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Do I need an attorney to help to form an simple LLC for Real Estate transactions?

San Francisco, CA |

the realtor told me I do not need an attorney, but the CPA told me I need an attorney to form an LLC. I am forming an LLC to buy and resell properties.

Attorney Answers 4

Posted

Yes, if the purpose of the LLC is to buy and sell real properties,and if you have never set up an LLC before, you definitely need an attorney. In fact, you might need to set up more than one LLC.

Based upon my experience, expensive and time-consuming litigation involving LLCs often results from the LLC's Operating Agreement was not properly prepared.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

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Posted

thanks a lot Frank, do you know why we need to set up more than one LLC and how does it work?

Posted

There are many websites where you can form an LLC quickly and inexpensively, without an attorney. The problem with the sites is that they ask you to make very important business decisions, on the spot. For example, you will need to identify members and managing members and determine how many of each there will be and their duties.

As indicated in the previous answer, the LLC's operating agreement is critical and can result in legal disputes or a smooth running organization. It would be worth your time and money to have someone familiar with LLC's, in general, and your organization, in particular, look at how the operating agreement should be set up.

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Posted

The online resources are useful for general purpose entity formation. However, they have their limitations when the corporate entity is for a specific purpose. As my colleagues indicated, the Operating Agreement is a key document to the LLC formation. The advice of your CPA, who I presume has knowledge of your needs, should be followed. An attorney can advise you as to the requirements involved. I would recommend that you take the time to meet with an attorney and then decide which course is right for you.

The information presented here is general in nature and is not intended, to be construed as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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Posted

I agree it is advisable to have an attorney draft the operating agreement. There are also tax consideration. An LLC can be taxed as a corporation or a partnership. This is very important when the LLC will be involved in real estate transactions. If you ended up operating as a corporation you would likely want to be treated as an S-Corporation for tax purposes so your profits are not double taxed. But if the LLC has any passive income you may not elect S-Corp status. There would be no passive income from flipping the properties, but if you were unable to sell and had to rent the property that could be considered passive income. If you organize the LLC as a partnership you can avoid this and it has similar flow through tax benefits to the S-Corp and allows passive income such as rents on property. The Operating Agreement should reflect whether you want the business to operate as a corporation or partnership.

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