Certificate Operating Agreement

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Certificate Operating Agreement Powered By Docstoc
					Business Entities
 Entity Choices
     What are the options?
    INC, PA, CORP, LLC, LTD, LLP, LLLP…
     Business basics.
 Title Issues.
     Who has authority?
     Oops & Underwriting?



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2007 Real Estate Certification
Business Entities




                    Barry B. Ansbacher
                    Ansbacher & McKeel, P.A.
                         Jacksonville, Florida
                         bba@ansbacher.net

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General Trends
 IRS Flexibility in Tax Treatment
 Ease or Merger and Conversion Between
  Entities
 Blending the Distinctions
           Limited Liability for Non-Corporate Entities
           Pass through tax treatment for Corporations.
           Uniform Business Reports
           Intangible Tax Reform



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Ethics First
 Who is your client?

 Joint Representation.

 Improper use of multiple entities in
  real estate “flips”.



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Sole Proprietorship - Basics
 Formation
     No action required other than taking title
      or commencing business.
 Ownership
     Natural Person(s).
 Governance
     Direct by owner(s).



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Corporation - Types
 Florida For Profit.
     “C” Corporation Tax Treatment
     “S” Corporation Tax Treatment
 Professional Service Corporations
 Florida Not For Profit.
 Foreign



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Corporation - Basics
           Florida Business Corporation Act
 Formation
   (Subscription Agreement)
   Articles of Incorporation
   Bylaws
   Organizational Meeting
   Stock Issuance
   (Shareholders’ Agreement)
 Ownership
   Shareholders
 Governance
   Directors
   Officers

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Limited Liability Company – Types
 Florida Limited Liability Company
     Single Member “Disregarded” Entity
 Professional Limited Liability
  Company
 Foreign Limited Liability Company




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Limited Liability Company - Basics
    Florida Limited Liability Company Act
 Formation
     Articles of Organization
     Operating Agreement
     (Certificate Issuance)
 Ownership
     Members
 Governance
     Members or
     Manager(s) or
     Managing Members.


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Partnership - Types
 General Partnerships & Joint Ventures
     Registered Limited Partnership
     Limited Liability Partnership – “LLP”
 Limited Partnerships – “Ltd.”
     Limited Liability Limited Partnerships –
      “LLLP”
 Foreign Partnerships


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General Partnership - Basics
   Florida Revised Uniform Partnership Act of 1995
 Formation
   Verbal or Written Agreement.
   Automatic When 2 Persons Carry on Business as Co-
     Owners. Excludes joint ownership of realty.
   No filing or registration unless
             Registering to be a Registered General Partnership,
             Registering to be a Limited Liability Partnership.
 Ownership
   Partners
 Governance
   Partners


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Limited Partnership - Basics
  Florida Revised Uniform Limited Partnership
                   Act of 2005
                 (2005-267 Laws of Florida)
 Formation
     Certificate of Limited Partnership
     Limited Partnership Agreement
     If LLLP, Also Register General Partner as an LLP
 Ownership
     Partners
 Governance
     General Partner(s)
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Entity Selection

 Operating Business
     “S” Corporation


 Real Estate Holding Vehicle
     “LLP” – Limited Liability Partnership
     No Entity


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Title Issues - Corporations
Deed prior to incorporation.

     Generally not valid. UTS. 3.1

     Ability to “back date” Incorporation.

     If deed signed, but not delivered and
      recorded until after incorporation cure by
      affidavit.

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Title Issues - Corporations
Conveyances From Corporation
      Seal doesn’t have to be a Seal.
      Witnesses not required for deed under
       seal when signed by President, Vice-
       President or Chief Executive Officer.
      Attestation not required.
      Conveyance without seal okay, but
       witnesses required.
      Witnesses never required for mortgages.
      Corp. Acting on Behalf of Another.
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Title Issues - Corporations
Foreign Corporation Not Registered to
do Business in Florida

      Deed still valid.
      Foreign Entity must still have legal
       existence in its home state or if
       dissolved conveyance must be in
       accordance with laws of home state.


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Title Issues - Corporations
Conveyances By Dissolved Corporation
      Prior to January 1, 1976 – Majority of
       surviving directors as trustees.
      January 1, 1976 through June 19,
       1976 All surviving directors as trustees
      June 20, 1976 though June 30 1990
       – Same as prior to January 1, 1976
      After June 30, 1990 – Continued
       existence for winding up.

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Title Issues - Partnership
Partners or Partnership?
     Always review partnership agreement.
     Limitations of authority if recorded for a
      registered general partnership. 620.8303
     UPA vs. RUPA
             All Florida Partnerships now subject to
              RUPA.
             Convey into ABC Partnership or X and Y as
              partners of ABC Partnership.


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