Commentary

by Barry

How to Protect Your Personal Assets with the Right Business Entity

Starting a business is an exciting venture, but it also comes with risks. One of the most important steps you can take as a business owner is to protect your personal assets from potential liabilities. Choosing the right business entity can create a legal separation between your personal and business assets, safeguarding your financial future.

At Edwards Law, we help entrepreneurs and business owners select the right business structure for their unique needs. Let’s explore how the right business entity can protect your personal assets and set your business up for success.

The Importance of Asset Protection

When you operate a business, you take on various risks, including lawsuits, debts, and financial liabilities. Without the proper protections in place, your personal assets—such as your home, car, and savings—could be at risk if your business faces legal action.

This is where the right business entity comes in. By forming a legal structure that separates your personal and business assets, you create a protective barrier that shields your personal finances from business liabilities.

Business Entities That Protect Personal Assets

Several business structures can provide liability protection. Here are the most common options:

1. Limited Liability Company (LLC)
   • How It Works: An LLC is one of the most popular options for small business owners. It offers liability protection by separating personal and business assets.
   • Key Benefits:
     • Simple to set up and manage.
     • Provides pass-through taxation, avoiding double taxation.
     • Protects personal assets from lawsuits or debts related to the business.
   • Best For: Entrepreneurs, freelancers, real estate investors, and small business owners seeking a balance between simplicity and liability protection.
2. Corporation (C-Corp or S-Corp)
   • How It Works: Corporations are separate legal entities that provide strong liability protection for owners and shareholders.
   • Key Benefits:
     • C-Corps can attract investors and issue stock.
     • S-Corps offer pass-through taxation, avoiding corporate taxes.
   • Best For: Larger businesses or those seeking to raise capital through investors.
3. Limited Partnership (LP) or Limited Liability Partnership (LLP)
   • How It Works: Partnerships provide liability protection for limited partners while allowing general partners to manage the business. LLPs extend liability protection to all partners.
   • Key Benefits:
     • Flexibility in management and profit-sharing.
     • Liability protection for certain partners.
   • Best For: Professionals like lawyers, accountants, or real estate investors.

Business Entities That Lack Personal Asset Protection

While some entities provide strong liability protection, others do not. If you’re currently operating under one of these structures, consider upgrading to a more protective option:

• Sole Proprietorship: The simplest business structure, but it offers no separation between personal and business assets. You are personally liable for all debts and legal issues.
• General Partnership: Similar to a sole proprietorship, a general partnership lacks liability protection for partners.

Additional Steps to Protect Personal Assets

Forming the right business entity is essential, but there are additional steps you can take to strengthen your asset protection:

1. Separate Personal and Business Finances:
   • Open a dedicated business bank account and credit card.
   • Avoid mixing personal and business expenses.
2. Maintain Compliance:
   • File annual reports, pay taxes, and keep accurate records.
   • Failure to follow state regulations can jeopardize your liability protection.
3. Get Adequate Insurance:
   • Consider liability insurance, property insurance, and professional indemnity insurance to cover unexpected risks.
4. Draft Legal Agreements:
   • Use contracts to define roles, responsibilities, and liabilities with clients, partners, and vendors.

How Edwards Law Can Help

Choosing the right business entity is a critical decision, but it can feel overwhelming. That’s where Edwards Law comes in. Our experienced team can:

• Evaluate your business goals and risks.
• Recommend the best entity to protect your personal assets.
• Handle all the paperwork, from filing formation documents to creating operating agreements.

We’ll ensure your business is structured correctly, so you can focus on what you do best—growing your company.

Contact Us Today

Don’t leave your personal assets vulnerable. Let Edwards Law help you create a solid foundation for your business with the right legal protections. Contact us today to schedule a consultation. With the right guidance, you can confidently protect your personal assets and achieve your business goals. Let’s get started!

by Barry

Wills vs. Trusts: Understanding the Differences

Planning for the future is one of the most thoughtful things you can do for your loved ones. But when it comes to estate planning, many people face the same question: Should I choose a will or a trust? Both documents are essential estate planning tools, but they serve different purposes and have unique advantages. Understanding the differences can help you make the best choice for your needs—and ensure your loved ones are cared for according to your wishes.

At Edwards Law, we specialize in personalized estate planning to fit your goals and priorities. Let’s dive into the key differences between wills and trusts.

What Is a Will?

A will is a legal document that specifies how your assets will be distributed after your death. It also allows you to:

• Name an executor to carry out your wishes.
• Designate guardians for minor children.
• Provide instructions for distributing personal property, such as jewelry or heirlooms.

Wills are simple to create and can address most estate planning needs. However, they must go through probate, a court-supervised process to validate the will and oversee asset distribution. Probate can be time-consuming and costly, depending on your state’s laws.

What Is a Trust?

A trust is a legal arrangement where you transfer ownership of your assets to a trustee, who manages them for the benefit of your chosen beneficiaries. Unlike a will, a trust:

• Can go into effect during your lifetime (a living trust) or after your death.
• Avoids probate, allowing for a quicker and more private transfer of assets.
• Provides greater flexibility and control over how and when your assets are distributed.

Trusts are especially useful for individuals with complex estates or specific goals, such as providing for children over time, managing large assets, or reducing estate taxes.

Key Differences Between Wills and Trusts

Probate:

• Wills must go through probate.
• Trusts avoid probate, which can save time and money.

Privacy:

• Wills are public records once they enter probate.
• Trusts remain private, keeping your financial matters confidential.

Timing:

• Wills only take effect after your death.
• Trusts can manage assets during your lifetime and after your death.

Cost:

• Wills are less expensive to create but may involve higher probate costs.
• Trusts require more upfront investment but can save money in the long run.

Flexibility:

• Wills provide straightforward instructions for distributing assets.
• Trusts allow for more detailed instructions, such as staggered payments to beneficiaries or managing assets for minors.

When to Choose a Will

A will might be the right choice if:

• You have a smaller estate with simple distribution needs.
• You want to name guardians for your minor children.
• You’re looking for an affordable estate planning option.

When to Choose a Trust

A trust might be the better option if:

• You want to avoid probate for privacy or efficiency.
• You have a larger or more complex estate.
• You need ongoing management of assets, such as for minor children or beneficiaries with special needs.
• You’re concerned about minimizing estate taxes.

Can You Have Both?

Yes! Many people use both a will and a trust as part of a comprehensive estate plan. For example, a trust can handle significant assets and avoid probate, while a will can cover smaller personal items or name guardians for children.

Get Personalized Estate Planning Advice

Choosing between a will and a trust—or deciding to use both—depends on your unique circumstances. At Edwards Law, we take the time to understand your goals and craft a personalized estate plan to protect your loved ones and your legacy.

Ready to secure your future? Contact Edwards Law today for a consultation. Let’s build the estate plan that’s right for you.

by Barry

Why Homeowners Need Title Insurance

When purchasing a home, you’re making one of the largest investments of your life. It’s an exciting milestone, but also a complex process with many moving parts. One critical step that sometimes gets overlooked is obtaining title insurance. This vital protection ensures your ownership rights are secure and protects you from unforeseen issues that could arise with the property’s title.

Let’s explore what title insurance is, the risks it mitigates, and why every homeowner needs it.

What Is Title Insurance?

Title insurance is a type of policy that protects property owners and lenders against financial loss from defects in a property’s title. Before a property is sold, a title search is conducted to identify any legal issues, such as unpaid taxes, liens, or ownership disputes. While thorough, title searches can sometimes miss hidden problems. Title insurance acts as a safeguard, covering the cost of resolving these issues if they arise after you’ve purchased the property.

Common Title Issues

Even with the most diligent title search, some issues may not become apparent until after closing. Here are a few common title problems that could jeopardize your ownership rights:

1. Unknown Liens: Previous owners may have outstanding debts, such as unpaid taxes or contractor bills, which can result in liens against the property.
2. Errors in Public Records: Clerical mistakes or incomplete records can affect the chain of ownership.
3. Forgery and Fraud: Past deeds may contain forged signatures or fraudulent transfers, which can cast doubt on your ownership.
4. Boundary Disputes: Misunderstandings or errors in surveys can lead to disputes with neighbors over property lines.
5. Heirs and Estates: An undisclosed heir could come forward claiming ownership of the property if the estate of a previous owner wasn’t properly settled.

Without title insurance, resolving these issues could lead to costly legal battles, and in some cases, even the loss of your home.

Two Types of Title Insurance

There are two main types of title insurance: lender’s title insurance and owner’s title insurance. Both play an essential role in protecting your investment.

1. Lender’s Title Insurance: Required by most lenders, this policy protects the lender’s financial interest in the property. However, it does not protect the homeowner.
2. Owner’s Title Insurance: This optional policy provides protection for you, the homeowner, covering the full purchase price of your property. It ensures your rights as the owner are safeguarded against title defects.

While lender’s title insurance is mandatory, owner’s title insurance is an additional cost that’s well worth the peace of mind it provides.

Why Homeowners Need Title Insurance

1. Protect Your Investment: Your home is likely your largest financial asset. Title insurance ensures your ownership is secure, protecting your investment from unexpected claims or disputes.
2. Avoid Costly Legal Battles: Resolving title issues without insurance can lead to expensive legal fees. Title insurance covers legal costs associated with defending your ownership rights.
3. One-Time Cost: Unlike other types of insurance, title insurance requires only a one-time premium payment at closing. This provides lifelong protection for as long as you own the property.
4. Peace of Mind: Knowing that your property is free of hidden title issues allows you to enjoy your home without worrying about future ownership disputes.
5. Compliance with Lender Requirements: Since most lenders require a title insurance policy, having one in place helps ensure the smooth completion of your home-buying process.

Who Needs Title Insurance?

Whether you’re a first-time homebuyer or a seasoned investor, title insurance is essential for anyone purchasing real estate. It’s especially crucial if you’re buying:

• Older Properties: These are more likely to have complex ownership histories or unresolved title issues.
• Foreclosures: These properties often come with a higher risk of unpaid liens or unclear ownership chains.
• Vacant Land: Boundary disputes or past claims on the property are common with undeveloped land.

Choosing the Right Title Insurance Provider

Not all title insurance providers are created equal. When selecting a policy, work with a trusted attorney or title company to ensure the coverage is comprehensive and tailored to your property. At Edwards Law, we guide homeowners through every step of the real estate process, including reviewing title policies to ensure your investment is fully protected.

We’re Here to Help

Althought title insurance may not be the most glamorous part of buying a home, it’s one of the most important. By protecting you from unforeseen title issues, it provides financial security and peace of mind, allowing you to fully enjoy your new property. At Edwards Law, we’re here to help you navigate the complexities of real estate transactions and safeguard your investment.

If you have questions about title insurance or need assistance with your home purchase, contact us today and let us help you protect what matters most!

by Barry

Georgia’s Amendment on Foreign Land Ownership and How It Impacts Foreign Real Estate Investment

For foreign investors interested in acquiring real estate in Georgia, understanding local laws is crucial to avoiding costly pitfalls. One of the most significant pieces of legislation impacting foreign real estate investment in the state is O.C.G.A. § 2-1-7. This law imposes restrictions on foreign nationals and entities acquiring certain types of land, particularly agricultural land and property near military bases.

Whether you’re a real estate investor, a foreign corporation, or an individual looking to invest in Georgia, it’s important to be aware of the provisions under this law to ensure compliance and protect your investment. In this post, we’ll explain the key aspects of O.C.G.A. § 2-1-7, how it affects foreign investors, and provide practical advice on how to navigate these restrictions.

Key Provisions of O.C.G.A. § 2-1-7

The Georgia law O.C.G.A. § 2-1-7 places specific restrictions on nonresident aliens and certain foreign entities seeking to acquire land in the state. The key points include:

Restricted Land Types: Nonresident aliens are prohibited from acquiring an interest in:

• Agricultural land: Land that can be used for farming, timber production, and similar activities.
• Land within a ten-mile radius of a military base: This includes military installations and military airports within the state.

Who Is a Nonresident Alien?: A nonresident alien is defined as:

• An individual who is not a U.S. citizen or legal resident and has been physically absent from the U.S. or Georgia for extended periods.
• A corporation or business entity domiciled in a foreign country designated as a foreign adversary by the U.S. Secretary of Commerce (this currently includes countries such as China, Russia, Iran, North Korea, and Venezuela).

Exemptions and Special Situations

Under certain circumstances, a nonresident alien may acquire a possessory interest in the restricted lands, but the law requires that these interests be disposed of within a set time:

• Security for Indebtedness: A nonresident alien can acquire agricultural or restricted land if it is part of a debt enforcement process (e.g., foreclosure or lien enforcement), but the land must be sold within two years.
• Inheritance: If a nonresident alien acquires the land through inheritance or a will, they have one year to dispose of the property.
• Termination of Nonresident Alien Status: If the individual or entity’s nonresident alien status changes, the restriction on ownership may be lifted.

It’s important to note that these restrictions do not apply to residential property, meaning foreign investors can purchase houses, residential buildings, or land intended for residential use without facing these limitations.

How Does This Affect Foreign Real Estate Investors?

For foreign real estate investors, particularly those looking to invest in agricultural land or properties near military installations, O.C.G.A. § 2-1-7 presents a significant barrier. Failing to comply with the law can lead to voided transactions, resulting in the loss of the property and the investment.

1. Agricultural Land Investment: If you’re interested in purchasing agricultural land for farming, timber production, or other commercial purposes, this law will require careful planning. Nonresident aliens are restricted from holding these types of property unless acquired under specific exemptions, and even then, the ownership must be temporary.
2. Land Near Military Bases: Investors looking to acquire land near military installations must be aware of the 10-mile restriction radius. This is particularly relevant for those interested in property development or large-scale land acquisitions near Georgia’s many military sites.

Planning Your Real Estate Investment Strategy

Foreign investors can still invest in Georgia real estate, but it’s crucial to plan your purchases carefully to avoid running afoul of O.C.G.A. § 2-1-7. Here are some practical steps you can take:

1. Know Your Land Type: Before making any purchase, verify whether the land is considered agricultural or falls within the restricted zone near a military base. Work with a real estate attorney to assess the zoning status of the land and ensure it complies with local laws.
2. Understand Your Status: If you or your business is considered a nonresident alien under Georgia law, be sure to understand the limitations on acquiring land. Pay special attention to the countries currently designated as foreign adversaries by the U.S. Secretary of Commerce, as this will impact your ability to own land in Georgia.
3. Explore Exemptions: If you find yourself acquiring restricted land due to foreclosure or inheritance, understand the deadlines for selling the property and plan accordingly. This can help you avoid losing the investment.
4. Focus on Residential Properties: Since O.C.G.A. § 2-1-7 does not apply to residential properties, foreign investors can confidently explore opportunities in Georgia’s residential real estate market, including single-family homes, condos, and apartment buildings. This may be a better route for long-term investments without the risk of restricted land ownership.

Conclusion

While O.C.G.A. § 2-1-7 restricts foreign ownership of certain types of land in Georgia, it doesn’t mean foreign investors are barred from real estate investment altogether. By focusing on residential properties, understanding the type of land you’re purchasing, and working with a real estate attorney, you can navigate these restrictions and make informed investment decisions.

At Edwards Law, we specialize in helping foreign investors navigate Georgia’s real estate laws. Contact us today to schedule a consultation and let us help you make the most of your real estate investments in Georgia.

by Barry

Reviewing Your Estate Plan after the Death of a Loved One

The death of a loved one is never easy. Regardless of your relationship with the deceased (for example, a relative, significant other, or close friend), you need space and time to process and grieve your loss. Once you have had time to cope with all that has happened, you should consider updating your estate plan in light of your loved one’s death. 

Although your estate plan primarily focuses on what will happen if you become incapacitated (unable to make or communicate your wishes) or die, the death of a loved one can have a significant impact on your planning. If you have an estate plan, one of the first things you need to do when a loved one dies is to review the documents with the following questions in mind:

Was your deceased loved one named as a beneficiary of money or property under your will or revocable living trust? If so, do your documents address what happens to that money or property should your loved one predecease you?

One of the main objectives of establishing a will or revocable living trust is to create a plan for what will happen to the things you own at your death. If you have strong feelings about who should receive your money and property, you must name who will inherit from you and also who will inherit the money and property if your first choice dies before you. 

If your will or trust does not list a contingent (backup) beneficiary, the gift in question is canceled when the first-choice beneficiary passes away, and the accounts and property you wanted to leave to your now-deceased loved one become part of your general estate and will be distributed according to the remaining terms of your will or trust. This cancellation can be problematic if your beneficiary has a spouse, children, grandchildren, or other loved ones whom you would have wanted to receive the beneficiary’s inheritance instead.

Some states have enacted antilapse laws to protect against this result. In these jurisdictions, the beneficiary’s heirs will receive the gifts. There are a few caveats and distinctions from jurisdiction to jurisdiction. For example, some states limit the heirs who can benefit from antilapse laws to blood relatives.

Is a trusted decision-maker now deceased?

As part of your comprehensive estate plan, you likely selected several different important decision-makers to act on your behalf if you become incapacitated (agents under your financial and medical powers of attorney and a successor trustee) or to wind up your affairs after your death (a successor trustee, personal representative, or executor). If your deceased loved one held any of these positions, make sure a backup was nominated. If not, you need to update the affected document to include a new first choice and at least one alternate. If you have already named a backup in the document, you will want to update your document to name your backup as your new first choice and remove your deceased loved one’s name to prevent confusion when a third party reviews the document.

Personal representative (also known as an executor). This trusted individual, appointed in your last will and testament, is responsible for collecting all your accounts and property, paying your outstanding debts and taxes, and distributing your money and property to your named beneficiaries after your death. This person’s task is to wind up your affairs, which can be time-consuming. If your chosen personal representative dies before you and there is no named backup at the time of your death, the probate court will use your state’s laws to determine who is next in line to serve as personal representative. 

Co-trustee or successor trustee of your trust. Serving either with you (as co-trustee) or after you become incapacitated or die (as successor trustee), this trusted person or entity is charged with managing, investing, and distributing the money and property from your trust to you during your lifetime (if you are incapacitated or are otherwise unable to act as trustee) and to your chosen beneficiaries after your death. 

If your deceased loved one was a co-trustee with you, you should review your trust agreement to see what happens next. There may be a provision that either allows you to continue serving as the only trustee, names a specific person to step in and serve with you as co-trustee, or describes how to determine who your new co-trustee will be. 

If your deceased loved one was named as your successor trustee, nothing noticeable will happen with respect to how your trust is managed right now. However, if you become incapacitated or die and there is no successor trustee, your loved ones must look to your trust agreement for guidance on filling the vacancy. Your trust may provide that a certain number of your beneficiaries can appoint a new trustee without court involvement, or your trust might require that the court approve any new trustee. The outcome will depend on the trust’s wording and your state’s laws. Because your trust is revocable and amendable during your lifetime, it is best to update your trust to appoint a new successor trustee or change any of these provisions as needed while you still have the ability to do so.

Agent under a financial power of attorney. Your agent is an individual you choose to manage your property and finances (such as communicating with your mortgage company, paying your bills, or accessing funds in your bank account for your care) on your behalf. If the person you selected is deceased and there is no named backup, no one else can act on your behalf when needed. If you become unable to manage your property and finances without appointing an agent in a financial power of attorney, your loved ones will have to go to court and have someone appointed by a judge to take care of your financial and property matters. The judge will make this determination based on state law, which prioritizes a spouse or blood relative serving in this role, and the person selected may not be the person you would have chosen. Not only is this process time-consuming during a stressful time, but it can be expensive and exposes the details of your condition and family dynamics to the public.

Agent under an advance directive for healthcare. Your agent under your advance directive for healthcare is typically authorized to make decisions or communicate your medical wishes in the event you are unable to do so yourself. Because this person can act only when you cannot, you may not feel an immediate need to update your advance directive for healthcare if your chosen agent has passed away. However, if you have an accident, become incapacitated, or are otherwise unable to communicate your medical wishes and you do not have an agent who can act for you, your loved ones must go to court to have a guardian appointed before anyone can speak on your behalf. The judge will look to the standards and guidelines provided under state law to aid them in appointing the appropriate person, who may not be the person you would have chosen to make your decisions. Second, the selected person may not know your wishes about the medical care you want to receive. 

Guardian for your minor child. You have likely invested a lot of time and consideration in deciding who you would like to serve as the guardian of your minor children if you and the children’s other parent are unable to care for them. If the loved one you have selected has passed away, it is imperative that you update this selection. While your circumstances may vary, if your chosen guardian is unable to serve for any reason, and you have no alternate guardian nominated, the probate court will determine who will raise your child. As with other roles, the selected person may not be the one you would have chosen, and absent input from you, the judge may have limited information when making this critical decision.

We Are Here to Help

We understand that you are grieving the loss of a loved one. When you are ready, we are here to help you take the next step in your estate planning journey, whether you are starting, completing, or updating your estate plan. Contact us today to schedule your in-person or virtual appointment.

by Barry

Four Tips for Every New Homeowner

Congratulations on the purchase of your new home! Whether this is your first home or you are upgrading or downsizing from your current home, the purchase of a home is a big event in your life. When major life events occur, it is important that you have a plan in place to ensure that you are properly prepared for the future. Below are a few things to consider now that you finally have the keys to your new home.

1. Update Your Address

Now that you are in your new home, it is very important that you update your address with the appropriate entities. Your local United States Postal Office has a form you can fill out. If you cannot make it into the post office, you can also update this information on their website. This will assist them in forwarding your mail to you. 

To ensure that you do not miss any important tax notices or refunds, you will also want to update your address information with the Internal Revenue Service using Form 8822, as well as with your local state tax agency.

2. Make Sure That Your House Title Coordinates with Your Estate Plan

While it is still fresh in your mind, take a look at your new deed to determine how your new home is titled. Ideally, you had a discussion with an estate planning professional prior to purchasing the new property to determine how you would like to own your new property, whether in your name individually, jointly with a spouse, or in the name of your trust. It is important to review your current estate plan after the purchase of the home to ensure that it aligns with your estate planning goals.

For example, if your plan had a specific instruction to give your prior property to someone, and the instruction references the address of your prior home, you will want to ensure that you update this provision once you no longer own the previous property to avoid confusion down the line. On the other hand, if this is your first home and your estate plan includes a trust to avoid probate, you will need to ensure that your home is titled in the name of the trust and not in your name individually. Alternatively, you could have a transfer-on-death (TOD) deed prepared to add the trust as a beneficiary to the home. Additionally, if you would ultimately like your property to be distributed to a specific individual or held in trust for the benefit of your loved ones (for example, your minor children), you will want to ensure that provisions are added to accomplish this.

3. Check Your Life Insurance Coverage and Beneficiary Designations

Unless you were fortunate enough to pay cash for your new home, chances are you now have a monthly mortgage expense. In order to protect your loved ones, it would be prudent to prepare for the possibility of dying before you pay off your mortgage. You may want to consider whether you have enough life insurance to pay off the balance of the mortgage. This is especially important if you have a surviving spouse or children who will likely continue to reside in the home to ensure that they have sufficient funds to alleviate one of the largest monthly expenses they will probably have. Life insurance can provide valuable funds during what is usually an emotionally—and sometimes financially—difficult time.

When you buy a new home, it is a great opportunity to double check your beneficiary designations. Life changes happen so quickly that sometimes updating beneficiary designations can be overlooked. If your designations do not align with the rest of your estate plan, you may end up inadvertently disinheriting a family member, having a large sum of money fall directly into the hands of an individual (for example, a young adult or minor child) without any guidelines, or having your hard-earned money and property go to someone you no longer want to benefit from your life insurance.

Lastly, now that you have a home and homeowner’s insurance, call your insurance agent to make sure that you are getting all of the discounts to which you are entitled. Many insurance companies will offer discounts when you bundle services. If you already have car insurance through a carrier and use the same company for your homeowner’s insurance, you may be entitled to a better rate than if you obtained the policies at separate carriers. In addition, homeowners often get discounts that renters do not.

4. File for the Homestead Exemption

As a new homeowner, one of the best ways to reduce your property taxes is to file for a homestead exemption in the county where your home is located. The homestead exemption offers a significant property tax break for homeowners who occupy their home as their primary residence. It’s a simple process that can save you money every year!

To file for the exemption, you’ll need to visit your county’s tax assessor’s office or tax commissioner’s office or apply online, depending on your county. Generally, you’ll need to provide proof of residency, such as your driver’s license and a copy of your deed. Most counties require that you file by April 1st of the year after you purchase your home, so don’t wait too long. Once granted, the exemption renews automatically as long as the property remains your primary residence.

This small step can make a big difference in your property tax bill—so make it a priority after settling into your new home!

We Are Here to Help

Buying a new home is a big step, and we are here to help you plan to protect both your loved ones and your new investment. Give us a call so we can help ensure that your new purchase and your estate plan are working together to accomplish your goals. Contact us today to schedule your in-person or virtual appointment.

by Barry

Condo Association CCRs and Leasing Restrictions: What Real Estate Investors Need to Know

When considering the purchase of a condo as a long-term investment, one of the most important factors you need to understand is the condo association’s declaration of covenants, conditions, and restrictions (CCRs). These are the rules that govern how you can use your condo, and they can have a significant impact on your investment strategy—especially if you plan to lease the unit. Leasing restrictions outlined in the CCRs can determine whether or not you’ll be able to rent out your condo, and they can even affect the condo’s eligibility for Fannie Mae loans.

In this post, we’ll break down what CCRs are, how leasing restrictions work, and what real estate investors should be aware of to avoid buying a condo they can’t lease.

What Are CCRs?

Covenants, conditions, and restrictions (CCRs) are the rules established by the condo association that govern what owners can and cannot do with their property. When you purchase a condo, you automatically become part of the condo association, which means you agree to abide by the CCRs. These rules are designed to maintain the appearance, value, and quality of life within the community, and they can cover a wide range of topics, such as:

• Rules for common areas (pools, parking lots, gyms, etc.)
• Exterior changes or renovations to individual units
• Pet policies
• Noise restrictions
• Leasing restrictions

While some CCRs may seem straightforward, others—like leasing restrictions—can have a serious impact on your ability to use your condo as a rental property.

Understanding Leasing Restrictions

Leasing restrictions in condo CCRs are rules that limit the ability of owners to rent out their units. These rules are becoming more common as condo associations aim to maintain a balance between owner-occupied and rental units within the community. The idea is that a higher proportion of owner-occupied units tends to enhance the stability and overall quality of life in the condo development.

Here are some common leasing restrictions you might encounter:

Waiting Periods: There may be rules that require new owners to wait a certain period—such as one or two years—before they are allowed to lease their units.

Minimum Leasing Periods: Some condo associations require that units be leased for a minimum period, such as six months or a year. This prevents owners from renting their units on a short-term basis, such as through Airbnb or similar platforms.

Rental Caps: A rental cap limits the percentage of units in the building that can be leased at any given time. For example, the condo association may restrict leasing to no more than 25% of the total units. Once that cap is reached, owners who want to lease their unit will have to wait until other units come off the rental market.

Lease Approval Requirements: Some associations require that leases be submitted for approval by the board before tenants can move in. This adds an extra step to the process and can delay finding renters.

Fannie Mae Loan Eligibility and Leasing Restrictions

If you plan to finance your condo purchase with a loan backed by Fannie Mae, it’s important to understand how leasing restrictions can affect the condo’s loan eligibility. Fannie Mae has specific requirements for condo projects that are eligible for its loans, particularly when it comes to the percentage of owner-occupied units versus rented units.

For a condo project to qualify for Fannie Mae financing, typically at least 51% of the units must be owner-occupied. If leasing restrictions cause the number of rental units to increase beyond that limit, Fannie Mae may refuse to back loans for units in the building. This can limit your ability to get a mortgage and can also affect the resale value of the condo in the future.

Pitfalls to Avoid for Real Estate Investors

For real estate investors, purchasing a condo that you intend to lease without thoroughly understanding the CCRs and leasing restrictions can lead to significant issues. Here’s what you should do to avoid pitfalls:

Consult with an Attorney: Working with a real estate attorney, like those at Edwards Law, can help ensure you fully understand the implications of the CCRs and protect your investment.

Read the CCRs Carefully: Before making an offer on a condo, make sure to request a copy of the association’s CCRs and review them thoroughly. Pay special attention to any sections on leasing restrictions.

Ask About the Current Rental Cap: If the condo association has a rental cap in place, find out what percentage of units are currently being rented. If the cap has been reached, you may not be able to lease your unit immediately after purchase.

Check the Fannie Mae Eligibility: Ensure that the condo development meets Fannie Mae’s owner-occupancy requirements if you plan to finance your purchase with a loan backed by Fannie Mae.

Investing in a condo can be a smart long-term strategy, but it’s essential to know the rules set by the condo association before you buy. Leasing restrictions in the CCRs can significantly impact your ability to rent the unit and even affect your financing options. At Edwards Law, we’re here to help real estate investors navigate the complexities of condo purchases and ensure your investment is protected. Contact us today for a consultation and let us guide you through the process.