Complex property transfer to LLC with private mortgage; do I need a title company

Complex property transfer to LLC with private mortgage; do I need a title company

Member since 2024 · 2 posts · 1 vote

Hello everyone--

I bought a house in Virginia in cash jointly with my son 5 years ago. He lived in it for 3 years while attending college, and now I am considering transferring it into an LLC. The property has appreciated in value by about $100k. I have also gifted a percentage of the house to him each year, so that he now has a larger ownership %. My son moved out 2 years ago, and I am trying to take advantage of the capital gains exclusion. I am also looking for asset protection. My daughter will be attending the same college next year, and it will be rented for the next 1+ years until she can live there. I created a VA LLC with my daughter as the owner (for my anonymity and asset protection), and was planning to hold private mortgages (using another LLC I created), to strip equity and for anonymity.

I contacted a title company to officially record the sale, but they are requiring 3 separate closings (and tons of extra fees) because there will be 3 liens/private mortgages recorded (one is the original mortgage that I want to reassign since the interest rate was very low; the second will be held by my son to my daughter for his portion of the equity in the home; and the third is the difference which will be between my daughter and my other LLC). My questions are:

1.  Do I need a title company at all?  If so, can I just have them record a single sale, and then file the deeds of trusts as liens at the courthouse on my own to save all the fees later?  I do want title insurance, and doubt it will transfer, since my daughter was not on the original deed when the home was purchased. 

2. Should I just forget the LLC altogether and "sell" the property to my daughter, so she might be able to take advantage of any future capital gains taxes? (Plus I have 529 money I can use to pay the mortgage) If I do this, do I need to go through a title company for title insurance?

3.  I am assuming a warranty deed is the best option over a quit claim, esp since I already filed two quit claims (The first was to change the tenancy from joint to tenancy in common; and the second was to add my daughter as a tenant in common).

My situation is pretty complex...or maybe I'm just making it too complex--I'd love any input anyone might have!

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  • Greg ScottPro Member
    Rental Property Investor · SE Michigan · Member since 2014 · 4k+ posts · 6k+ votes
    2y
    Your story starts with trying to take advantage of the capital gains exclusion.  Are you sure that is even possible?  The property was your son's primary residence, not yours.  I don't believe you could benefit from the capital gains exclusion.

    I'm also not sure this arrangement even provides you any real asset protection.  These entities do not appear to be set up as self-sustaining independent businesses.  A lawyer may be able to argue you have pierced the corporate veil and have the entities disallowed.
  • Patti RobertsonBusiness Member
    Property Manager · Virginia Beach, VA · Member since 2016 · 2k+ posts · 2k+ votes
    2y

    A agree with everything @Greg Scott mentioned.  You are making this way too complicated.  If you "gift" the property your daughter she will be subject to gift tax for the fair market value minus the $18,000 exclusion.  I suggest you meet with a CPA first to figure out the best way to accomplish your strategy.  

  • Member since 2024 · 2 posts · 1 vote
    2y

    Thanks for the replies--I'm not talking about the capital gains exclusion for me, but for my son. If I wait another year to transfer to the LLC, that will not be an option. Also, I set the deed up as tenants in common and gifted a small % of the home each year, which did not exceed the $16k-$18k max gift allowance. Nothing is currently in an LLC--I am just now considering putting the property into an LLC, and moving forward as a business.

  • Lender · Washington DC · Member since 2015 · 2k+ posts · 2k+ votes
    2y

    You have a conventional first mortgage which likely does not line up with selling the property to a LLC. Get permission from the lender before you do the transfer deed. You cannot assign a conventional loan you are not the trustee or owner of the note, only the borrower. Also property taxes jump, fire insurance also increases...

    Title insurance doesn't transfer when you change the deed to LLC.

    You  gifted amounts to son but did your CPA actually set this up?

    You set up LLC to be anonymous but the transfer deed has your name, son's name, your address as public records so changing the title doesn't keep it a secret.

    Is daughter applying for aid or grants? You won't want to give her big tax consequences... talk to your CPA and tax attorney.

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