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Don’t DIY your LLC

Simple structure can backfire if you’re engaged in real business

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Limited Liability, gay news, Washington Blade

There are many rules and traps for the unwary in LLC, so if you do something wrong, you may not have that liability protection just when you need it most.

Over the last 20 years, limited liability companies have become the preferred way of doing business for many small and medium-size enterprises. That is primarily due to the fact that LLCs are easier to form than corporations. Unfortunately, that simplicity lulls many people into trying to do it themselves or working with forms provided online. Sure, if your LLC is only going to operate a kid’s lemonade stand for a couple of months over the summer, that might be good enough. But for most people engaged in real businesses with significant risks, it’s not.

A little background may help to explain what I mean. LLCs, like corporations, are mechanisms for sheltering the people that run those businesses from being personally liable for their activities, especially if things go badly. Thoughtful people may ask: why is that? Why shouldn’t you be personally liable for your own actions? The answer is that states have encouraged people to start and run businesses as an engine of growth, but many people are reluctant to expose themselves to personal liability. The catch is that there are many rules and traps for the unwary, so if you do something wrong, you may not have that liability protection just when you need it most. Earlier in my career, I represented many business creditors that were always looking for ways to “pierce that shield” and get through to the owners of businesses for their debts. Here are a few of the basics that you should know to avoid that fate.

LLCs need to have Operating Agreements. Operating Agreements take the place of bylaws and shareholders agreements for corporations. If you’re starting a business by yourself (commonly referred to as a “single-member LLC”), then a streamlined Operating Agreement may be sufficient. If more than one person is involved, it’s not just twice as complicated, it’s a least five times as complicated and the Operating Agreement will be much more complex. It will need to cover things such as how much of the business each person owns, how are profits or losses divided and who gets to vote on what. I’m always surprised by the number of business owners who are involved in significant enterprises that do not have Operating Agreements.

Capital contribution. Is the amount of money that you are investing in your new business adequate for the risks that are going to be assumed? Many people form their LLCs and show little or no investment of personal funds. However, if you’re going to be signing a lease, buying inventory, hiring employees or signing contracts, there needs to be a financial cushion that is proportionate to those liabilities. If there isn’t, your creditors will have little trouble getting to you personally.

Evidence of ownership. Corporations issue stock. LLCs issue membership interests. They are quite similar – written certificates identifying your ownership of all or a portion of the LLC. Come the day that you might want to sell an interest in your business or even the entire business, having membership certificates will be crucial. A business that I represented a few years ago never issued certificates. When we went to sell the business, there was nothing to transfer to the new owners. We had to go back and document all the changes in ownership over a period of 10 years and issue certificates to cover them—just for the purpose of being able to sell the business.

Timely filings with the state in which the LLC was formed. Maryland and Virginia require annual filings. In the District, it’s every two years. If you fail to make this filing and to pay the required fee, then your LLC’s charter will be revoked and your LLC will be gone. You would be wrong if you think this is uncommon. Each state in which I practice revokes thousands of charters every year. It’s why we monitor our clients’ filings closely to avoid revocation.

As complicated as some of this sounds, I have only scratched the surface of these issues in the confines of this article. Please feel free to contact me if you need more specific guidance on any of these topics.

(This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.)

Larry Jacobs has represented many businesses, both large and small. He has also helped hundreds of same-sex couples and LGBT singles in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 42 years. He is admitted to the bar in Maryland, Virginia and the District of Columbia. Learn more at PartnerPlanning.com.

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Real Estate

How to protect yourself from rental scams

Beware of fraudulent checks, identity theft

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Scams can affect both tenants and landlords during summer rental season.

As the summer rental season ramps up, be aware that scams can affect both tenants and landlords. As a property owner looking to rent out your space, you might encounter various fraudulent schemes when advertising your property online. Understanding these scams and recognizing the red flags can save you stress and even financial loss.

Three of the most common scams that landlords face in the District of Columbia include the following:

1. Fake Payment Scams

Tenants provide fraudulent checks or money orders for rent or security deposits. These payments appear legitimate initially, but eventually bounce or are identified as fake.

Why it works: Scammers take advantage of the delay between the initial deposit and the time it takes for banks to identify fraudulent checks, allowing them to secure access to the property.  Once they do, they have possession and in the District of Columbia, that means a court case to remove them.

Prevention Steps:

  • Verify Funds: Wait for the check or money order to fully clear before handing over keys or signing the lease. This can take several days.
  • Use Electronic Payments: Encourage tenants to use electronic payment methods like bank transfers or verified payment apps, which can be more secure and quicker to verify.
  • Bank Verification: Contact the issuing bank to verify the authenticity of the payment instrument.

2. Identity Theft Scams

Prospective tenants use stolen or fake identities to pass background and credit checks. Once they secure the lease, they may engage in illegal activities or fail to pay rent.

Why it works: Scammers exploit the reliance on documentation and credit reports which, if fake, can be difficult to verify without thorough checks.

Prevention Steps:

  • Thorough Screening: Conduct comprehensive background checks, including employment and previous rental history. 

As a self-managing landlord, this can be both time-consuming and complicated.  There are several easy ways to get caught in unlawful methods of screening based on the Districts strict tenant laws.  When in doubt to get it legally right, seek out professional help, so you do not inadvertently end up violating regulations in place to protect renters.

  • In-Person Meetings: Meet prospective tenants in person and request multiple forms of identification to verify their identity. Again, it’s critical to do this within the boundaries of the law. Make sure if you do it for one, do the same process, have the same questions and take the same actions for all interested parties. 
  • Cross-Check Information: Contact employers and previous landlords directly using publicly available contact information to confirm details provided by the tenant. Make sure you are indeed speaking to their prior or current landlord by preparing very specific questions about their lease agreement or other items a fake reference will not know or will stumble to answer. 

3. Subletting Scams

Tenants illegally sublet the property to others, often at a higher rate, without the landlord’s knowledge or permission. This can lead to over-occupancy and property damage. You may also not know who is living in your unit or if they would have qualified if you had screened them.  Lastly, if they have possession of your property, getting them out involves a court case. 

Why it works: Scammers take advantage of landlords who do not monitor their properties closely, allowing them to profit from unauthorized subletting.

Prevention Steps:

  • Find management: Ensure that preventative steps are taken, to ensure renter compliance with any sub-letting rules you’ve laid down in the original agreement.
  • Regular Inspections: Conduct regular property inspections to ensure that only authorized tenants are residing in the property. Inspections in the District are tricky, a landlord cannot just enter at will or too frequently.  Be sure you know the rules, or ask a professional for advice before you enter your renter-occupied property.
  • Lease Clauses: Include clear clauses in the lease agreement that prohibit subletting without written permission from the landlord. Is your agreement rock solid? Or do you need professionals on your side who know what to do to ensure both you and your renters are protected fairly?
  • Neighborhood Watch: Establish good communication with neighbors who can alert you to any suspicious activity or unauthorized occupants.  If you used to live at that location your former neighbors and friends are the best way to keep eyes and ears out on what is going on in your property and to alert you to any unusual behaviors.

By taking these preventive measures, landlords can better protect themselves from common scams and ensure a more secure rental process.

Anatomy of a Common Rental Scam

Another prevalent scam starts when you post an advertisement for your rental property. Scammers may copy your listing, post it at a lower price, and pretend they are the landlords. Unsuspecting tenants may pay a deposit to them or even the first month’s rent to these fraudsters, believing they are securing their new home. Here’s how the scam typically unfolds:

Step 1: Scammers take the details and photos from your legitimate listing and create a fake one, often with lower rent to attract more potential tenants.

Step 2: They claim to be out of town and unable to show the property, urging potential tenants to drive by and view the property from the outside.

Step 3: They ask for a security deposit or the first month’s rent via online payment methods before the tenant has signed a lease or even seen the inside of the property.

How to Protect Yourself

Here are some steps you can take to protect yourself from these scams:

Secure Your Listing: Use reputable rental platforms and websites known for their security measures to advertise your property.

Watermark Your Photos: Adding a watermark to the images in your rental listings can prevent scammers from easily stealing your photos.

Educate Potential Tenants: Inform applicants about common scams and encourage them to be cautious of listings that seem too good to be true, ask for money up front, etc.

Meet or Video Call Potential Tenants: If possible, meet tenants in person or through a video call to verify their identity and discuss the rental terms. Requiring a matching photo ID during the application process is an added layer to ensure this is the same person.

Verify Tenant Information: Conduct a comprehensive background check, including credit, employment, rental history, and criminal records.

Red Flags for Landlords

To protect yourself and potential tenants from a scam like this, be aware of the following red flags during the tenant screening process:

  • Paying All Cash Upfront: If a prospective tenant offers to pay the rent for the entire lease period in cash without a proper background check, be cautious. This can be a sign that they want to avoid detection due to illegal activities or poor credit history.
  • Urgency to Move In: A tenant who is pushing to move in immediately, especially without seeing the property, should raise a red flag. They might be trying to rush the process before you notice any inconsistencies in their story or background.
  • Lack of Interest in Viewing the Property: Be wary of tenants who do not ask to see the property or who are satisfied with just external views. Genuine tenants will usually want to inspect where they are going to live.
  • Poor or Incomplete Documentation: If a tenant cannot provide proper identification, proof of income, or previous rental history, this is a significant warning sign. Scammers often avoid giving out personal information that can be traced back to them.
  • Unusual Payment Methods: Be cautious if a tenant wants to use unconventional payment methods like wire transfers or cryptocurrency. Standard practices include checks, bank transfers, or credit card payments, which offer more security and traceability.

Organizations That Can Help

If you find yourself a victim of a rental scam, there are organizations that can offer assistance and guidance:

Federal Trade Commission (FTC): They handle complaints about deceptive and unfair business practices, including rental scams. You can file a complaint at ftc.gov.

Better Business Bureau (BBB): The BBB provides information on businesses, including complaints and scam alerts. Visit their website at bbb.org for more resources.

Internet Crime Complaint Center (IC3): This is a partnership between the FBI and the National White Collar Crime Center, and it allows victims to report internet-related criminal complaints. Visit their site at ic3.gov.

Local Law Enforcement: Contact your local police department to report the scam, especially if money has been exchanged.

By staying vigilant and informed, you can protect yourself and potential tenants from falling prey to these sophisticated scams. Remember, prevention is always better than cure, especially in the real estate market.

(Note: For examples of the three scams included, we have produced some of the content of this article using AI.)

Scott Bloom is owner and senior property manager of Columbia Property Management. For more information and resources, go to ColumbiaPM.com.

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Real Estate

A look at down payment assistance programs

Pride in ourselves, Pride in homeownership

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(Photo by GaJaS/Bigstock)

One of the most popular questions at our home buyer seminars is “What are the down payment assistance or first-time homebuyer programs available where I live?”  There are various programs sponsored by multiple jurisdictions with the help of local banks, federal grants and loans as well. Knowledgeable lenders in the area will direct their eligible borrowers to these programs when a home purchase is being considered. Some of the programs are frequently mentioned in the local news: HPAP, EAHP, and DC Open Doors. There are also other options such as:

• FHLB grant for down payment assistance and/or closing costs

• Bank portfolio loans such as the Sandy Spring Bank loan, which can be 3% of the home purchase price – paired with a 97% first trust loan which is 100% financing at market rates

• Citibank Home Run

• Bank of America Down Payment Grant or Home Grant

• Chase Dream Maker Grant

• DC Open Doors – (DC Purchases only)

• HPAP/EAHP (for DC purchases only, when funds are available.)

All of these programs, grants, and loans come with guidelines and regulations, which may include income limits, household size limitations, geographic boundaries, homebuyer education classes, occupying the home as a primary residence, and funds availability. Some are easier to use and implement than others. Others may be available but can take 60 or more days to close on a home purchase, where another buyer may offer a seller a 30-day close. Some of these options may be stacked together to help build the buyer’s purchasing power.  

In many cases they are worth exploring, and “seeing if the shoe fits.” A knowledgeable lender will be able to help a prospective home buyer to “try on these shoes” and see if there is a good fit. The best local Realtors and lenders will help a buyer understand which can be used at the time of purchase, and what types of documentation are necessary for each instance.  

In our experience, the programs are there for those who need it, and in many cases make the difference between what a buyer has available to bring to the table, and what they need to get the “Sold” sign put out on the lawn, and the keys in their hand. Some buyers may decide to investigate these options and go without the program or the available funds anyway.  Perhaps the interest rate is higher when using a program as opposed to going without it, meaning the monthly payment will be more when you use these programs.  Each buyer has their own criteria of what makes a good fit for them.  As with anything, “Mama said you gotta shop around.”  It’s worth considering the various down payment & first time homebuyer assistance options available when looking to purchase and deciding which option(s) provide the best fit.  

Don’t hesitate to reach out for more information.

Joseph Hudson is a referral agent with Metro Referrals. Reach him at [email protected] or 703-587-0597. Tina Del Casale is a mortgage banker at Sandy Spring Bank. Reach her at 301-850-1326.

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Real Estate

Totally radical home buying

We should celebrate advancement of homeownership rights

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The phrase “totally radical” came of age in the 1980s and was defined as cool, wonderful, or awesome. Its synonym, wicked, can be found in nearly all Ben Affleck movies and a cry of “Excellent!” will bring back memories of an adventure had by Bill (Alex Winter) and Ted (Keanu Reeves) in 1989.

Although some people are not ready for cocooning yet, homeownership is still a cornerstone of financial strength and wealth building. For LGBTQ individuals, owning a home can provide a sense of economic security and a sanctuary where they can express their personalities freely and without fear of discrimination or harassment. 

Whether house, condominium, or cooperative apartment, owning a place to chill allows you to build a legacy and provide for future generations. It offers the stability needed to plan for the future, whether that involves raising a family, supporting aging parents, or ensuring a spouse’s or partner’s financial security.

Homeowners are also more likely to invest in their communities, fostering strong, inclusive, bitchin’ neighborhoods. For many LGBTQ people, a home is “In the District,” which prides itself on diversity. Homeownership allows individuals to create personal spaces that reflect their identities and values, contribute to the city’s rich cultural tapestry, support local businesses, and participate in community events and governance.

The journey toward homeownership for gay individuals has evolved over the years, reflecting broader societal changes and the struggle for LGBTQ rights. The stark contrast between the ’80s and now highlights the progress made, the challenges that still exist, and future uncertainties brought forth by the space cadets in our political system. 

In the 1980s, homeownership for gay people was bogus. The decade was marked by lame, pervasive discrimination and limited legal protections. The HIV/AIDS epidemic further stigmatized the gay community, intensifying societal prejudices. This climate of fear and hostility permeated various aspects of life, including the housing market.

Gay individuals faced overt discrimination from landlords, real estate agents, and mortgage lenders, even in the rental market. It was not uncommon for same-sex couples to be denied housing simply because of their sexual orientation. Even in the late ’90s I had clients looking for homes in Prince William County, Va., who had to hightail it out of an open house when told to take a hike. I kid you not!

Financial institutions were often unwilling to grant mortgages to same-sex couples or openly gay individuals. When they did, the terms were often less favorable than those offered to heterosexual couples. This made the dream of homeownership significantly harder to achieve, even though DINKs (dual income, no kids) tended to have more household income than so-called “traditional” families.

Additionally, the lack of legal recognition for same-sex relationships posed harsh challenges. Without the ability to marry, same-sex couples faced difficulties in co-owning property and ensuring that their partner had legal rights to the home. Estate planning was complicated, as inheritance laws did not recognize same-sex partners, potentially leading to the loss of a home upon a partner’s death.

The landmark Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide, was a fantabulous moment. This ruling provided same-sex couples with the same legal rights as heterosexual couples, including the ability to jointly own property and inherit without complication.

Anti-discrimination laws have also evolved. The definition of sex under the Federal Fair Housing Act has been expanded to include sexual orientation and gender identity, as have protected classes in Maryland and Virginia. The District has taken that a step further; our protected classes also include gender expression and personal appearance. 

Organizations like the DC Center for the LGBT Community and the National Association of Gay and Lesbian Real Estate Professionals (NAGLREP) offer resources and advocacy for LGBTQ+ homebuyers. These organizations provide educational workshops, networking opportunities, and support to navigate the housing market.

The advancement of homeownership rights for gay people is a testament to the righteous resilience and determination of the LGBTQ+ community. As society continues to strive for equality, it is essential to address the remaining challenges to ensure that everyone, regardless of their sexual orientation or gender identity, can achieve the goal of homeownership.

In 2024, the only limitations on owning a home are finding one and being able to afford it. Pride weekend is a great time to go to open houses. You’ll probably be walking right by several. 

But if you’re not ready yet and just feel like getting your ’80s jams on, grab your disco balls and check out the Totally Tubular Festival at The Anthem at The Wharf on July 14.I’ll be Desperately Seeking Susan and will, as they used to say in the ’70s, catch you on the flip flop.

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