The traditional Texas LLC has long been a favorite of real estate investors and others, especially after limited partnerships were made subject to the Texas franchise tax in 2007. Investors who formerly created investment structures based on limited partnerships (with a corporation as general partner) then shifted their focus to LLCs which are cheaper to file and less complicated to manage and maintain. New filings at the Secretary of State reflect that formation of other types of entities is down significantly, while LLCs compose the majority of new filings. The LLC is now the dominant entity for small business.
A newer type of LLC—the series LLC—has been available in Texas since 2009 (see Chapter 101, Subchapter M of the Texas Business Organizations Code, often referred to in this article as the “BOC”). The series LLC is an excellent way for real estate investors to own similar multiple assets since it allows for sorting individual properties into separate compartments known as series that are isolated and insulated from one another. This contrasts with the old method of forming a separate traditional LLC for each asset or property acquired.
Series LLCs (which were born in 1990 with the Delaware Business Trust Act) were initially designed to cater to the mutual fund and asset securitization industries. Series entities have since shown their worth in real estate investing and are now available in at least thirteen jurisdictions (Delaware, Texas, Nevada, Alabama, the District of Columbia, Illinois, Iowa, Kansas, Missouri, Montana, Tennessee, Utah, and Puerto Rico). Our preference is for Texas and Nevada, which have similar statutes.
Our recommended asset protection structure for long-term real estate investors with multiple assets involves two LLCs, a shell management company (which can be a traditional LLC) and a holding company (a series LLC). Few investors or business persons need anything more complex than this two-company structure.
The series LLC is an idea whose time has come, particularly for real estate investors who wish to avoid a proliferation of entities. This and other improvements to the BOC have solidified Texas’ already deserved reputation as an excellent place to do business and engage in asset protection. There is no longer any good reason to go to another state to form either a traditional or a series LLC unless one is specifically looking for protection by virtue of the physical and jurisdictional distance of being in another state.
What is a series LLC?
A series LLC allows an investor to hold assets and liabilities within separate cells or series which effectively operate as sub-companies (Series A, Series B, and so forth). However, series are not stand-alone legal entities in their own right—at least not technically according to Section 101.603 of the BOC—but in many respects they act as if they are.
An individual series is statutorily empowered to file and defend lawsuits; enter into contracts; buy, sell and hold title to property; grant liens and security interests; and “exercise any power or privilege as necessary or appropriate to the conduct, promotion, or attainment of the business . . . .” BOC Sec. 101.605(6). A series can obtain its own EIN if it chooses and be treated separately for federal tax purposes. A series may (but is not required) to have its own bank account. A series can (and should) operate under its own assumed name. Additionally, BOC Section 1.201(b)(27) has been amended to include a series within the definition of a legal “person.” Given all of these characteristics, declaring that a series is not technically a stand-alone legal entity may be a distinction without a difference, at least most of the time.
Notwithstanding the foregoing, BOC Section 101.622 states that a “protected series or registered series has the rights, powers, and duties provided by this subchapter to the protected series or registered series but is not a separate domestic entity or organization.” Accordingly, neither a protected series nor a registered series has any legal existence or power independent of the company at large—so series are not LLCs. The name of the series may not be followed by “LLC.”
The Texas Comptroller, for its purposes, states that a “series LLC is treated as a single legal entity. It pays one filing fee and registers as one entity with the Texas Secretary of State. It files one franchise tax report as a single entity, not as a combined group, under its Texas taxpayer identification number.”
Benefits of a Series LLC Versus a Traditional LLC
The series LLC shares core characteristics with the traditional LLC, including the benefit of informal management, an effective liability shield, and pass-through taxation; but a series LLC also segregates and compartmentalize assets and liabilities within individual series. Accordingly, in a series LLC the effect of a lawsuit or judgment is contained within the specific series. This contrasts with a traditional LLC which holds its assets in a collectively vulnerable pool. In any context in which multiple properties are involved, this is a compelling reason to consider a series LLC rather than a traditional LLC.
As an example, suppose there is a foreclosure on a property contained in Series A, and there is a deficiency at the foreclosure sale which results in a judgment. Assuming that the series company and its transactions were properly structured, the judgment would be enforceable only against Series A and its assets, not against the assets of Series B, Series C, or the assets of the company at large.
Note that it is not necessary to implement the series features of a series company unless and until one is ready to do so; until then the company operates exactly like a traditional LLC. Accordingly, there is generally no downside to choosing to form a series LLC rather than a traditional LLC, even if there is no immediate need or intention to implement the series aspect of the company.
Categories of Series Beginning June 1, 2022
The BOC as it relates to series LLCs was significantly amended by the last legislature. The amendments, which go into effect June 1, 2022, break series down series into categories: registered series, protected series, and those that are neither (see BOC Sec. 1.002 (69-b), (77-a), (78-a), and (79-a)):
“Series” means a designated series of members, managers, membership interests, or assets that is a protected series or a registered series, or that is neither a protected series nor a registered series.
“Protected series” is a series established in accordance with BOC Sec. 101.602 [i.e., to the extent that series records are maintained, and if both the certificate of formation and the company agreement contains a statement of limitation of liability of series], but without filing the certificate of registered series under Subsection (c), is a protected series.
“Registered series” means a series established in accordance with BOC Sec. 101.602 [i.e., to the extent that series records are maintained, and if both the certificate of formation and the company agreement contains a statement of limitation of liability of series], and for which a certificate of registered series has been filed, is a registered series.
As for ordinary series (not protected or registered), these will continue to exist. BOC Sec.101.601(c) expressly states: “Nothing in BOC Sec. 101.601 shall be construed to limit the freedom to contract to a series that is not a protected series or a registered series.”
What constitutes an ordinary series after the 2022 amendments? It’s less than clear, but would presumably include series in which records and accounting are NOT adequately maintained (as is required by BOC Sec. 101.602) AND no certificate of registered series has been filed. Caution will be in order when it comes to their use after June 1st. It is possible that series isolation and insulation as well as series powers may be questionable or ambiguous for these ordinary series.
Even though BOC Sec. 101.602(e) specifies that a company agreement does not need to use the term “protected” or “registered” or refer to the statute when referencing a series, it would clearly be better legal draftsmanship to define and distinguish these terms in the company’s governing documents.
Powers of Protected and Registered Series
Amended Chapter 101 of the BOC specifically defines the powers of protected and registered series as follows:
Section 101.601. Series of Members, Managers, Membership Interests, or Assets
(a) A company agreement may establish or provide for the establishment of one or more designated series of members, managers, membership interests, or assets that: (1) has separate rights, powers, or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations; or (2) has a separate business purpose or investment objective.
(b) A series established in accordance with Subsection (a) or a protected series or registered series established in accordance with Section 101.602 may carry on any business, purpose, or activity, whether or not for profit, that is not prohibited by Section 2.003.
Establishing registered and protected series does not affect the statutory powers that have been traditionally granted to previously existing ordinary series. An example would be the established legal capability of an individual series to hold title to real property. No change there.
A “notice of limitations on liabilities of series” is required as part of the certificate of formation of a Texas series LLC. The amended language contained in Section 101.602 is unchanged except to add mention of registered and protected series:
Section 101.602. Enforceability of Obligation and Expenses of Protected Series or Registered Series Against Assets
(1) the debts, liabilities, obligations, and expenses incurred, contracted for, or
otherwise existing with respect to a particular protected series or registered series shall be enforceable against the assets of that series only, and shall not be enforceable against the assets of the limited liability company generally or any other series; and
(2) none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the limited liability company generally or any other series shall be enforceable against the assets of a particular protected series or registered series.
The utility of this notice extends beyond the Certificate of Formation. Why not, for instance, include this language in a deed into a series so all involved understand the statutory framework?
Certificate of Registered Series
After June 1, 2022, one will need to file a certificate of registered series with the Secretary of State and pay a filing fee of $300—at least if one wants to take advantage of the new registered series regime. If no such filing is done, then series will, by default, be viewed either as protected series or ordinary series.
A certificate of registered series must state: (1) the name of the limited liability company; (2) the name of the registered series being formed, which must conform with the requirements of Section 5.056(c); and (3) if the registered series is formed under a plan of conversion or merger, a statement to that effect. BOC Sec. 101.623(b).
Note that a certificate of registered series has a specific, limited purpose. It is not a certificate of amendment, so the certificate of registered series is not an appropriate means of altering or amending the company’s certificate of formation. This is true even though a “certificate of registered series may include any other provisions not inconsistent with law relating to the organization, ownership, governance, business, or affairs of the registered series.” BOC Sec. 101.623(c). A certificate of registered series may be amended by filing a certificate of amendment. BOC Sec. 101.624(a).
Unless the Secretary of State creates one, there appears to be no obstacle to filing the certificate of formation and the certificate of registered at the same time, perhaps with the former referring to and incorporating the terms of the latter. This may become the preferred methodology after June 1st.
Advantages of Registered Series
Although registered series are a new concept in Texas, it is anticipated that they will provide more overall commercial functionality and utility than ordinary series. For one thing, registered series will be publicly filed. Although not a separate legal entity unto itself (previous law is not altered in this respect—see BOC Sec. 101.622), a registered series at least approaches the same level of publicly-recorded validity and reliability as does the LLC at large.
This requirement of public filing should eliminate the doubt that previously worried lenders, title companies, and transactional parties as to whether or not a particular series had been properly formed, or even whether or not it legally existed at all. The transactional solution in prior times was to rely upon a company resolution stating that a certain series is duly established and authorized to engage in the subject transaction, since a certificate of good standing (called a “certificate of fact” in Texas) was not obtainable as to individual series. This has changed. The secretary of state may now issue a certificate of fact confirming the lawful existence of a series. However, “the secretary of state may not issue a certificate of fact confirming the existence of a registered series if the limited liability company has ceased to be in existence.” BOC Sec. 101.625 (d). This is true because a series cannot stand alone in the absence of a valid underlying limited liability company.
After June 1, 2022, registered series will therefore probably be the preferred choice of lenders and title companies when presented with the prospect of doing business with an individual series rather than the company at large. Lesser series—protected series and ordinary series—will probably have less marketplace utility. It is doubtful that they will ever be able to obtain financing except from private hard-money sources.
In practical transactional terms, especially in real estate, protected series are likely to devolve into a second-class alternative to registered series. For LLC owners and managers (1) who are not concerned with the potential operational advantages of registered series; (2) who do transactions in cash and can thus dispense with the inconvenience of a lender; or (3) who are concerned with maximizing anonymity in the public record, getting by with protected series may nonetheless be an acceptable choice. It is harder to discern much significant use for ordinary series.
Governance of Registered and Protected Series
There are no notable LLC governance changes in the amended law. BOC Section 101.608(b) states: “If the company agreement does not provide for the governing authority of the protected series or registered series, the governing authority of the protected series or registered series consists of: (1) the managers associated with the protected series or registered series, if the company’s certificate of formation; (2) the members associated with the protected series or registered series, if the company’s certificate of formation does not provide that the company has managers.” This is the same type of governance we have become accustomed to with Texas series LLCs since their authorization in 2009.
What sort of properties should be placed in the same series LLC?
Notwithstanding the broad statutory grant of powers to series, prudent asset protection practice suggests that one should think carefully before “mixing and matching” entirely different assets within the same company, even a series company. Nearly all asset protection advisors consider this to be a bad idea, instead preferring to keep “like with like.” As a rule, one should not place an enterprise into a series of an LLC that:
(1) is significantly different in kind or nature than other assets or series of the company, it being recommended that “like should be kept with like” within the same entity – this is true whether the entity is a series LLC or a traditional LLC;
(2) creates a much higher level of liability or potential for lawsuits than assets in other series;
(3) has a significantly different debt structure (involving blanket development loans, personal guarantees, and the like) than assets in other series, which statistically increases the possibility of lawsuits;
(4) receives significantly different tax treatment from assets in other series or is involved in a payment plan with the IRS;
(5) mixes management functions with holding functions within the same entity (it is a core principle of asset protection that these functions should be entirely separated); or
(6) falls into the category of a single-purpose entity (“SPE”). Examples of SPEs are restaurants, retail outlets, strip centers, apartment complexes, unique financial or technology investments, start-ups, etc. These are better placed in a separate, stand-alone LLC dedicated to a specific purpose. In other words: merely because the BOC permits entirely different enterprises to be contained within the same company does not mean that one actually should do so.
By way of example, say a client wants to put an investment cash account into the same entity (perhaps in a different series) as liability-rich rental properties. While this can technically be done and is legally permissible, it is just not prudent. There is not an asset protection advisor on the planet who would suggest mixing such disparate assets within the same entity.
Series Record Keeping Requirement
Protections and characteristics associated with protected and registered series require a level of ongoing maintenance. According to amended BOC Sec. 101.602(b), the isolation and insulation of series can be maintained only: (1) to the extent the records maintained for that particular protected series or registered series account for the assets associated with that series separately from the other assets of the company or any other series; and (2) if both the certificate of formation and the company agreement contain a notice of limitations on liabilities of series.
Records must be maintained “in a manner so that the assets of the series can be reasonably identified by specific listing, category, type, quantity, or computational or allocational formula or procedure.” BOC Sec. 101.603(b). Implicit in the statute is the idea that assets and liabilities of a series can and should be separate both from the assets and liabilities of other series and those of the company at large. Commingling among these categories should be avoided.
How burdensome is the record-keeping requirement? As it turns out, not very. Terms like “reasonably identified” and “objectively determined” do not call for sophisticated accounting. A well-kept check register with selected annotations will likely suffice.
After June 1, 2022, the key point to remember is this: unless the rule on separate series accounting and record keeping is complied with, a series can be neither a registered series nor a protected series. What does this mean for ordinary series that are neither registered nor protected? Nothing good. These may become largely useless as a practical matter, except perhaps as an internal placeholding device.
As always, records should be kept with an eye toward potential litigation, particularly litigation that includes piercing allegations since such allegations are common in Texas courts, abusive though they may be in non-fraud situations. Internal documents that reasonably identify the activities of each series are therefore important from the standpoint of preparing for litigation. The company book should be kept up to date with annual meetings.
How many properties may be held in a series LLC?
While the statute permits a series LLC to have an infinite number of series, clearly that is not a prudent thing to do. It is common to use alphabetic nomenclature for series (series A, series B, etc.); so when an investor has filled Series A through Series Z—that’s 26 properties—it is well past time to consider forming another holding entity. Asset protection is a cautious enterprise. We suggest that, as a matter of prudence, no more than 15 or 20 properties should be held in a single LLC, even a series LLC.
What if an investor has only one property or business to put into the company? Should he or she still consider a series LLC? Perhaps the question should be “Why not?” since there are no significant additional up-front costs and one can delay implementation or activation of individual series until a later time. Until series are created or made operational, a series LLC behaves exactly the same as a traditional LLC.
It is not necessary that one already have multiple assets or properties in order to form a series LLC. If multiple assets of properties are in one’s future, it may be wise to go ahead and establish a series LLC at the outset, so that leases, contracts, accounts, and so forth can all be established in a way that is consistent with a series structure. Otherwise, it will be necessary later to move assets into the series LLC using warranty deeds.
Liability of Managers and Members of Series
There is no change to the protections afforded managers and members (i.e., they are still protected from series liabilities they did not personally guarantee) except to add express language for protected and registered series. BOC Sec. 101.606 states:
(a) Except as and to the extent the company agreement specifically provides otherwise, a member or manager associated with a protected series or registered series or a member or manager of the company is not liable for a debt, obligation, or liability of a protected series or registered series, including a debt, obligation, or liability under a judgment, decree, or court order.
(b) Notwithstanding Subsection (a), a member or manager associated with a protected series or registered series or a member or manager of the company may agree to be obligated personally for any or all of the debts, obligations, and liabilities of one or more protected series or registered series under the company agreement or another agreement.
(c) The company agreement may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person associated with a protected series or registered series has to: (1) the protected series or registered series or the company; (2) a member or manager associated with the protected series or registered series; or (3) a member or manager of the company.
It is anticipated that the unfortunate but widespread insistence by lenders on personal guarantees by LLC members will continue to make this statutory protection largely moot.
Naming of Series after June 1, 2022
Since the certificate of registered series requires that registered series be expressly named, one must now pay more attention to the naming of individual series. Existing practice has been somewhat loose in this area, with series being named “ABC LLC—Series A” or something similar. The new law tightens this up by requiring that “the name of a registered series of a limited liability company must contain: (1) the phrase ‘registered series’; or (2) the abbreviation ‘RS’ or ‘R.S.’ of that phrase.” BOC Sec. 5.0561. In addition, the name of registered series must contain the name of the company at large. BOC Sec. 101.626.
What might this look like? It could be as easy as adding the required abbreviation along with the name of the LLC. The full and proper name of a registered series would therefore be along the following lines: “ABC LLC—Series A (RS), a registered series of ABC LLC, a Texas series limited liability company.” This is a mouthful but one would still want to show this full proper name on deeds and contracts. As a point of legal draftsmanship, it goes without saying that the names of registered series in the certificate of registered series should reflect and be consistent with the naming regime established in the company agreement.
Prior to June 1, 2022, a series could be named most anything. Afterward, the name of a registered series must be “distinguishable in the records of the Secretary of State” from other such filed registered series. BOC Sec. 5.053. This is the same standard that is currently applied to the naming of the LLC at large. Presumably, therefore, the Secretary of State could and will reject a certificate of registered series if the distinguishability standard is not met.
Assumed Names for Individual Series
Assumed names are an important part of asset protection. BOC Section 5.051 states that a “domestic entity, a protected series or registered series of a domestic limited liability company, or a foreign entity having authority to transact business in this state may transact business under an assumed name by filing an assumed name certificate in accordance with Chapter 71, Business & Commerce Code.”
Business & Commerce Code (“B&CC”) Section 71.051 states that a “person must file a[n assumed name] certificate . . . if the person regularly conducts business or renders a professional service in this state under an assumed name other than as a corporation, limited partnership, limited liability partnership, limited liability company, protected series or registered series of a limited liability company, or foreign filing entity.”
B&CC Section 71.101 states that a “corporation, limited partnership, limited liability partnership, limited liability company, registered series of a limited liability company, or foreign filing entity must file a[n assumed name] certificate . . . if the registered series or entity: (1) regularly conducts business or renders professional services in this state under an assumed name; or (2) is required by law to use an assumed name in this state to conduct business or render professional services.”
A significant improvement in the amended BOC is the express empowerment of protected and registered series to file assumed name certificates. Prior to June 1, 2021, the Texas Secretary of State followed the entity theory and would decline state-level assumed name filings for individual series, accepting them only for the LLC at large. If one wanted an assumed name for a series, then it was necessary to obtain one from one of Texas’ 254 county clerks. Based on the text of the amended BOC, the Secretary of State will be required to change this practice.
The prescribed contents of an assumed name certificate are spelled out in B&CC Section 71.102. The item of note here is the requirement that the certificate must state the name of the protected series or registered series as stated in the company agreement (and, if applicable, the certificate of registered series) as well as the name of the LLC as stated in the company’s certificate of formation.
Classes of Membership Interests
When forming an LLC, it is useful to establish class A and class B membership categories in order to enhance asset protection, both at the level of the company at large and at the level of individual series. One’s ability to accomplish this in the company agreement has not changed except to expressly extend this capability to both protected and registered series (BOC Sec. 101.607).
(a) The company agreement may: (1) establish classes or groups of one or more members or managers associated with a protected series or registered series each of which has certain express relative rights, powers, and duties, including voting rights; and (2) provide for the manner of establishing additional classes or groups of one or more members or managers associated with the protected series or registered series each of which has certain express rights, powers, and duties, including providing for voting rights and rights, powers, and duties senior to existing classes and groups of members or managers associated with the protected series or registered series.
The company agreement may provide that any member or class or group of members associated with a protected series or registered series has limited voting rights or no voting rights at all (BOC Sec. 101.607(c)). Again, no change except to expressly include protected and registered series. Ordinary series, as in other instances, are left out in cold on this feature.
Termination and Winding Up of a Series LLC that Contains Registered Series
As to termination and winding up, “a protected series or registered series and its business and affairs may be wound up and terminated without causing the winding up of the limited liability company.” BOC Sec. 101.614 and 101.615. The interesting new item here is that registered series (unlike protected or ordinary series) must actually go through a formal winding up process that includes filing a certificate of termination with the Secretary of State. This additional bureaucratic step might be considered a disadvantage to having registered series, but given the public filing requirement necessary to form these series the rationale is understandable.
Conversion of a Traditional LLC to a Series LLC
BOC Section 101.631 et seq. provides that protected series may be converted to registered series (and visa versa) by means a certificate of conversion. However, this approach is not recommended unless the existing traditional company is free of baggage like debts, tax liabilities, contractual obligations, pending or threatened litigation, and the like. Otherwise, one should start to start a fresh new entity that is unencumbered by such matters.
Protected and registered series may also be merged. BOC Sec. 101.633.
After June 1, 2022, should existing deeds of record into individual series be amended?
This may be the safest approach if an investor wants all properties to fall under the umbrella of a registered series regime . . . but what a chore that will be. Deed amendments are made pursuant to the statute governing “correction instruments.” Under Property Code Section 5.027 et seq., a correction instrument may be filed in order to a correct a deed that contains some error or mutual mistake. A correction instrument is a supplementary filing that relates back in time to the original deed. It corrects the mistake but leaves other terms of the conveyance intact. A correction instrument is not in itself a deed (so you cannot call it a “correction deed”) but only an instrument correcting a mistake in a recorded deed. No new consideration is required.
The statute differentiates between material and non-material corrections. This determines whether both parties must sign or if the signature of only one party is sufficient. A non-material mistake would include the classic scrivener’s error, in other words. Perhaps a distance or an angle in the legal description was misstated, or the name of a party was misspelled. A person with personal knowledge of the facts may execute this type of correction instrument without joinder of others but a copy of the correction instrument must be provided to each party to the original instrument.
Material corrections are a more serious issue and are addressed by Section 5.029. Examples are the conveyance in the original instrument of the wrong property (lot 5 instead of lot 6 for example) or conveyance of property to the wrong entity. A correction instrument effecting a material correction such as these must be executed and acknowledged by each party to the original recorded instrument (in the case of a deed, both grantor and grantee).
It is arguable whether or not adding the RS designation to the grantee clause is actually a change of a party. It is certainly a change in the characteristics of the party. Taking a conservative approach, it is probably best to consider this a material change, so a correction instrument for an existing deed into an individual series should be signed and acknowledged by both grantor and grantee whenever that is feasible or possible to do.
Many existing recorded deeds are transfers from an investor’s personal name into an individual series of a series LLC that is owned by that same investor. In these cases, the process would be relatively easy; a correction instrument would be prepared that involves the investor signing the instrument twice (in each of his two capacities). An essential part of this plan would be to also update the company agreement to provide for registered series and other aspects of the new law.
New Federal Law: The Corporate Transparency Act and its Potential Effect on Registered Series
Although passed January 1, 2021, the Corporate Transparency Act will be progressively implemented as the U.S. treasury department issues regulations to enforce it. Core regulations are have begun to appear and we can expect more.
The stated purpose of the CTA is to crack down on anonymous shell companies that are used by money launderers, terrorists, and criminals. The Financial Crimes Enforcement Network (“FinCEN”) will require new registered entities to report personal information of the “beneficial owners” of the entity, defined as any individual who directly or indirectly exercises substantial control over an entity or owns at least a 25% interest. New entities will be required to report this information directly to FinCEN within two years of formation.
Since they will be publicly filed, will registered series be expected to report to FinCEN? This is relevant if for no other reason than penalties for non-compliance with the CTA are substantial, so new treasury regulations issued this area will be something to keep an eye on. Texas says registered series are not technically separate entities, but it will the opinion of the treasury department that matters on this subject, and it is under no obligation to honor Texas’s interpretation.
Texas Secretary of State Filing Fees and Execution of Filings
The filing fee for the new certificate of registered series is found in BOC Section 4.162: “For a filing by or for a registered series of a domestic limited liability company, the secretary of state shall impose the following fees: (1) for filing a certificate of registered series, $300; (2) for filing a certificate of amendment, $150; and (3) for filing a certificate of termination, $40.”
As to execution of filings, BOC Section 101.0515 will require that a “filing instrument of a limited liability company or a registered series must be signed by an authorized officer, manager, or member of the limited liability company or the registered series.” This is a significant change in practice, since presently such filings may be signed an “authorized person” pursuant to BOC Section 4.001, which could include the attorney filing the instrument. Apparently, after June 1, 2022, an attorney will need to be an officer, manager, or member of the LLC in order to sign certificates of formation, certificates of registered series, certificates of amendment, and the like.
Title Companies and Registered Series
With the advent of registered series, one can expect title companies to require a certificate of good standing (a “certificate of fact,” as the secretary of state calls it) for individual series that are involved in insured transactions. It may also be required that an assumed name certificate be filed indicating that the company is doing business by and through one of its series. Some title companies demand a copy of the company agreement, which we consider overreach. Company agreements are private, proprietary documents that are not usually the business of anyone but members of the company.
Information in this article is provided for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. No attorney-client relationship is created by the offering of this article. This firm does not represent you unless and until it is expressly retained in writing to do so. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well.
Copyright © 2021 by David J. Willis. All rights reserved. Mr. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, www.LoneStarLandLaw.com.