The best way to understand a corporation, limited liability company (or even a limited partnership) is to realize that each creates a special legal relationship or privilege between the business owner(s) and the government. These areas of government include:
State Government (including state taxing authorities and the state court system).
The Federal Government (specifically the IRS and the Bankruptcy court system).
You may be saying, alright Darius, I still don't understand what you mean by a relationship or privilege. The best way that I can put it is this: A business entity is a legal relationship which allows for certain privileges. When teaching people about entities, I like refer to an often forgotten fact: In England during the colonial period the ability to create a corporation required an exclusive grant (i.e., permission) from the Crown (that's right the King or the Queen!). Remember a business entity is a privilege!
Here Is Another Tidbit: Did you know that when the original 13 colonies were established, many were actually corporations or similar form. For example, the Maryland Company was used to settle and develop you guessed it, the State of Maryland. Other examples include, the Virginia company, the Massachusetts company and others. Why would someone use an entity to explore and colonize the New World? The reason is that colonization and exploration were risky investments. Ships were lost at sea, diseases ended the lives of thousands, and a host of other risks were present with each expedition.
By setting up these expeditions as corporations investors could contribute money but were only be liable for the amount invested. In other words, these early arrangements promoted exploration, development, and commerce by limiting liability for investors. The same reasoning is true today. When liability is limited to what you contribute to a business, people are more likely to start businesses. The reason: Less risk if everything goes wrong but more to gain when things go right! The point of these historical facts is to make it clear that the purpose of a business entity is to limit the liability of owners/investors to the amount contributed to the business. These facts should also make you realize that liability protection is a privilege.
Why Should you be Concerned about Liability Protection?
I am not here to scare you but use common sense. Real estate businesses require you to deal with numerous parties, including: tenants, sellers, partners, investors, lenders, management companies, independent contracts, employees, and others. The more parties you deal with the more likely it is that something may not go as planned.
The first step is to learn how to run your business in fair and careful manner so that you reduce the chances of getting sued. Always remember this: A business entity (LLC, corporation or limited partnership) is not an excuse to act in a careless or negligent manner. You need to be fair when dealing with all parties and you need to outline agreements with partners, vendors, contractors, etc. You need to respond to tenant's complaints regarding rental property. In short you need to become a master good business practices. I spend a considerable about of time in my courses covering a topic I call ‘Lawsuit Avoidance 101'. This means that we teach you good business practices to help you reduce the risk of getting sued. It's simply so important!
Another issue to keep in mind is that since you will be dealing with tenants, sellers, partners, investors, lenders, management companies, independent contracts, employees, county agents, you may get into the position where you will need to assert your rights. In other words, you may need to take another person to court, because your rights have been violated, a contract has been broken, or money has not been paid to you. Many times when you assert your rights, you may then be sued by the party you are taking to court. I know this sounds harsh but it happens! This is called a ‘cross claim' and it means that the party who is being sued is now also suing. Usually this happens because the other party's attorney believes that they have a claim and/or they will be in a better position using a cross claim. Basically this means that for you to assert your own rights, you may risk getting sued.
Always Remember This: There are also steps you can take to allow more chances for a pre-lawsuit settlement. This makes the lawsuit truly a last resort. Ask this question: Do you have alternative dispute resolution clauses in your agreements? Obviously, if you can settle matters outside of court via an alternative dispute resolution method, then may be a big advantage and a savings of time and money. An alternative dispute resolution clause will require parties to work at settling a claim through mediation or another non-litigious (and less expensive) manner. Again, a lawsuit should be the absolute last resort. We cover all of these areas in more detail for investors because it something that most people and even some attorneys leave out! There are also tax advantages and disadvantages to recognize when selecting an entity for your business. We will discuss these in later articles.