Attack on Single Member LLC's

Recently, I have received calls or e-mails about single member LLC's and whether a recent judicial decision has softened the liability shield surrounding LLC's. The case many people seem to be referring to is Olmstead v. Federal Trade Commission decided by the Florida Supreme Court on June 24, 2010. Although this may be persuasive authority looked at by the Courts in this state it is not binding in this state and is currently not the law of this state.Two justices dissented to this opinion so there is clearly a division of opinion in this case. For those persons still worried about the asset protection features of LLC's , it is my opinion that they still are very effective in this state and can be combined with various trusts or agreements to increase asset protection. Some investors may also want to explore Nevada or Wyoming LLC's.

Protecting Tenants at Foreclosure Act-2009

The PTFA act passed by Congress in 2009 is only now popping up in eviction cases in Tennesee. This federal law provides a measure of protection to tenants with a lease arrangements who reside in properties that have been foreclosed upon by mortgage lenders. Traditionally, landlord -tenant relationships have been governed by state law in Tennessee, but the PTFA is a piece of federal legislation that impacts state law. Key provisions are 1) tenants subject to a bona fide lease may remain in the property to the end of the lease as long as they pay and are not in default. 2)a 90 days notice period for tenants without a term lease or under a lease terminable at will. For a bona fide lease to exist, the following criteria will be examined by the courts 1) the mortgagor or direct relative is not the tenant 2) the lease was the result of an arms length transaction and 3) the lease requires rent that is not substantially less than fair market rent. I have seen very few cases where this law has been an issue but it appears to be becoming used more and more as a defensive tool by tenants in foreclosure situations.

Delinquent tax sales

There has been some confusion and I receive a lot of questions about the redemption period for delinquent tax sales in Tennessee. In fact, the law was changed in 2006 to state that the period expires "one year from the date of sale as evidenced by the order of confirmation." Therefore the date of sale is the date used to measure the expiration of the redemption period. I also receive a lot of questions about the redemption process. According to the statute found at TCA 67-5-2704, if redemption occurs, the Clerk and Master will send notice of the redemption to the buyer and that person or entity has 30 days to file a motion to contest the redemption or assert claims for additional monies or both. If no claim or motion is filed by the buyer, the buyer will receive a refund of money plus interest at the statutory rate of interest. Finally, another statute states that the person in possession during the redemption period must not commit waste to the property. These provisions are found in Tennessee Code Anotated 67-5-2701-2705. I will be glad to attempt to answer questions you may have about this process.

Tax Impact on LLC's will change July 1, 2009

The Tennessee General Assemby recently enacted just before the end of the current session, a " Technical Corrections Bill". This statute modified the family-owned noncorporate entity exemption under Tennessee tax law. The exemption will no longer apply to rent from industrial and commercial property and some farm property. An exemption still exists if the entity elects by October 1, 2009 to waive the limited liability protection granted by statute. Another option is to convert the entity to a limited partnership. At this time it appears that family owned entities receiving substantally all of its income from residential real property will be exempt as long as the property owned by the entity has no more than four residential units on it. I will post any additional information I receive on this new statute as soon as it becomes available. At last notice this bill was waiting on the Governor's signature.

Tennessee Condominium Act of 2008

For readers interested in Condominium issues,the Tennessee legislature has enacted the Tennessee Condominium Act of 2008 effective January 1, 2009. This is a comprehensive revison of the condominium law in Tennessee and replaces the old Horizontal Property Act as to new condominiums. It generally does not affect condominiums in existence at the time this law goes into effect except for a few provisions which apply to all condominiums in the state. However, it does leave room for existing condominiums to adopt the new law. A few key provisions are as follows:1) Condominiums will be created by a declaration instead of a master deed 2) Units and limited comon elements are more specifically defined by statute 3) In the event a conflict exists between the declaration and by-laws the declaration will generally prevail 4) It defines the plan or survey to be attached to the declaration which will clearly designate the units and the common elements 5) Sets a minimum approval of 67% of the owners to amend the declaration 6)Provides for a master association in more complex developments 7) States specifically the powers of the owners association and the board of directors 8) Sets a statutory quorum for association meetings 9) Requires a specific vote of the owners to convey or encumber common elements and 10) creates an automatic lien for common expenses or assessments from the time they become due.I will be glad to answer any questions you may have about the new act.

Revision In Tax Sale Law

Until this year, the courts in Tennessee had ruled that quiet title suits following a tax sale by the county, could not be filed until at least three years after the sale. Due to a 2008 amendment, the Tennessee legislature amended the law to provide that a quiet title action can now be brought after the one year redemption period. This should help facilitate the clearing of title of properties purchased at county tax sales.