Commercial Real Estate Financing and Limited Liability Companies

By far the most popular business entity for owning commercial real estate is now the limited liability company (LLC).  A limited liability company is neither a corporation nor a partnership, but rather a relatively new form of business entity that enjoys most of best features of a corporation or a partnership, with few of their drawbacks.

Like a corporation or a limited partnership, the investors in an LLC have only limited liability.  They cannot lose more than the amount that they invested in the LLC, and they are shielded from personal liability.  Unlike a limited partnership, everyone is shielded from personal liability, including the general partner - who is called the managing member.

Unlike a corporation, an LLC does not pay income taxes.  Like a Subchapter S corporation, the profits or losses are passed directly through to the members.  The owners of an LLC are called members and not shareholders.  An LLC can have an unlimited number of members, including other business entities, like corporations and other LLC's.

As a commercial mortgage broker or a commercial lender, you will see a great many commercial properties owned in the form of an LLC.  Many commercial properties are intentionally placed in a single-asset, bankruptcy remote LLC, which is created so that the bankruptcy of a parent company does not prevent a lender from foreclosing.

When underwriting an LLC, the lender will want to gather the Articles of Organization, which is an organizing document filed with the state, and the Operating Agreement which spells out how the LLC will be operated and managed and how profits and lossess will be distributed.

The underwriter will want to review the Articles of Organization and the Operating Agreement to make sure that the LLC is authorized to borrow and who is authorized to sign on the loan documents.

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