The founders of a corporation must create bylaws to govern it. An operating agreement governs an LLC -- not bylaws. According to Dartmouth University, many states do not require an LLC to have an operating agreement to register and do business in the state. However, it is still advisable for the owners, known as members, of an LLC to create an operating agreement because it helps guard the LLC's limited liability protection and prevent financial and management misunderstandings.
A LLC does not have to file its operating agreement with the secretary of state; however, it must still conform specifically to the state's laws. According to Harvard University, some LLC operating agreements state that all court cases involving the LLC are under the jurisdiction of a specific state. The Delaware Court of Chancery has upheld this requirement when it appeared in LLC operating agreements.
The operating agreement of an LLC may provide members' rights that state law does not grant. In the state of Florida, members may not be able to sell their shares in the LLC unless the operating agreement specifically allows them to sell their shares. The members will not be able to get their investment capital back from the LLC without completely disbanding it if this option is not available.
When a state does not require an LLC to provide an operating agreement, the LLC still has rules that govern it: each state has laws that set basic default rules that govern sales of shares, establish the liability of each member and define the members' rights to approve new members. According to Dartmouth University, when LLC members create their own operating agreement, it has priority over the state's default rules.
The operating agreement usually outlines the financial and working relationships of the members of the LLC. In the case of a single member LLC, this member can still create an operating agreement. According to Dartmouth University, when an individual who has sole ownership in an LLC writes an operating agreement, this helps ensure that courts do not view the company as a sole proprietorship.
Read More: Going From Multi Member LLC to Single Member LLC
The LLC operating agreement can determine which members have management responsibilities for the company. The default rule in Florida is that an LLC is member managed, so each member has management rights. According to Nova Southeastern University, the LLC operating agreement is necessary in Florida if the members want to assign management rights only to specific members.