I am involved in a real estate deal with a partner. We are getting ready to sell the property and are in disagreement about how to calculate profit. This is the story: Partner 1 put 10% down and the mortgage is in his name Partner 2 put nothing down but paid everything 50/50 from the day of purchase (about 6 yrs ago) They agreed that original 10% down represented Partner 1 having 10% more interest in the property. This is documented in the co-tenancy agreement. They were both living in the house and put a co-tenancy agreement in place along with a quit claim deed to partner 2 for 45% interest in the house. About 2 years ago, they decided to rent the house rather than continue living there together. They started an LLC to protect personal assets and therefore did a quit claim deed (both of them deeding the property to the LLC). They also have an operating agreement for the LLC which denotes the 45/55 split in ownership as capital contributions. They now want to sell the property. In one scenario, it is a basic sell price minus debt divided by % of interest calculation: Today's Est. Selling Price 550,000 Est. Closing Costs (33,000) Mortgage pay off balance (270,000) Net Profit 247,000 Partner 1 (55%) 135,850 Partner 2 (45%) 111,150 In the second scenario, partner 1 wants to calculate appreciation (sell price - purchase price) with a 45/55 split and then look at equity (purchase price - debt still owed) in terms of $ contributed. Appreciation: Today's Est. Selling Price 550,000 Original Purchase Price 400,000 Est. Gain on Sale 150,000 Est. Closing Costs (33,000) Net Proceeds 117,000 Partner 1 55% Est. gain on sale 82,500 Partner 1 55% Est. closing costs (18,150) Partner 1 55% net proceeds 64,350 Partner 2 45% Est. gain on sale 67,500 Partner 2 45% Est closing costs (14,850) Partner 2 45% net proceeds 52,650 Equity: Partner 1 10% Down 40,000 Partner 1 Loan payments made 45,000 Partner 1 Equity 85,000 Partner 2 Loan payments made 45,000 Partner 2 Equity 45,000 Total Partner 1 net proceeds plus equity = 149,350 Total Partner 2 net proceeds plus equity = 97,650 So which way is the "right" way to calculate each partner's profit? The co-tenancy agreement indicates profit will be calculated the 1st way. The operating agreement is a a pretty stock template only denoting the 45/55 split in capital contributions as an exhibit. Is there any precedent for calculating profit the 2nd way?
This is a prime example of why "stock template" operating agreements are not always the best. They don't always cover every situation and can sometimes lead to confusion. It is best to have specific language on the Operating Agreement that discusses exits, sales, and division of assets. With no other information to go on Scenario one is probably the way a business adviser would interpret the situation. The best action is to consult an contracts lawyer.
I hold two accounting degrees (frankly from more than a little while ago). That said, this isnt accounting advice, nor is it tax advice, nor legal advice. I have done hundreds of real estate deals, ranging from deals just like this one (two partners owning a house) to large commercial transactions. There are as many ways to calculate profit sharing as can be imagined, and almost all of these ways can either be argued or have some precedent. What appears to me to be happening here is that one partner is hoping to get more of the proceeds than the original agreement called for. The more salient question, in my view, is how would a court look at this circumstance, and again, while this is not legal advice, I do have sufficient experience to say that most likely a court would respect the original 55/45 agreement as it was agreed to by the partners. That is much more dispositive of the sharing question than the accounting method. If you would like to discuss this further I am available. Good luck.