What is the best legal form for fractional or shared ownership?

This article provides step-by-step instructions for starting and running an owners association for a group of people who co-own, and share use of, vacation or resort property. These guidelines are intended for shared ownership groups ranging in size from two owners to 100 owners, and apply regardless of whether the group shares a single home, a multi-unit resort, or several properties in different locations. It addresses the following frequently asked fractional ownership questions:

The answers to these questions are designed to aid shared ownership groups regardless of where their shared property may be located, regardless of the legal structure of their co-ownership, and regardless of the level of formality with which they are organized.

How can one determine if an owners association exists (or should exist)?

People who own property with others on what they consider to be a relatively informal basis often wonder whether they have an owners association, and/or whether they should create one. As a practical matter, whenever there are two or more owners, an association exists on some level, and the co-owners face the issues inherent in any shared venture, including usage of the shared property, contracting with others for services and goods, paying bills, taxation, keeping owners informed, and making and implementing decisions. So even when an owners association does not exist as a separate legal entity (apart from the co-owners themselves), the owners need to function as if it did, and ignoring this need often leads to significant problems for even the smallest and least formal groups (such as those involving close friends and family members). Moreover, the absence of a formal association legal structure does not necessarily mean that the co-owner group escapes the filing and taxation requirements that apply to an owners association.

The question of whether a co-owner group should create a company, trust, or other independent legal identity depends on its size and function, and on the customs of the country or state where the property is located. The larger the group, the greater the need for an association with a formal legal identity. Smaller groups will also benefit from having a formal legal identity where the things it needs to do, such as paying bills, obtaining insurance or electricity, and contracting for repairs, can be accomplished more easily in light of local business practices and predispositions. Note also that the question of whether co-owners should have a formal legal identity needs to be addressed even where title to the co-owned property is held in the names of the owners. A fractional owner group with deeded ownership can create an independent legal identity for its owners association without giving the association ownership of the shared property. Note that, contrary to common misconception, obtaining a tax identification number and/or a fictitious business name does not turn a shared ownership group into a formal legal entity.

What is the best legal form for a fractional or shared ownership?

In most places, a co-ownership group or association that wishes to create a formal legal identity will have a choice of possible legal forms including various types of business entities (such as corporations, limited liability companies, and partnerships), trusts, and unincorporated associations, many of which can be further categorized as either “for profit” or “not for profit”. The choice of entity type is driven by three factors: (i) the cost and burden of creating and maintaining the entity; (ii) the tax consequences of having the entity and of selling the property and liquidating the entity; and (iii) the extent to which the entity will protect the co-owners from legal liabilities, and the need for such protections in light of the location and use of the co-owned property. Take care not to overestimate the importance of liability protection. Insurance will provide the most complete and cost-effective liability protection for many owner associations.

In instances where the co-owners will not be engaged in a joint business venture, such as sharing rental income from the property, a nonprofit homeowners association structure is generally best; however, nonprofit structures should generally be avoided if a single-transaction sale of the entire property is expected or likely. Where a joint business venture is involved, a limited liability company generally offers the best balance of formation/annual cost, operational formality, flexible tax treatment, and liability protection. Most entity types can be created even years after the co-owned property was obtained, and can be changed from one type to another relatively easily; however, it is generally important to select and obtain nonprofit status during the first year of operation.

When and how must the fractional owners association register and file forms with governmental agencies?

Although fractional owners association registration and filing requirements vary from place to place, the following generalized list includes the steps that are required in most places.

What tax returns should a fractional owner association file and what taxes must it pay?

It is important to distinguish between the tax filing and payment obligations of the shared-property owners as a group, and the individual tax filing and payment obligations of each of the fractional owners. Owning property as a group does not, by itself, create an organization with an independent taxpayer identity, and the fractional owner group has no obligation to file a return or pay taxes unless it has filed documents creating a company, trust, or other independent legal identity. But regardless of whether the fractional owners file a return or exemption request as a group, each fractional owner must declare any rental income or sale proceeds on his/her individual returns and, under certain circumstances, may be entitled to deduct certain expenses associated with ownership. At a minimum, each fractional owner must acknowledge rental income and sale proceeds on the returns he/she files in his/her country/state/province of residence; in some cases, the owner may also be required to file additional returns in the location where the share property is located, and/or in the place where a formal fractional owners association has been formed. For additional information regarding the taxation of individual fractional property owners, see the discussions under “Are payments on a fractional ownership vacation home tax deductible?” and “How will I be taxed when the fractional vacation home is sold or I sell my share?” at Fractional Vacation Property FAQs.

Even though an unincorporated and informal shared ownership group is generally not required to file returns or pay tax, the way it conducts its affairs can make it seem like a formal organization to tax authorities, and this appearance can trigger a demand by these authorities for a tax return. The most common example of this phenomenon occurs when a group of U.S. owners obtains an Employer Identification Number, and then receives a letter from tax authorities requesting that it file a tax return. Most groups in this situation find that writing a responsive letter explaining the nature of the group and how it operates triggers a withdrawal of the tax return request, but this provides only a temporary reprieve; the group will often receive another tax return request every year. For this reason, many unincorporated and informal shared ownership groups choose to formally establish themselves as taxpaying entities by filing appropriate tax returns or tax exemption requests. In most places, it is not necessary for the group to create a company, trust, or other independent legal identity in order to file these; rather, the fractional owners can obtain a tax ID, and file their returns or exemption requests, as an unincorporated association. But filing can sometimes increase the tax burden on the owners, so it is important to consult with a qualified tax professional before making the decision to file.

The question of whether to file a return or exemption request is often answered differently depending on whether the group shares rental income from the property. Note that the issue is not whether the property is rented, but rather how the rental income is handled. It is the sharing or pooling of rent (as opposed to paying it to the owner whose usage period is rented) that potentially changes the tax status of the group. For U.S. taxpayers that own property fractionally in the U.S. or overseas and do not share or pool rent, the simplest and safest course of action is to establish the federal tax-exempt status of the ownership group by filing a Form 1120H as described above. The filing procedure is the same for both informal shared ownership groups and associations with a formal legal identity. U.S. taxpayers who do not share rent should also investigate whether a similar filing is required in the state where the shared property is located (if it is in the U.S.), and in the state where the group has established its U.S. legal identity (if it has a U.S. legal identity).

When should a fractional owners association have its first owner meeting, and what should it do during that meeting?

A fractional ownership association should have its first owner meeting as soon as possible after forming, and should discuss the following issues:

Larger fractional owners associations generally have an elected board of directors that is allowed to make most (but not all) decisions. Having a board allows a larger shared ownership group to operate more efficiently by avoiding the need to convene a meeting of all owners each time a decision is required. The number of directors, qualification of candidates, nomination system, and election procedures, will be described in the bylaws, operating agreement, co-ownership agreement, CC&Rs, or other governing documents of the group. In some places, there are laws relating to some or all of these issues and, depending on the quality and age of the governing documents, they may or may not comply with current legal requirements. As a result, the best practice is to periodically consult a qualified attorney or current reference book to ensure that the group is complying with both its own documents and the applicable law.

All shared ownership groups should have at least one member who is authorized to sign contracts and checks and otherwise act on behalf of the group. Larger fractional owners associations typically have several officers, including: