www.realwealthshow.com. Audio Transcript: [music] [00:00:00] Announcer: You're listening to The Real Wealth Show with Kathy Fettke, the real estate investors resource. Kathy Fettke: A common question we get from our Real Wealth members is where should I set up my LLC for the best asset protection? Well, it's not that simple. I'm Kathy Fettke. Welcome to The Real Wealth Show. Today's guest is full of information on how to protect your assets from lawsuits. I learned so much from this interview, and I'm so glad I don't have to figure this stuff out on my own. We've got an expert here to do that for us. Clint, welcome back to The Real Wealth Show. Clint Coons: Thanks for having me. Kathy: I got an email recently from somebody saying is it illegal to have an entity in another state from where you live? Thinking that you're tricking the IRS into thinking that you live in that state if you have an entity there. What's your response to that? Clint: That's incorrect. Obviously, you can set up a business entity wherever you want. If you're going to own real estate in another state, take, for example, Florida, then you're legally required to have an LLC set up there or registered to do business there. For example, if you lived in California, and you had property in Florida, you take your California LLC, and you would register it in Florida to conduct business. It is doing business there. It doesn't matter where you sit, where you live, and where the entity is located. In the eyes of the IRS, it all flows back to you, and you're going to pay taxes on that money, regardless. They don't care where it's set up. Kathy: What you don't want to do is say open up a Nevada LLC, and say you live there when you really live in California or something like that. That would not be okay. Clint: That's a different strategy. That is basically tax avoidance where people will-- This was [00:02:00] really popular back in the early 2000s. There'll be a lot of advertising, "Hey, set up an entity in tax-free Nevada and pay zero tax." People would do that with the thinking that if they had an entity there, they wouldn't be subject to federal income tax or state income tax on their business that is derived from a particular state. What we found back in those times that you'd have a lot of Californians would set up Nevada entities, run an active business through their Nevada entity that's actually taking place in California and try to avoid all California state tax. Some people even think that they didn't have to pay federal tax. Those people ended up wearing orange jumpsuits out of them or else having a lot of fines when they were caught. Kathy: You don't want to lie about where you live. In our case, our business is in all kinds of states, but we live in California. No matter what, we got to pay California tax unless we moved. In that case, if we moved, you have to live at least more than six months of the year somewhere else. Is that right? Clint: Yes. If you wanted to change your domicile out of a particular state to a different state, then you would have to establish residency, and that would typically require that you register to vote there, you get a driver's license in that state, and more importantly, the way they track it as well as on utility bills. They would look at your utility bills that are in your name, and they would determine whether or not you actually reside in that property for six months if they wanted to be aggressive. I've seen this happen before with individuals who claim residency in Nevada when in reality, they were not residents there and the home state would request their utility bills for that time, the six months they said they lived there. They would find there was no water usage, no electricity usage. They're like, "You weren't really living there. You were just stating you are." That can get you in trouble. What you have to do is put your mother-in-law or somebody in your property during that time. Kathy: [00:04:00] I don't know if it's true, but I've heard that they can even see where your phone is. These days your phone can tell you where you are. I don't know if they go that far. Clint: No. It's one of the things that-- People go to so much trouble trying to avoid state taxes. I just don't think the stress is worth it at the end of the day. Pay your taxes, if you don't want to live in that state then move and just visit it every once in a while, or set up a secondary home. Kathy: Exactly. That's the thing is you can live somewhere else and just visit a lot, travel a lot. Anyway, let's explain, I know I've used the word entity and for some of our listeners, they might not really understand what that is. What am I talking about when I say entities? Clint: You're talking about a limited liability company, land trust, corporation. It's just something that is formed under state law or not that is used for a specific purpose. We talk about real estate a lot. We're looking at a title-holding entity, something that is going to hold your real estate for a few different purposes. One, it's typically in the asset protection. If anything happens with the property, you're not going to be personally liable. If you get sued individually, your property would be removed from that potential claim. That's per our judgment that would be entered against you. Then there's tax motivations as well that you're looking to control how your tax returns look from the real estate when it hits your 1040. There's lots of reasons why we focus on using entities for real estate investors. Kathy: Most investors, most real estate investors use LLCs. Why is that versus anything else, an S Corp, or a C Corp, or something like that? Clint: It really comes down to the tax benefits the LLC offers an individual who's a passive real estate investor. You want to have flexibility number one in order to move property [00:06:00] in and out and not be hit with a transfer tax, or basically, actually, income tax is what can happen when you have a C or an S Corp. Take the example of I have three properties in an S Corporation, and I decided that I want to pull two of them out and move them to a different company. Those properties have appreciated in value over the last 10 years, and there's $400,000 in gain there. Just by deeding that property out to myself, I'll have to pay tax on that built-in gain even though I didn't sell it. An LLC, you don't have that concern, because you're typically going to set them up to be either disregarded, which means the IRS just looks through it and you're considered to be the owner, or a partnership, which, again, it looks through, and you're going to pay the taxes on the income and you put that income on your 1040. It's treated a lot different than an S or a C Corp from being able to move assets in and out and not having to recognize tax on that built-in gain. That's why they tend to gravitate towards an LLC versus a Corp and more importantly, the asset protection. They're easy to set up. It doesn't require a lot of maintenance from you or as a corporation, you got to have these annual meetings, possibly even quarterly meetings. LLC, set it up, forget it, set a bank account, collect your rents inside of there, and you're off to the races. Kathy: Do the S Corp, C Corp, and LLC has the same asset protection? Clint: When you talk about S and C Corp, what you're really referring to is federal taxation unless you're thinking about the actual form of a corporation. From a tax standpoint, an LLC can be treated as a C or an S Corp. From the physical attributes of the entity, if I were to say set up an entity in Texas, and I chose to set up a traditional Corporation Inc versus a limited liability company, for surely that if something were to happen with the asset [00:08:00] held inside of there, let's say I had an LLC and a corporation, I put a property into each of them, if my Corporation was sued, I'm protected as a shareholder. If my LLC is sued, I'm protected as the member of the LLC. That's the distinction between the two. Owners in LLC are members, owners in corporations are shareholders. What's different is when you yourself, let's say you're driving down the street and you clip somebody that's on a bicycle, and the bicyclist sues you individually and they obtain a judgment against you for $300,000 for dental work and face reconstruction. What can they take in that judgment? What can they do with it? They can levy on any assets you hold in your own name. If you held that rental real estate in your own name, then they would just record the judgment in the county where the property is located. It just sits there; it grows its 10% rate of interest. When you sell, they get paid or you refinance, they get paid. If you didn't have any property in your own name, and all you had was a Texas LLC and a Texas Corporation, they have some other ways to recover against you. On your shares of your corporation, they can levy on them and take them because shares are not protected from creditors, whereas the LLC is a different animal. They could not levy on your LLC membership interest and take it from you and thereby owning your property like they couldn't with a corp. All they can do is put a charging order, which means that they're not entitled to anything unless you want to give them something. It's because of that outside protection that makes the LLC such a unique and favorite entity amongst a lot of real estate investors. Kathy: Wow. After all these years, I've never really heard it put that way, or maybe I have when you were teaching and I wasn't paying attention. Clint: Or maybe I didn't put it as succinctly when I was teaching. Kathy: Maybe. Let's say I buy some properties in Florida. What would be the best state to [00:10:00] hold the LLC in? Clint: Well, it really depends. What happens when you're buying properties, you have to look at the state itself and determine what is the best structure for that investment. You bring up Florida. It might be that if I was setting up a structure for a Florida investor, I would choose to use land trust rather than LLCs because land trusts in Florida provide protection from what we refer to as inside creditors, meaning your tenants. If something happens with the property and you have a Florida land trust, they can't sue you as the owner of the trust. They can only sue the trust. Now where the trust doesn't protect you is that if you get sued individually, they can take the trust and the property from you. For a Florida investor, I'm probably going to recommend if you have debt on the property, because now you've got to worry about doc stamps in Florida. Hey, let's set up some Florida land trust, transfer the property and it's exempt from the doc stamp in Florida. Then we got these Florida land trust there then have the Florida land trust owned by a separate LLC, maybe a Delaware series, LLC, and create separate cells for each of the land trust. If you do get sued, they can't take your land trust from you. If you were to flip that structure say look at Tennessee, then it's going to be different. Then I'm going to use a series LLC, in Tennessee when you're owning each of the cells, because they're, they have a franchise tax that you have to be aware of. You have to apply for the fonts exemption, it's set up in a very specific manner, so you don't run into a problem like a client I've started working with where a CPA structured them, and he was paying $45,000 a year in taxes that he didn't have to pay because the CPA, this client is from Florida didn't understand the way taxes worked in Tennessee. By just creating the structure, you can really screw it up for someone. It would depend on where you're owning the property, what type of structure we're going to use and that's why people get confused many times. They think, my buddy set up an LLC. [00:12:00] [inaudible 00:12:01] It depends. If you're in California, I might use a Wyoming statutory trust to avoid the franchise tax there and it'll be at 10 properties. I can save $8,000 a year. Again, it depends. Kathy: Don't try to do this on your own. Clint: Well, you could. You probably pay more in the long run. I always tell people, when somebody starts working with an attorney or even with Anderson, they see the entity set up as a cost and they don't look at it as an investment. I tell them, this is an investment into your property. You're protecting it. You're making sure it's set up the right way so you're not going to run into these problems down the road. If you get caught up on cost, you're going to be tripping over yourself and three years down the road when you're involved in that lawsuit and you're looking back and saying, "Wow, I wish I would have invested the $1,500 because now I'm staring down a judgment of $600,000 and I'm going to lose everything." That's when it comes back into perspective for a lot of individuals. Kathy: Now, at what point do you need that kind of Bulletproof proof type of asset protection? Let's just say you're buying your first property. You don't have a lot of savings in the bank or equity in your home. You don't make a lot of money. How much do you need at that point? Clint: You see, this is where I tend to disagree with a lot of professionals, when it comes to asset protection. Take two individuals, you and me. I have worked hard, saved up my down payment. Now, I have my first house. I have about $25,000 in equity in this property and I have a personal residence that has maybe $50,000 in equity and I got some money in savings. You on the other hand have a hundred properties. Most people are going to look at us and they're going to say, you need more protection than me because you have more to lose. [00:14:00] Granted, there's some truth to that. You have 100 properties, I only have one. I tend to look at it as follows. When it comes to protecting my assets, the new investor needs asset protection more than the experienced investor. It's counter-intuitive for so many people when I say that. They're like, "No, Kathy has so much more to risk than you Clint. You don't need protection there." The way I like to explain it as follows. I've got one or two properties. I'm going to tell you to set up one LLC per property. Whereas Kathy, I might tell you to put 5 properties per LLC, or maybe you want to do 10 properties per LLC. The reason why is that if something happens to me and I'm involved in a lawsuit and I have these two properties that I've saved for the last five years to get into those properties so they're going to produce cashflow for me in the future, is going to be my retirement. One lawsuit, what does it do to me? Wipes me out. Now I've lost everything. All the work and effort I've put in the last five years, I have zero cashflow coming in. Assume those two properties generated a combined income of $15,000 each on an annual basis. I just lost $30,000. You on the other hand, you set up your LLC where you put 10 properties per LLC so you have 10 limited liability companies, each generating the same amount of money. Each generating 150 K a year. Well, you lose one LLC with 10 properties, you just lost 150 grand, but you have nine of the other property still producing income for you. Yes, it sucks, but your lifestyle is not changing. You're still going to Hawaii. You're still doing the things that you like to do because that one lawsuit didn't wipe you out. Whereas the new investor that's worked so hard to finally get some purchasing power, finally grasp the concept of rental real estate. What it can do for you, they're back at square one or worse yet, they're behind because they have a judgment that's been recorded against them and they have to pay off before they're ever going to be [00:16:00] able to qualify for another loan. [unintelligible 00:16:04] with my own investing. I was more concerned about asset protection when I had 50 properties. Now that I have close to 200 properties, I do things differently because I don't have the same issues any longer. I can afford to lose 10 properties. It would suck, but it's not going to change my investing or my lifestyle at all. Maybe it's one less case of wine I buy on a monthly basis, but it ain't that bad. For the new investors, I would say, think of it in those terms. Kathy: Well, that's one of the reasons I love to listen to your advice is that you are a real estate investor yourself. You own a lot of properties. You talk a lot about asset protection and tell people you own properties so they know, that you probably have a high net worth and so you've got to be extra protected and you're a tax attorney. Is that right? Yes and a CPA? Clint: No. I have a personality [unintelligible 00:17:02]. Kathy: [laughs] Okay. What kind of personality would you need for that? Clint: In my experience, getting on something like this would probably take a Xanax or two to calm my nerves down and then you would have to drag all the information out of me. I like to talk too much. That's what I'm getting at. Kathy: All right. What are some of the typical questions that people ask at your live events and now I guess Zoom events? Clint: Everybody gets concerned when you set up an entity, for example, an LLC, that if they transfer their property into the LLC, that it's going to accelerate their mortgage and they can't do it because of the nuance sale clause. That's probably the number one question I receive. Vigil investors is pushback to putting properties into entities and so they forgo asset protection because there's this myth that if [00:18:00] you transfer real estate into an LLC, you've got a lender in the back room who's going to catch it and say, "Oh, you move property. You got to pay that mortgage off or we're going to foreclose." The reality is is that most people who perpetuate this myth or continue to perpetuate, it used to be concerned probably 15 years ago is that you have to look at the loans out there. Most investors are working with a broker to obtain a loan to buy a piece of property and those are always going to be, or 90% of the time, I would say, they're Freddie Fannie conforming loans. They're writing them so they can sell them to [unintelligible 00:18:34], that's what we mean by conforming. They're going through all the guidelines that [unintelligible 00:18:39] put out as if they were writing the loan themselves, underwriting. Now, when you use one of those types of products, you're allowed to transfer title into an LLC and it will not violate the due on sale clause. You can look at their servicing manuals. Both of them have it stated in there, black and white, as long as the member of the LLC is still the borrower or as long as the manager of the LLC is still the borrower, you're good to go. This notion that you can't transfer real estate into a limited liability company for fear that the lender is going to accelerate is just nonsense. On top of that, the only time it actually really comes up as if it was a personal residence, then you have to season it for a year before you can move it in so you have to live in it for a year, treat as your personal residence, because that was a different type of loan, but most people don't know the questions to ask and so they make these assumptions because of a lot of misinformation that permeates the internet, unfortunately. They don't put the right types of protection in place. Kathy: If you've lived in your primary for over a year you could transfer your primary into an LLC? Clint: No. Which probably it is because it's been bought up by them. You can transfer in after one year. That's the one exception you got to see. [00:20:00] The only other types of exceptions you're going to have is if you buy A property and then you're looking to do a cash-out refi. Then you have a six-month seasoning requirement on that before you can do a cash-out refi. Which is different than just doing a straight-up refi. I mean I always talk, not always. I've told people when I first got started investing I think it was maybe I had put down $5,000 for my first property. This was in Memphis. I funded it with a hard money loan where they did it not only the purchase but the rehab. They gave me all the money for it. Then after I bought it it was anticipated that there would be X amount of equity in there so I could go in and do a refi on that property, convert it into traditional loan, and cash out the underlying hard money lender. It took me three months and I got into this property. It was about $105,000 property at the time for a little under $5,000 if I recall. I did a few of those that way where I would use hard money to pay for the property and the rehab and then I would go in because I knew would have enough equity in the property afterwards to cash it out with the traditional loan. Those you don't have a seasoning requirement because I wasn't taking any cash out. If you understand how the way lending work there's a lot of opportunities for people. Kathy: Absolutely. Are you seeing those opportunities today with the [unintelligible 00:21:26] properties out there? Clint: I don't look for those anymore. Everything I do now is I buy for cash because we're at a point now in the things that we do in the markets that we're in. They're more low-income housing so I'm picking up homes for $15,000 and I'm putting in maybe 10-15 grand and then it's producing 500 bucks a month on average, $600 a month. Those types of deals you're not getting a loan on. Kathy: You're still finding those? Clint: Yes, more than I can handle. Kathy: Wow, good for you. Clint: I can't tell you where are though. Kathy: No. [00:22:00] I was going to say-- Clint: I can tell you that. We build up a pretty big network in this area. It's in North Carolina, we'll give you that. Those types of deals a problem that you're going to-- I think you could still find those deals that I was just referring to because the market is appreciating. When I started buying those deals in Tennessee that was back in 2005. You had a strong market. What worked for me is that you had appreciation. You knew when you got done with this rehab, you were typically going to have 20%-30% equity in that property. That's what allowed me to do that. When you're in those types of market, in that type of real estate market, I think you can still do those deals. They're still out there if you can find them. Kathy: That's great. Yes, if you can find them. All right. A common question we get and that we've discussed on this show is the single-member LLC and if that still offers the same kind of protection? Clint: It depends on the state. Everything comes down to state law. In some states such as Florida, they do not provide protection for single-member limited liability companies. When you say protection, it has nothing to do with the LLC being sued. If you have a tenant in the property and the tenant is injured and they sue, the LLC is going to protect you. This notion that if it's a single-member LLC it doesn't offer asset protection. Only pertains to this what we call a charging order that is if you're sued individually, they can take your limited liability company from you. A place like Colorado or as I used Florida, they do not protect the LLC from your personal creditors whereas if you flipped it, you put it in Texas and you're one owner in a limited liability company and you're sued individually and they get a judgment against you, in the example that I used earlier, they couldn't take it there because Texas law prohibits a creditor from taking [00:24:00] a single member's interest in a limited liability company. Kathy: Wow. Again, don't try this on your own unless you've spent-- How many years have you been studying this? [laughter] Clint: Oh my gosh, you're going to make me feel old now. I got to back into it. It's probably 25 years. Kathy: It's just amazing how every state is different. If you owned properties in Texas, would you want to just get a Texas LLC? Clint: If I had properties in Texas, which I do, I have a bunch in Houston, I would use a texas series limited liability company and I would set up a separate sale for each of those properties. The reason I would do this is that for each sale that you set up it's treated like a separate limited liability company, but you don't have to file it. You escape all of the additional filing fees and legal costs associated with setting up multiple LLCs and you get the same baked-in protection for those deals. That's the structure I would recommend for a texas investor that's buying single-family homes. Again, it's also going to be based on how you're buying. If you're buying onesies and twosies, yes, that's the way it's going to work, but if you're buying in bulk and you're using may be institutional financing then it's going to be a different structure on how you're going to go about putting that one together. Kathy: It sounds there isn't really one answer to my next question which is how many properties should you have in one LLC? [laughs] Clint: It depends on-- All right. I always look to the finance inside of it. If you're dealing with an institutional lender and you're going to be packaging up, say it's a 10 pack or 20 pack of properties, you're looking at one limited liability company for all those. They're not going to allow you to separate them out. Many times what I'll do is I'll start in Delaware and then I'll foreign file it in the state where the property is being acquired because those [00:26:00] types of lenders prefer Delaware LLCs. They think that they have more protection for the lender from a fiduciary standpoint. If you're not and you're just a new investor, you're buying single-family homes here and there. If it was in Texas I would set up one Texas LLC. If you want anonymity I might have a second Wyoming LLC to own that Texas LLC so people don't associate the company back to you. Then I would just create sales for each of my properties. I would recommend when you're starting out I would do one property per LLC because if something goes wrong like we were talking about and you took the approach, I'm going to save a little money because of the cost. I'm going to put four properties in one LLC. That's fine. The likelihood of being sued is probably pretty small but if you're the one that gets sued, you'll be the next story at my future event when you call me up and say, "Man, I wish I would have followed your advice. I lost all four of my properties and I'm having to start over. My income just dropped by $37,000 a year because of that mistake." Focus on the cash flow as well. It's not only about equity which a lot of people-- I used to make that mistake when I first started practicing and buying property. I would focus on the equity, not on the cash flow. For many of us, we buy for cash. Kathy: Which again leads to my next question. We've had Real Wealth Network almost 18 years now, speaking of aging and feeling it. I don't know if I've heard of one of our members. We have 54,000 now. I don't think I've heard of one single lawsuit. Which is great news and yet, here I live in California where we have fires and it's very strange how the fires jump from house to house. The house that we own, the fire seem to just jump over it. It's been there [00:28:00] 100 years and it's never burned but the house next to it does. We still have fire insurance and it's expensive in California. It's just an interesting question of the chances of getting sued are pretty small but you don't want to be that one especially with the more properties you have I guess the more your chances increase. Clint: Correct. All right. I've never been sued on my properties. I use the same protection I tell my clients they should set up. I've had some scares. I had a tree fall through a house during a wind storm and narrowly missed the occupant right through the master bedroom. Had it been another four feet one way it would have killed the individual. That could have been a horrendous lawsuit. It potentially happens. I run into people all the time who have stories where they've lost everything and they're 55 years old and they're starting over. The reason why I set up LLCs is for the same reason you buy fire insurance although your houses never burn because that one time there's no going back. You can't put that hose back in the barn at that point and there's nothing we can do for you. The other benefit of using the limited liability companies and structuring the right way which transcends just asset protection is the fact that real estate investing is a business. I tell individuals LLCs can help you do more if you understand that and you set them up the right way so your tax returns appeal to lenders, underwriters. A lot of people don't understand that other side of it, the ability to borrow that you can really massage a tax return so it is more appealing to an underwriter when they're going through and they're trying to determine whether or not you qualify for this loan. I see a lot of investors they'll have their properties, they'll show up in their 10-40 scheduling page one and then they get up to this point where they're struggling [00:30:00] with their debt to income ratios and trying to close on that next deal. They're having difficulty. They're looking at the lender and they're seeing what the lender is doing like, "This is BS. I make more money than you're giving me credit for." Again, because they're Freddie, Mannie typically conforming loans they have to put you through an underwriting procedure that limits how much of your rental income they can count. If you change your tax return and you use entities in a different manner, you can get 100% of them. It's amazing. All you have to do is put the information in a different box on your return because the entities allow you to do this and it then gives credit for 100% of your income. Kathy: Once again. Clint: I just found that from working with underwriters. We used to have our own mortgage business I set up back in 2002. It was just little tricks you started learning from doing it. Kathy: Oh, I didn't realize that. How hard is it to get a loan? Let's say you own 10 properties within an LLC, how difficult is it to get commercial financing for that? Clint: I don't think it's going to be difficult if you can find the right lender. We have clients that do it all the time so you're going to cross-collateralize all those assets at that point in time. The best thing to do in those situations is work with a community bank and get them to take that loan on. Then, when you close one of the conversations you should have is I would rather not have 10 assets in one entity. I'd like to spread those out amongst other LLCs even though you cross-collateralize them all. You'll find that a community lender many times is going to be open to that. I just did one for a client that has a bunch of property in Maine. He was refinancing 15 properties that were formerly in one LLC. Now, we've broken them up and the lender accepted it on the refi even though we cross-collateralized. [00:32:00] It's good. The thing is too when you're negotiating those types of loans you want to make sure that you always seek the ability to substitute assets because if you're going down that road you'll find in many of the loan docs that the lender will require as you sell properties to pay back down the loan. You want to write a substitution which gives you the ability then to escrow the funds, to take those funds and use them to acquire replacement property without having to pay the loan off. That's just an aside. I went down a little rabbit hole there but if you're going to do it you should at least know that. That's an option you should be looking for that in the loan docs. Write a substitution. Kathy: There are so many more questions I have but I know that you do ongoing education that's very in-depth and you also have consultants. I believe if people just click the link in the show notes they can get a free consultation. Is that right? Clint: Yes, we'll definitely set up a free strategy session for them. Look at their individual situation and then because they come through Real Network we have some special offers for you as well. Kathy: Okay, great. Again, that link will be in our show notes. All right, Clint. Well, thank you so much for being with us here today on The Real Wealth Show. Wishing you a happy 2021. Clint: Thank you. Likewise. Kathy: Thank you for joining me here on The Real Wealth Show. You can go to realwealthshow.com for more information. Announcer: The views and opinions expressed in this Podcast are provided for informational purposes only and should not be construed as an offer to buy or sell any securities or to make or consider any investment or course of action. For more information, go to realwealthshow.com. [00:33:51] [END OF AUDIO]