Should You Form an LLC Before or After Buying a Home Together?

Buying a home with friends or family—whether it's a full-time residence or a shared second home—comes with one big question:

Should we form the LLC before we buy, or after closing?

An LLC (plus a solid Operating Agreement) gives your group legal protection, clarity, and structure for every shared decision. Without it, you’re basically co-signing each other’s risks.

Let’s break it down—when to form it, what to watch out for, and what other options exist.

Why Every Co-Owned Home Needs an LLC

When you co-own property, you’re not just sharing weekends—you’re sharing liability, bills, and responsibility. That’s where an LLC helps: it keeps everyone protected and keeps things professional without killing the friendship.

What an LLC does:

• Holds title to the property, documenting ownership shares.
• Separates your personal assets from property-related liability (the “liability shield”).
• Creates a “rulebook” (your Operating Agreement) for decisions, expenses, and exits.

Your Operating Agreement becomes a legally binding document under state LLC law, giving courts a clear framework for ownership, voting, and exits—something a basic co-ownership agreement can’t fully enforce.

What to Know

• Protection starts only once the property title is in the LLC’s name.
• Maintain a separate LLC bank account for all income and expenses to preserve the liability shield.
• Expect annual state filing fees ($70–$800, depending on the state).
• Title, insurance, and tax records must all be updated to match the LLC’s name.
• Title insurance doesn’t transfer automatically—contact your title company to add the LLC as an insured party (NAIC).

If You’re Co-Owning a Primary Home

If you and your co-owners plan to live in the home full-time, the best move is usually: Buy first, then form your LLC right after closing.

Why This Order Works

Most lenders only approve primary-residence loans for individuals, not entities. Buying first allows you to:

• Access the best loan rates and homeowner programs.
• Keep the loan process simple and familiar.
• Add LLC protection after closing.
  
  

If You’re Buying a Shared Second Home
(Vacation or Rental)

For vacation or partial-use homes, there are two clear paths.

Option 1: Buy First, Form the LLC After (Easier Financing)

Best for homes used mostly by the owners. You close as individuals (qualifying for “second-home” rates) and transfer title later—keeping financing simple.

Option 2: Form the LLC Before You Buy (Best Protection)

Best when you’ll rent the property or take an investment loan. The LLC holds title from day one, giving immediate liability protection and cleaner accounting.

Pros and Cons (LLC first)

What to Know

• Lenders often treat LLCs as investment borrowers—expect higher rates and down payments.
• Use the right insurance: rentals require DP-3 (landlord) policies, not HO-3 homeowner coverage (Insurance Information Institute).
• Many cities collect short-term-rental (transient-occupancy) taxes, even for owner-managed rentals.
  
  

 Potential Risks

The Due-on-Sale Clause

When you transfer a property from your name into an LLC, you risk triggering the due-on-sale clause, which allows the lender to demand full loan repayment.

• Federal baseline: The Garn–St. Germain Act of 1982 protects certain transfers (like to a revocable living trust) but not transfers to LLCs (12 U.S.C. § 1701j-3).
• Conventional loan exceptions: Fannie Mae allows transfers of an occupied primary residence to a borrower-controlled LLC under specific conditions; Freddie Mac has similar guidance (Fannie Mae Servicing Guide, Freddie Mac 8406.3).

What to do: Always request written consent from your lender before transferring title. These exceptions apply only to loans actually owned by Fannie or Freddie and meeting their conditions.

Tax and Exemption Risks

1. Loss of Capital Gains Exclusion: Under IRS Section 121, homeowners can exclude up to $250,000 ($500,000 married) of profit when selling a primary residence. If a multi-member LLC owns the home, the IRS may treat the LLC as the seller, jeopardizing the exclusion (IRS Pub 523).
2. Loss of Homestead Exemption: Many states protect home equity and cap property-tax increases. Transferring to an LLC can void these benefits and may trigger a property-tax reassessment (e.g., California Prop 13/19).

Other Paperwork to Update

• Transfer costs: Expect recording and transfer fees; some states/counties impose transfer taxes or reassessment costs.
• Insurance: Update your homeowners policy so the LLC is the named insured. Consider an umbrella policy during the transition.
   

The 80 / 50 / 70 Rule (Quick Guide)

Why Waiting Too Long Can Be Risky

If you skip the LLC entirely:

• Each owner stays personally liable for the full mortgage and any property-related claims.
• There’s no legal process for handling disputes or buyouts.
• One co-owner’s bankruptcy, divorce, or default can jeopardize everyone.

Pro tip: Even if you’re not ready for an LLC, draft a short Co-Ownership Agreement that covers expenses, voting, and exits—it’s your minimum safeguard.

Alternatives to an LLC

While an LLC is usually best for clarity and protection, some small or family groups choose simpler structures like Tenancy in Common (TIC) or a Trust. Each has advantages—and trade-offs.

Tenancy in Common (TIC)

Each owner holds a defined share (e.g., 40/30/30) and can sell or transfer independently.
TICs allow shared ownership without creating an entity, but each owner is personally liable.

A written TIC Agreement can define expenses and exit rules, yet it can’t override the statutory right of partition—the right of any owner to petition a court to force a sale.  (Cornell LII).

Trusts

A revocable living trust can hold title to simplify inheritance and avoid probate.
The trustee manages the property for beneficiaries as defined in the trust.

Trusts offer strong estate-planning benefits but limited liability protection, since assets inside the trust remain reachable by creditors. Some families use both: the trust owns shares of the LLC, combining management structure with legacy planning.

The Bottom Line

• Primary home: Buy first, then form the LLC—but understand that transferring later can affect your §121 capital-gains exclusion and homestead benefits (IRS Pub 523).
• Shared or rental home: Form the LLC first to secure day-one protection and simplify taxes.
• Not ready for an LLC: Use a Co-Ownership or TIC Agreement for clarity—just remember it offers little liability shield.

The key is structure. Once your LLC is in place, you have the legal and financial framework to keep shared ownership clear, fair, and secure.

Learn more about the various co-ownership structures