By Emily Koelsch
With changing economic and market conditions, some Landlords are deciding to sell their rental property with Tenants in place. There are various reasons to do this – for example, wanting to take advantage of strong markets, needing cash for other opportunities, or no longer wanting to be a Landlord.
There are some distinct advantages and disadvantages to selling a property with Tenants in place. If you decide to buy or sell a property with Tenants, you must know and respect your Tenants’ rights.
To help you do that, here’s an overview of those Tenant rights and tips for making the process go smoothly.
Notice Requirements When Selling a Property With Tenants in Place
Tenants have a right to receive an official Notice of Sale of Property. This Notice should be detailed and include specifics about when you’re putting the property on the market, the notice Tenants will receive before showings, and any other Tenant rights or responsibilities.
When drafting this Notice, look at your Lease Agreement and state laws. Some states have specific timelines for when Landlords must give notice. Additionally, good Lease Agreements include language about Notice of Sale and Notice of Showings.
Here are some tips for drafting this Notice:
- Review your Lease and make sure you comply with all terms;
- Review state and local laws to ensure compliance with all requirements;
- Include as much detail as possible;
- Tell Tenants how much Notice you must give before showings;
- Discuss the Tenants’ rights and responsibilities;
- Encourage Tenants to contact you with any questions or concerns.
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The Lease Agreement Is Enforced Even if Ownership Changes
One of the most essential things for Landlords and Tenants to understand is that a fixed-term Lease Agreement remains in effect even if ownership changes. The Lease isn’t tied to the Landlord; instead, it remains with the property and is in full effect until the end of the Lease period.
Here are some Lease-related tips when selling a property.
- Tenants are understandably anxious when they hear that their home is being sold. To ease their concerns, let them know that their Lease terms won’t change.
- A strong Lease Agreement can make your home more attractive to investors. Investors are bound by the terms of the Lease. They’ll be more comfortable with a thorough, state-specific Lease Agreement.
- To protect your Tenant, put everything in writing. For example, if the Lease doesn’t include a Pet Addendum or address pets, the new owner could tell your Tenants their pets are not allowed. Add any needed Addendums to your Lease before selling the property.
- At the end of the Lease term, Tenants are entitled to their security deposit. At the time of the sale, Landlords should transfer the deposit and any accrued interest to the new owner.
Effectively Marketing & Selling a Property With Tenants in Place
Even with proper Notice and a good Lease, it can be tricky to sell an occupied rental property. The process is stressful for Tenants and presents uncertainty for buyers. Thankfully, there are some ways to make the process go smoothly.
With that in mind, here are some tips to help you market and sell an occupied rental.
- Make sure Tenants are current on rent. If Tenants are behind, it makes your property less attractive to investors.
- Offer incentives to encourage Tenants to be cooperative during the selling process. Tenants can help by keeping the property clean, leaving during showings, and staying current on rent. To encourage cooperation, consider offering incentives like gift cards to local restaurants, a night at a hotel during an open house, or a rent discount while the house is on the market.
- Communicate well with Tenants throughout the entire process. Good communication includes coordinating showings around their schedule. Ask your Tenants when it’s convenient to show the property and, whenever possible, schedule showings during these times.
- Even if you don’t plan to sell a property, your Lease should always include language about a Landlord’s right to sell a property.
- Tenants are not required to clean or prepare the property for showings. To ensure it’s in good condition, offer to have it professionally cleaned.
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By Bradley Barth
Rental income property owners need to fully understand the Corporate Transparency Act (CTA) of 2021, a federal law that took effect on January 1, 2022. The law mandates that all “reporting companies” (LLCs, Corporations, LPs and others) must submit a report to the Financial Criminal Enforcement Network (FinCEN) of the U.S. Treasury disclosing specific information.
- THIS INFORMATION INCLUDES DETAILS ABOUT:
- Beneficial owner(s) of the reporting company.
- The individual (referred to as the “applicant“) responsible for establishing
the company by submitting its formation documents (such as articles or
a certificate of organization, articles of incorporation, or a certificate of
partnership) to a state agency, for example a Secretary of State.
WHAT IS A BENEFICIAL OWNER?
A beneficial owner is defined as an individual who, directly or indirectly, holds substantial control over the entity or owns or controls at least 25% of the entity’s ownership interests through contracts, arrangements, understandings, relationships, or other means. If your living revocable trust holds any of your properties, then a review of your trust must be done to identify “control” persons within the terms of the trust.
CORPORATE TRANSPARENCY ACT
(CTA) FINES
Beginning January 1, 2024, the Corporate Transparency Act began enforcing reporting companies to file. Failure to file a FinCEN report by the due date can result in significant fines. Specifically, FinCEN can impose a $500/day fine for each day that the Corporate Transparency Act form remains overdue. The CTA also includes provisions for criminal penalties in cases of willful violations of the law.
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ARE YOU EXEMPT?
It’s worth noting that nearly all entities formed in the U.S. fall under the category of reporting companies, regardless of their formation date. However, there are exemptions comprising entities that are not considered reporting companies and are thus not obliged to submit a FinCEN report. Certain small businesses, with fewer than 20 employees and less than $5 million in gross receipts or sales, are exempt from the reporting requirements. Additionally, certain types of entities, such as publicly traded companies, are also excluded from compliance. If your company is not exempt from the CTA, it qualifies as a reporting company and must file a FinCEN report. If you own your property in an LLC or other legal entity, you are most likely required to file the FinCEN report. If you own your property in your own name or your living trust there is another important topic to consider, which is your liability exposure. You have unlimited exposure to all of your assets from a liability at your property if you do not own your property in a proper legal structure.
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AAOA is well known for its knowledgeable and helpful customer service team. Throughout the day, they are available to answer all types of questions from AAOA members ranging from “How do I place an order?” to “Can you help me analyze this credit report?”
But one question that is particularly moving is when someone calls and says, “My parent(s) recently died and left me their apartment buildings. I need to find a new tenant and I don’t know anything about being a property manager.”
“While there are many ways to mishandle an inheritance, chief among them is a lack of preparation,” says Forbes. “Parents may spend time and money to ensure that their estate is organized properly, but those efforts may be wasted if they don’t also prepare their heirs to manage the properties they have inherited.
To empower future generations to oversee and sustain inherited wealth, it is necessary to equip them with the skills and knowledge they need to do so.” To help the next generation thrive, take the following proactive steps:
DEVELOP A PROPER ESTATE PLAN
Forbes continues, “It’s easy to neglect estate planning. Aside from the discomfort of facing your own mortality and the thought of your children navigating the world without you, estate planning can require considerable effort and expense.”
That’s probably why only 32% of Americans have created a will—and even fewer people have taken the care to construct a thoughtful estate plan. Nonetheless estate planning allows you to reduce costs and maximize the inheritance for heirs.
Leaving Real Estate in Your Will
Your last will and testament is just one section of your estate plan. It sets out how you want your assets to be distributed upon your death. You can leave real estate in your will, but there are pros and cons to doing so. When real estate is left in a will, the debt on it, i.e., any mortgages or liens, must be paid off immediately. This may or may not be financially feasible for your beneficiaries. Furthermore, if you have left the property to more than one individual, each of them owns an undivided interest in it. It is vital that you appoint a reputable sponsor to assist your heirs in building and preserving your generational wealth.
Leaving Real Estate in a Trust
Setting up a trust is another way that you can leave real estate to your heirs. A trust is a separate entity that can own real estate, which is then managed by a trustee. You can place real estate in a living trust and then act as the trustee to control and benefit from it during your lifetime. Then, upon your death, the property transfers to the beneficiaries of the trust.
Leaving Real Estate Utilizing the Deed
to others can have an impact on you as the property owner as well as your beneficiaries when you are gone. The deed gives specific rights to its parties, both in how they own the property, and, in some cases, at what point they take ownership of it.
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FAMILIARIZE YOUR HEIRS WITH YOUR PROPERTIES
Once you have created your estate plan, it is time to tell your heirs about the details and what is expected of them when they inherit your multifamily properties. You have worked hard to build your portfolio and you want to be assured that it will continue to flourish once you’re gone.
Review Your Holdings and Your Plans for Them
Even if your heirs have visited your investment properties over the years, it is quite another thing to see them through the eyes of a future landlord. Visit the properties with them, introduce them to your tenants and give them as much information as possible about the building as you can, including procedures, problems, maintenance issues, etc. Set up a meeting with your property manager if you have one.
Introduce Your Team
Of course, your heirs would assume that you have an accountant, attorneys and real estate agents to support your financial needs. This is a good time to introduce these experts to those who will be inheriting your multifamily property. Your heirs should also meet your maintenance team, gardener and anyone else who helps you keep your holdings in good shape. When it comes time to replace a tenant, your heirs need to know how to find someone new. In addition to telling them where and how to publicize a vacancy and how to prepare it for a new tenant, they should have your username and password for your AAOA member account. AAOA is a very important part of your team and is ready to help your heirs through the process of ordering a tenant credit check and a tenant screening report and helping them analyze the results
CONCLUSION
It is smart to discuss your wishes with your family in advance, so there are no surprises and everyone is on the same page. It will benefit both the heirs and the property’s tenants and employees. And you can be comforted by the fact that your legacy will continue to flourish according to your wishes.
NANCY ABRAMS, Assistant Editor American Apartment Owners Association
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