07/04/2024
So, your goal is to own income-producing real estate free-and-clear.
Here’s a scenario to consider:
You purchase a fourplex (in an LLC or Trust) with financing and use all profits towards the debt on it. In 10-12 yrs it’s free-and clear. Yay!
A year later, a tenant twists their ankle on the loose threshold to their apartment or the hole in the parking lot and wants to sue for negligence.
1) Attorney looks at fourplex and sees it’s worth $1M and has no debt attached to it. They also think the insurance willl pay out $500k. Attorney feels there will be sufficient payout, so tells tenant they’ll take the case on contingency.
- Tenant sues. Owner suggests a settlement. Attorney sees LLC/Trust can get 80% LTV loan, so $800k. Attorney sees LLC /Trust can sell and net $1M. What might the attorney advise? ($800k to $1M plus insurance?)
- Tenant sues, wins, and awarded $1.5M. (Attorney asked for $1.5M because of equity and insurance.) Even after insurance, LLC/Trust may bankrupt (forced liquidation), sell, or sign over building to plaintiff. Owner is out the $1M of property value, legal expenses, plus the future revenue.
2) Attorney looks at fourplex and sees it’s worth $1M but has debt of $700k. (Owner refinanced it, took proceeds, and bought other investment properties. All properties held in separate LLCs/Trusts, so attorney would have a difficult time going after those.) There’s not enough ‘meat on the bone’, so Attorney either turns the case down or isn’t willing to take case on contingency and tells tenant the estimated cost to pursue a lawsuit.
- Tenant sues. Owner suggests a settlement. Attorney can see LLC/Trust likely can’t get much of a bigger mortgage, maybe 80% LTV ($100k more) plus possible insurance, so advises tenant to settle for that. Owner is out $100k plus legal expenses (plus possible higher insurance premiums).
- Tenant sues, wins and awarded $600k. (Attorney asked for $600k because of equity and insurance.) If LLC/Trust bankrupts (forced liquidation), sells*, or signs over business to plaintiff, owner is out $300k of value, legal expenses, plus future revenue. (*If sold, owner may not get full market price because buyers will do research and see it’s a distress sale and may make low offers.)
- Best case: tenant can’t get an attorney to take the case. Worst case: owner is out $300k of value, legal expenses, and future revenue of THAT property…BUT still has the other properties plus those revenues.
Keeping some debt on property (which gets paid for by tenant revenue) may be a reasonable expense to reduce litigation exposure. Even less expensive when the equity pulled out is used to purchase other income-producing properties. (And the value of sooo much less litigation headache.)
* Literally just attended a REIA mtg in FL that had an attorney as the guest speaker. Spoke about Land Trusts in FL. Included were examples of landlords being sued and losing their properties. It happens.
Disclaimer: I’m not an attorney and cannot offer legal advice. This is presented for entertainment purposes only. Seek your own legal and accounting advice from those that are licensed to do so. If an attorney wants to chime in below, great. If someone wants to tell their own experience, great.