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Real Estate Investors: Update on Bill Allowing Single Member LLCs To Evict Tenants without Legal Representation

 

A common scenario in my legal practice:2015-11-26-13-04-02

Investor purchases property in an LLC. Investor locates a tenant. Tenant falls behind in rent. Investor hires attorney to evict Tenant.

Why hold real estate in an LLC?

Most of my investor clients own investment real estate in a Limited Liability Company.

This is for liability protection.

 

Once a limited liability company comes into existence, limited liability applies, and a member or manager is not liable for the acts, debts, or obligations of the company. “Duray Dev., LLC v. Perrin, 288 Mich. App. 143, 151 (2010).

 

Why not hold real estate in an LLC?

Some investment property owners decide not to do so. The primary driving reason from my experience is cost.

Cost associated with setting up the LLC; and

Cost associated with hiring an attorney and evicting non-paying tenants.

Some landlords don’t want to hire an attorney to evict a tenant.

Under current Michigan law, since an LLC is a separate legal person independent of the actual owners of the LLC, unless such owner is a licensed attorney, an owner of an LLC cannot file a lawsuit on behalf of the LLC.

To do so would be the unauthorized practice of law.

You can practice law on your own behalf – just not on behalf of someone else.

Although, the saying goes – he who is his own lawyer has a fool for a client.

 

UPDATE ON PROPOSED House Bill 4463 – Would Allow LLCs to Evict without Legal Representation.

 

House Bill 4463 was introduced in March and referred to the  committee on law and justice.

 

 

The Bill would allow owners of a single-member LLC (or a married couple under certain conditions) to file their own eviction actions on behalf of the LLC without the need for legal representation.

If the Landlord is seeking money damages, the amount, not including taxable costs, must be under the small claims Court maximum.

I commented that I would be surprised if this bill passes, although other states have similar laws.

 

Call me surprised.

The Bill recently came out of the committee on law and justice and a substitute bill was referred for a second reading.
The Major Difference in the Substitute Bill

 

The major revision that came out of the committee affects property managers.

The Bill as introduced would have allowed property managers or agents to represent the LLC under certain circumstances – e.g. – having personal knowledge of the relevant facts related to the Property and tenancy.

That language was removed from the first version of the bill.

Under the substitute bill, Property Managers or other Agents would not be allowed to represent the LLC.

Further, this is a “burden shifting” mechanism in the substitute bill – the law would place the burden on the LLC owner to prove he or she is in compliance with the statute. That makes sense – since the legislature would be creating an exception to the rule – only lawyers practice law.

 

To Hire an Attorney or Not?

As I stated in my last post, this makes sense for Landlords who want quick and cost-effective resolutions. I understand that an Investor who is not making money on a tenant also doesn’t want to expend additional legal fees to evict a Tenant. This is particularly true since the most attorney fees that a Landlord can recover against a residential tenant is limited to the statutory amount (currently $75).

All business owners make this same business decision –

at what point can I handle a legal matter myself and at what point do I pick up the phone and call my lawyer?

 

However, I will refer readers back to the lawyer who has a fool for a client…

 

Questions? Comments?

e-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Warning for Real Estate Investors: Three Northern California Real Estate Investors Convicted of Rigging Bids at Public Foreclosure Auctions

 

There are many pitfalls for real estate investors who purchase dIMG_1513istressed property.

In today’s market, good deals are getting harder to come by. With distressed property becoming a scarce resource and competition ever increasing, some real estate investors have resorted to illegal acts to boost their profit.

Investors should know that the Department of Justice as well as State Agencies are cracking down on fraudulent real estate practices.

Today, the Department of Justice announced that a federal jury convicted three real estate investors for their roles in a conspiracy to rig bids at public real estate foreclosure auctions held in Northern California.

This after a 3-week trial.

You can see the press release here.

Based upon the DOJ’s investigation – this was a large conspiracy “to rig bids to obtain hundreds of properties sold at foreclosure auctions. The conspirators designated the winning bidders to obtain selected properties at the public auctions, and negotiated payoffs among themselves in return for not competing. They then held second, private auctions at or near the courthouse steps where the public auctions were held, awarding the properties to conspirators who submitted the highest bids.”

 

What is particularly striking to me is that including today’s convictions the DOJ report that:

68 individuals have pleaded guilty or been convicted after trial as a result of the department’s ongoing antitrust investigations into bid rigging at public foreclosure auctions in Northern California.

 

Question for Real Estate Investors:

What type of unfair practices, including bid rigging, do you believe is going on in your state? What are you seeing foreclosure sales?

In Michigan the record numbers of foreclosed properties since 2008 has provided a market (albeit one that is slowing down) for flipping and rehabbing residential real estate.

This has also created opportunities for abuse and fraud.  The real estate legal landscape is complex enough, do yourselves a favor – follow the rules.

You don’t want to expose yourself to undue liability.

 

Questions? Comments?

E-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

 

More Updates on Michigan’s Affordable Housing Crisis

Today is a beautiful day in downtown Grand Rapids. The photo below actually from yesterday. There is something about the sun that just puts me in a good mood.

A few days ago I did not have a sunny disposition. I was in court during a landlord/tenant docket. I’ll be honest – it was a depressing scene.  Many of the people in the courtroom were in a sad condition – one lady was visibly intoxicated.IMG_1570

Grand Rapids’ Housing Crisis

This morning I read an article on how the Rental Housing Market Leads to Homelessness in Grand Rapids

Clearly, Grand Rapids, and other parts of the State and Nation have an affordable housing crisis. I have previously offered my own perspective, both as a lawyer representing real estate developers/investors, and as Board Chairman at Mel Trotter Ministries.

A Community Problem – requires Community Collaboration

Recently Mel Trotter Ministries announced that it was partnering with 3:11 Youth Housing and the NAACP to provide housing for homeless males ages 18-24.

This effort could not have happened without collaboration between community stakeholders. It also couldn’t have happened without real estate owners willing to put “purpose above profit”.

There are other examples of social enterprises taking action to address affordable housing. One community partner is Pastor Jim Davis and his company “Purpose Properties

“The mission of Purpose Properties is to “raise enough money from local foundations and philanthropists to buy market-rate and affordable rental properties in the city.”

It will take all community stakeholders to do their part – businesses, churches, government, and non-profits.

The question we should all ask ourselves: Am I working to build a better community?
Legal Updates – Bills and Lawsuits.

 

A few months back I wrote about a Michigan House Bill introduced that would repeal Michigan’s prohibition on rent control. This Bill seemed to be a “gut response” to the affordable housing crisis that we are facing in Michigan and all across the United States.

Other local governments across the U.S. are exploring legislative avenues to address the housing crisis.

A few days ago, Representative Stephanie Chang introduced a few other Bills on Affordable Housing.

On May 31, 2017 House Bill 4686 was introduced that would allow local government  to “adopt an ordinance to limit the rent paid by senior citizens and individuals with a disability to 50% of their household incomes.”

Tie-barred to that Bill was House Bill 4687  which would prohibit local government from enacting, maintaining, or enforcing “an ordinance or resolution that would have the effect of  controlling the amount of rent charged for leasing private resident.”

Representative Chang also spoke on the issue of Affordable Housing at a Detroit Housing Summit a few days ago at the University of Detroit Mercy School of Law.

 

DOJ sues City of Jacksonville for refusing to allow development of permanent supportive housing for individuals with disabilities.

You can check out the press release from yesterday – Where Cities Can Get in Trouble with Fair Housing Laws

Yesterday, the Department of Justice issued a Press Release concerning an agreement it reached with the City of Jacksonville, Florida. Apparently, the DOJ sued the City concerning “allegations that the city violated the Fair Housing Act and the Americans with Disabilities Act when it refused to all ow the development of permanent supportive housing for individuals with disabilities in its Springfield neighborhood.”

As part of the settlement, the City has agreed to “establish a $1.5 million grant to develop permanent supportive housing in the city for people with disabilities.”

 

e-mail: Jeshua@dwlawpc.com

Twitter: @JeshuaTLauka

 

 

News for Residential Real Estate Investors: DOJ receives Verdict against Landlord Disability Discrimination.

img_1417Here’s a profound truth those in the real estate industry will readily acknowledge:

Owning and Managing Real Estate is uniquely challenging.

I hear it from my Property Owner/Manager clients. I experience it when I am involved in negotiating in landlord/tenant disputes.

I believe that is why, at least in West Michigan, there is an opportunity for good property management companies – and a handful of companies I work with locally do it really well.

 

Some of the pitfalls property owners/managers have to watch out for are illustrated in a recent press release announce by the Department of Justice.

Yesterday the Department of Justice announced that it obtained a verdict in a disability discrimination case against a Landlord

 

 

According to the press release,

The lawsuit, filed in U.S. District Court in Butte, alleged that Jaclyn Katz, the owner and manager of rental properties in Bozeman, discriminated against Kristen Newman, a tenant with physical and psychiatric disabilities, by charging her a $1,000 deposit as a condition for allowing her to keep her service dog, Riley.  At trial, Newman, her treating therapist and an independent expert testified that Riley assisted Newman in living with the symptoms of her disabilities, including providing emotional support, helping to predict migraines, and reducing suicidal thoughts.  Newman also testified that she repeatedly informed Katz that charging a deposit for a service animal was illegal and that Newman understood that she would have to pay for any actual damage caused by her service dog.

 

 

Not good.

A right to a Service animal is legally protected under the Americans with Disabilities Act.

Michigan Law requires a public accommodation to permit the use of a service animal by a person with a disability.

Among other things:

“A public accommodation shall not ask a person with a disability to remove a service animal from the premises due to allergies or fear of the animal. A public accommodation may only ask a person with a disability to remove his or her service animal from the premises if either of the following applies:

(a) The service animal is out of control and its handler does not take effective action to control it.

(b) The service animal is not housebroken” MCL 750.502c

 

Landlords and property owners should heed the warning of General Deputy Assistant Secretary Bryan Greene of the U.S. Department of Housing and Urban Development’s Fair Housing and Equal Opportunity.

“Many people with disabilities require the assistance of an animal to carry out major daily activities,” said  “Complaints alleging disability discrimination now account for the majority of the complaints HUD receives. HUD will continue to enforce the law and educate the public on the rights of people with disabilities in housing.”

.

I wonder, did the landlord/property owner ever consult with legal counsel on its practices?

There are some lessons to be learned for landlords, property owners, managers, and real estate investors.

 

Two takeaways from this news headline:

 

1. It is worth being proactive and engaging legal counsel. 

Issues arise. When in doubt, e-mail or call your attorney.

 

2. Residential Real Estate Investment is highly regulated.

If you are a landlord leasing out “residential” property as opposed to purely commercial property (business tenant), you are under much more stringent regulations. You must comply with Federal laws, like the Fair Housing Act and state laws, like the Michigan Truth in Renting Act. Make sure you are operating lawfully.

 

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Real Estate Law Update: Investors Purchasing at Foreclosure – Take Care in Handling Personal Property Left at the Property.

May 11, 2017 1 comment

Today I am posting about a Court of Appeals case decided on April 25, 2017  – Suzor v Kamlay 2016-07-22 13.10.20

Foreclosed Property = high risk/high reward.

Real estate investors are always wary of the many pitfalls when purchasing property at foreclosure.

I’ve previously posted on problems when someone is still occupying the Property after foreclosure.

The latest case talks about what happens if the holdover is no longer in the property – but has left personal belongings.

Should you take matters into your own hands and remove the stuff?

What liability does a purchaser have after foreclosure and the expiration of redemption if they remove any personal belongings?

FACTS:

  • Plaintiffs’ home was foreclosed on.
  • The property was sold at a sheriff’s sale.
  • Plaintiffs did not redeem the property.
  • Purchaser sued  and was given a judgment of possession and an order of eviction.
  • Purchaser hired defendant to secure and clean the property and remove any remaining personal property—a process commonly referred to as a “trash out.
  • Plaintiffs brought a claim for conversion, arguing that their attempts to get defendant to return the items of personal property he removed from the foreclosed property were to no avail
  • Defendant argued – I have immunity under the Anti-Lockout Statute, since I was operating pursuant to a Court Order.
  • Trial Court agreed.

 

Anti-Lockout Statute – MCL 600.2918 

Any landlord who has gone through the process of evicting a tenant knows that, in the residential leasing context, there are heightened duties of landlords, and heightened rights of tenants.  Tenants have the right not to have their possessory interest in the property interfered with, without the proper court procedure being complied with (Summary Proceeding Action in District Court).

 

Here, Defendant claimed he was shielded from liability under MCl 600.2918(3)(a) which provides

that “[a]n owner’s actions do not unlawfully interfere with a possessory interest if . . . [t]he owner acts pursuant to court order.” Id. page 2.

The Court of Appeals held though that such immunity only shields from liability if the parties have a landlord-tenant relationship.

“However, the parties to this case did not have a landlord-tenant relationship.”

Also, The Court noted that

“While an owner has the right to lawfully enter the premises and remove belongings left therein pursuant to court order, the owner does not have title over the property removed.” Id. page 4.

 

The Court of Appeals would have presumably reversed on this point, but held that the trial court essentially “got it right, but for the wrong reasons.”   The Plaintiffs failed to provide any evidence to prove their case – that the defendant when he removed the personal property converted them by failing to allow the Plaintiffs to recover the property, or otherwise “that a bailment existed”. Id.  page 4.

 

Conclusion:

A purchaser at foreclosure should be careful in handling the personal property leftover.

 

As the Court of Appeals noted – the purchaser is not shielded from liability under the Anti-Lockout Statute, since there is no landlord-tenant relationship.

Also, the owner may have purchased title to the real estate, but not to the personal property.

 

To avoid any unfounded claims by holdovers, it always makes sense after purchasing property at foreclosure, when there are any occupants present, to go through the lawful channels for a court proceeding to extinguish any possessory rights and to make sure any personal belongings are handled appropriately.

You don’t want to expose yourself to undue liability.

 

Questions? Comments?

E-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Landlords/Investors/Property Managers: Single Member LLCs Could Evict Tenants without Legal Representation under House Bill

April 27, 2017 Leave a comment

 

A common scenario in my legal practice:2015-11-26-13-04-02

Investor purchases property in an LLC. Investor locates a tenant. Tenant falls behind in rent. Investor hires attorney to evict Tenant.

Why hold real estate in an LLC?

Most of my investor clients own investment real estate in a Limited Liability Company.

This is for liability protection.

 

Once a limited liability company comes into existence, limited liability applies, and a member or manager is not liable for the acts, debts, or obligations of the company. “Duray Dev., LLC v. Perrin, 288 Mich. App. 143, 151 (2010).

 

Why not hold real estate in an LLC?

Some investment property owners decide not to do so. The primary driving reason from my experience is cost.

Cost associated with setting up the LLC; and

Cost associated with hiring an attorney and evicting non-paying tenants.

Some landlords don’t want to hire an attorney to evict a tenant.

Under current Michigan law, since an LLC is a separate legal person independent of the actual owners of the LLC, unless such owner is a licensed attorney, an owner of an LLC cannot file a lawsuit on behalf of the LLC.

To do so would be the unauthorized practice of law.

You can practice law on your own behalf – just not on behalf of someone else.

Although, the saying goes – he who is his own lawyer has a fool for a client.

 

Proposed House Bill Would Allow LLCs to Evict without Legal Representation.

 

House Bill 4463 was introduced last month ago and referred to the  committee on law and justice.

 

The Bill would allow owners of a single-member LLC (or a married couple under certain conditions) to file their own eviction actions on behalf of the LLC without the need for legal representation.

If the Landlord is seeking money damages, the amount, not including taxable costs, must be under the small claims Court maximum.

The Bill would also allow a Property Manager or other Agent to represent the LLC.

This makes sense for Landlords who want quick and cost-effective resolutions. I understand that an Investor who is not making money on a tenant also doesn’t want to expend additional legal fees to evict a Tenant. This is particularly true since the most attorney fees that a Landlord can recover against a residential tenant is limited to the statutory amount (currently $75).

I would be surprised if this bill passes, although other states have similar laws.

 

However, I will refer readers back to the lawyer who has a fool for a client…

 

Questions? Comments?

e-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka

Recent Michigan House Bill Would Repeal Prohibition on Rent Control – A Response to the Affordable Housing Crisis?

April 13, 2017 Leave a comment

2017-03-07 15.13.50

On March 30, 2017 House Bill 4456 was introduced. The Bill would repeal Michigan’s prohibition on Rent Control.

The Bill was presumably proposed in response to the affordable housing crisis in Michigan and all across the United States. Other local governments across the U.S. are exploring legislative avenues to address the housing crisis.

 

 

According to Representative Chang, who introduced the Bill, the current rent control prohibition “makes it increasingly difficult for seniors and some families to find affordable housing, or to stay in the apartments they’ve lived in for many years.”
Representative Chang was apparently referring to the affordable housing crisis in Detroit. From all accounts, Grand Rapids is facing an affordable housing crisis as well.

 

Grand Rapids Housing Crisis

As many of you may know, a few months back the Grand Rapids Chamber hosted an Issue Summit on the Housing Crisis in Grand Rapids.

The Summit brought speakers representing many community stakeholders, including representatives from 616 DevelopmentGrand Rapids Urban League,Rockford ConstructionICCFMSHDA, and many local non-profits, including Mel Trotter MinistriesHQHeartside Ministries, on this lack of affordable housing, what is as Mayor Bliss emphasized, admittedly, “a complex issue”.

I have previously offered my own perspective, both as a lawyer representing real estate developers/investors, and as Board Chairman at Mel Trotter Ministries.

 

Is there an Answer found in Social Enterprise?

A few months back, Jim Harger with MLive posted a thorough article on the affordable housing crisis.

One community partner highlighted was Pastor Jim Davis and his company “Purpose Properties

“The mission of Purpose Properties is to “raise enough money from local foundations and philanthropists to buy market-rate and affordable rental properties in the city.”

According to Jim Harger’s article:

Purpose Properties plans to charge market rates for its properties to those who can afford them and use their profits to subsidize the rents of those who cannot afford market rates.”

We need more businesses and community stakeholders to approach our community problems like Jim Davis and Purpose Properties.

 

Community Partners Collaborating

Recently Mel Trotter Ministries announced that it was partnering with 3:11 Youth Housing to provide housing for homeless males 18-24.

As Mayor Bliss stated at the Housing Summit – the affordable housing crisis presents a complex issue.

It will take all community stakeholders to do their part – businesses, churches, government, and non-profits.

 

The question we should all ask ourselves: Am I working to build a better community?

 

e-mail: Jeshua@dwlawpc.com

Twitter: @JeshuaTLauka