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A written agreement, drafted by a lawyer, will help establish the ground rules for your partnership A few of the points it should cover include: Type of legal structure Name and location of the partnership Goals, objectives, and duration of the partnership Names of investors, their interest and responsibilities Financial investment by the investors, and means (if needed) for securing additional capital Management responsibilities, and the role any of the partners will play How the partnership will handle financial matters, from operating expenses and accounting to signing cheques How investors enter and leave the partnership Settlement of disputes, and a non-competition clause should a partner leave If a co-tenancy agreement, the relation between the co-tenants and their respective responsibilities and fiduciary duties Never go into a partnership without considering the legal implications of a dispute Remember, 80 percent of business partnerships fail, and yours may be one Knowing what to do when things go bad could save you the time and anxiety of a protracted and fractious legal dispute Your backup plan could be as simple as a withdrawal strategy for disgruntled partners, or a buy-out clause that allows you to make an offer to a partner who no longer fits with the others Or it may be an agreement to seek the mediation of a third-party should conflict arise (we discuss mediation and arbitration in more detail at the end of this chapter)
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5: Looking Before You Leap: Ownership and Legal Considerations
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Having a limitation on liability can also be helpful, especially if one partner leaves and decides to sue the partnership for whatever reason Even if the allegations are proven untrue, you could face spending several thousand dollars to defend yourself unless you ve vested responsibility for all claims in the partnership By addressing the potential for disputes before they happen, you increase the chances of the partnership surviving and working for the remaining partners if good terms go sour
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Taking control
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Don t be afraid to control your interests in a partnership this is as important to reaching your investment goals as controlling the steering wheel is to reaching the destination on a road trip Certain partnerships allow more control to the individual investor than others, especially in the decision-making process Remember, too, that the amount of control you have in the partnership s operation could affect your exposure to risk and liability Control doesn t relate just to management You may be asked to invest time and money that you can t easily afford into making the partnership work Knowing the demands that will be placed on you will limit any feelings of resentment that could sour the deal Also make sure the demands being placed on you are in line with the cash investment you ve made in the partnership
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Getting out
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Managing your exit from the partnership is important This could be an advantage if you believe the partnership is shifting from the goals it had when you became involved, or if you want to secure the return on your investment Assess the liquidity of your investment (discussed in this chapter), and, if possible, make sure to include a clause that allows you to sell your interest to your partners should you wish to leave The price of liquidity may be a penalty Make sure you have the terms of any penalties for leaving the partnership in writing In exchange, you are able to secure the liquidity of your investment on commonly agreed terms
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Part II: Preparing to Buy: Financing Real Estate Investments
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Investigating Tax Implications of Ownership
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Taxes are a significant consideration as you choose an ownership structure for your real estate investments From a tax point of view, you experience either direct or indirect benefits from the ownership form you select
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