Unanimous Written Consent of Members
(Limited Liability Company, Sale) (OH)

Summary

This unanimous written consent template may be delivered by the members of an Ohio limited liability company to authorize the sale of Ohio commercial real property. This written consent template includes practical guidance and drafting notes. Ohio enacted a revised Limited Liability Company Act ("LLC Act"), 2019 Ohio SB 276, which took effect on February 11, 2022. The LLC Act replaces the existing Act in Chapter 1705 of the Ohio Revised Code with new Chapter 1706 of the Ohio Revised Code. Consult the Ohio Secretary of State's website for a summary of the changes. Consistent with the American Bar Association's Revised Prototype LLC Act, the new Ohio LLC Act eliminates the member-managed and manager-managed forced bifurcation of management structure and the statutorily conferred actual and apparent authority of members and managers in those positions of authority. The LLC Act replaces this with a statutory default framework that provides the members with the authority to manage the LLC. Ohio Rev. Code § 1706.30. By statutory default, all matters within the ordinary course of activities of the LLC may be decided by a simple majority of the members. Ohio Rev. Code § 1706.30(B)(1). Unanimous consent is required for a limited liability company to undertake any act outside the ordinary course of activities. Ohio Rev. Code § 1706.30(C)(1)(c). Counsel should consult the limited liability company operating agreement to determine that the members have the authority to authorize the sale as contemplated by the written consent and that the number of members necessary to approve the transaction has been met (which in this case is all of the members). Some limited liability company operating agreements may require only a majority or a super-majority (as defined by the operating agreement) to approve actions. If this is the case, the title and introductory paragraph of this consent should be revised to delete the word unanimous and the reference to the approval of all members. The written consent must describe the authority of the members to take actions on behalf of the limited liability company and to execute the required documents to consummate the sale of the real property. Delivery of a written consent is a standard requirement of the title company issuing the owner's title insurance policy to the purchaser. For more on the sale of commercial real property in Ohio, see Purchase and Sale of Commercial Real Property (OH), Purchasing and Selling Commercial Real Estate Resource Kit, Commercial Purchase and Sale Agreements, and Closing and Other Ancillary Documents Required for Commercial Real Estate Purchase and Sale Transactions.