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When Negotiating Your JV, Watch For…

LOS ANGELES—There are several key provisions in a typical LLC Operating Agreement which, if not carefully considered, can rise up later to wreak havoc, say partners at Manatt, Phelps & Phillips in this EXCLUSIVE Q&A.

By Justin Thompson, Tom Muller, partners of the land use and real estate group at Manatt, Phelps & Phillips LLP. | Updated on August 12, 2014

LOS ANGELES—For good reason, one of the most common structures for real estate joint ventures is the limited liability company. After all, it is one of just a few alternatives that provides an enticing blend of limited liability and structural flexibility. Like all joint ventures, though, the LLC is not without pitfalls. The typical “constitution” for an LLC is its “Operating Agreement”.  There are several key provisions in a typical LLC Operating Agreement which, if not carefully considered, can rise up later to wreak havoc.  Three of the most important provisions are:

Distributions:  These provisions typically detail the “waterfall” pursuant to which LLC profits are to be allocated.  Because they can be somewhat challenging to draft without ambiguities, if they don’t accurately reflect the members’ intent, the potential for disagreement among the members increases exponentially—after all, the members invest in order to receive cash flow.  If they are not carefully married to the tax provisions in the Operating Agreement, they can give rise to “phantom income” – income on which the members must pay tax even though they have not actually received funds from the LLC. 

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