Honoring Sacrifice

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Since the earliest ceremonies in small American towns following the Civil War, we have gathered on Memorial Day to honor and remember those who made the ultimate sacrifice in service to our nation. As in those early days of laying wreaths and placing flags, our national day of remembrance is often felt most deeply among the families and communities who have personally lost friends and loved ones.

Since World War I, more than 645,000 men and women have given their lives in defense of our freedom here at home and around the world. 

This national holiday may also be the unofficial start of the summer season, but all Americans must take a moment to remember the sacrifice of our valiant military service members, first responders and their families. Memorial Day is a day of both celebration and grief, accounting for the honor of our heroes and reflecting on their tragic loss.

This Memorial Day, join us in remembering those who bravely sacrificed their lives for our country. 

At NAMCOA we pay tribute to Honor, Duty and Sacrifice.  

Benefits of the Tenant-In-Common Vs. Delaware Statutory Trust

Real Estate Tenant-In-Common or TIC Offerings 

Technically there are two types of Proportional Ownership products referred to as Tenant In Common  (TICs), which are structured as a securitized TIC or a Real Estate TIC.

Since the favorable ruling by the IRS in 2004 allowing a Delaware Statutory Trust, under specific restrictions, to be eligible for a 1031 exchange the use of securitized TICs has diminished.  Some security professionals have abandoned the TIC structure for the more lucrative business model that the DST format offers. For the sake of this comparison we will focus on the Real Estate TIC and how it compares to a DST.

A tenancy in common investment (better known as a real estate TIC) is an investment in real estate which is co-owned with other investors. Since the taxpayer holds a deed to real estate as a tenant in common, the investment qualifies under the like-kind rules of IRS Section 1031.

This type of an investment can appeal to taxpayers who are tired of managing real estate. TICs can provide a secure investment with a predictable rate of return. Real Estate TICs are often developed by commercial real estate professionals with an emphasis and expertise on the underlying real estate asset. They are marketed by real estate professionals and not security brokers.

A small number of TIC sponsors take the steps necessary to structure their TIC so that the investment is a real estate investment not subject to state security laws. Usually this means that the TIC sponsor will not be responsible for management of the investment and independent management will be employed by the owners.

Real Estate TICs have significant limitations when it comes to leveraging the properties with debt or investing in large complex commercial real estate that require ongoing management where the quality of the return is reliant on a third party. These limitations force Real Estate TIC sponsors to invest in debt-free high-quality Triple Net Leased properties. These limitations tend to produce a simple structure with a high level of safety and security.

The largest draw back to a Real Estate TIC is that each owner must take an active roll in decision making. This can be cumbersome with even a modest number of owners. The need for decisions can be mitigated up front by not taking out debt against the property and engaging in long term Triple Net Leases with investment grade tenants. This structure effectively eliminates the need for decisions in the near and intermediate term.  The tenant in common agreement for each property sets forth the structure whereby these decisions are to be made. Some can be structured with drag rights or other provisions to facilitate decision making.  Investors should closely review the tenant In common agreement.

Delaware Statutory Trust or DST Investment Offerings

In an effort to create an instrument that would increase the profitability for securitized TIC Sponsors as well as facilitate the placement of debt on properties the securities industry joined with commercial lenders and invested significant resources in developing a complex alternative fractional ownership structure that would overcome what they saw as the weaknesses and limitations of the traditional Real Estate TIC Investment Property offerings.  The result was the fractional ownership structure known as the Delaware Statutory Trust or DST.

The Internal Revenue Service issued Revenue Ruling 2004-86 on August 16, 2004. This ruling offered seven significant management limitations that if followed, permitted the use of the fractional ownership structure of the Delaware Statutory Trust or DST to qualify as replacement properties as part of an investor’s 1031 Exchange transaction.

Each co-investor owns an individual beneficial interest in the Delaware Statutory Trust. The DST itself shields the investor from liability with respect to the underlying investment property owned and held inside the DST.  These instruments are created and sponsored by securities professionals with expertise and an emphasis on creating a quality security instrument. They are sold by securities brokers with no required training, experience or education in real estate and are governed by the SEC.

As discussed above individual investors in a Real Estate TIC structure must vote on all major property decisions. Without a majority owner and appropriate structure, it can be somewhat dysfunctional to get the individual TIC Investment Property co-investors to agree on major decisions. To address this issue, the individual investors or beneficiaries in a Delaware Statutory Trust are not permitted to vote. In the DST structure partners relinquish the agency and authority to make all decisions regarding the management and wellbeing of the property and investment and vest it in a single trustee – the sponsor. However, for the DST to be 1031 qualified the Trustee must relinquish the right/ability to make major property decisions. This can create an even more difficult situation than the TIC structure.

Financial institutions can loan to a DST entity. Because the loan is made to the Trust there is no need for a lender to separately underwrite each co-investor for purposes of loan qualification since the DST is the borrower and not each individual investor. This structure allows DSTs to hold multiple properties with multiple and varied debt structures. This can provide a false sense of security to investors. Although individual investors are not underwritten by the lender or personally sign on a loan, their investment is used as collateral and is 100% at risk in the event market conditions, fraud or other issues create a default. The debt structure of any DST should be thoroughly evaluated and understood by each individual investor.

The Seven Deadly Sins of a DST

Internal Revenue Ruling 2004-86, which forms the income tax authority for considering a Trust as Real Estate for use with a 1031 Exchange has extensive prohibitions over the powers of the Trustee of the DST. In a 1031 qualified DST structure, the trustee is restricted from many actions that would otherwise be normal in typical ownership structures such as an LLC. The trustee may not renegotiate leases, make capital calls, or even re-finance the property. These IRS imposed restrictions are sometimes referred to as the “seven deadly sins,” and include the following:

  1. Once the offering is closed, there can be no future equity contribution to the Delaware Statutory Trust or DST by either current or new co-investors or beneficiaries.
  2. The Trustee of the Delaware Statutory Trust or DST cannot renegotiate the terms of the existing loans, nor can it borrow any new funds from any other lender or party.
  3. The Trustee cannot reinvest the proceeds from the sale of its investment real estate.
  4. The Trustee is limited to making capital expenditures with respect to the property to those for a) normal repair and maintenance, (b) minor non-structural capital improvements, and (c) those required by law.
  5. Any liquid cash held in the Delaware Statutory Trust or DST between distribution dates can only be invested in short-term debt obligations.
  6. All cash, other than necessary reserves, must be distributed to the co-investors or beneficiaries on a current basis, and
  7. The Trustee cannot enter into new leases or renegotiate the current leases.

The Springing LLC aka The Nuclear Option

These restrictions are significant. They are put in place to enable favorable consideration by the IRS and may even seem to provide protection for individual investors. However, they place significant limitations on the trustee in the event tenants default or market conditions require deviation from the management plan. In the event any of the above seven restrictions need to be violated, there is a way out. Delaware law permits conversion of the trust to an LLC. This is referred to as a “springing LLC”. This will allow for any or all the prohibited actions to be performed by the trustee without the consent of the members. This is the ultimate safeguard, but it comes with a massive price. This action will disqualify any of the tax-deferral benefits afforded by Section 1031 to the initial investors. The springing LLC clause is required in most DSTs because it gives the lender additional comfort that the trustee can perform necessary actions in the best interest of the bank even though activating this clause will have detrimental tax consequences to all 1031 investors in the fund. The alternative to having a Springing LLC clause is not pretty and typically does not provide the Trustee the tools necessary to react to even slight deviations in the anticipated investment course. This could result in a catastrophic failure of the Trust during a market correction.

For more information on 1031 strategies, please contact us.

 

Real Estate Agents and 1031s

According to the National Association of Realtors, in 2017, 60% of all real estate agents in the US participated in one or more 1031 replacement transactions. 

The history of 1031 exchanges goes back to 1921. Most people in the real estate industry have heard of them and seem to have a good working grasp of how they work, and what the requirements are. Occasionally we get calls from someone who has not heard of a 1031 exchange, or has no clue what the rules are. So now would be a good time to do a refresher on the basic rules of an exchange.

People ask, “Why should I do a 1031 exchange?” I can answer this question in two words: “Financial Leveraging.” By doing a 1031 exchange, the taxes you would have paid to the government are now working to earn you money.

A 1031 exchange allows a taxpayer to postpone their long-term capital gains tax when selling an investment property by exchanging both the basis and the gain into a new investment property. This gives an investor financial leverage. If you have a property used for investment or business and you plan on buying another property used for investment or business, then yes, you need to do a 1031 exchange.

In simple terms, a 1031 exchange moves the gain from the sale of an old investment property into the purchase of a new investment property. By moving the gain into a new property, you defer paying tax on that gain into the future.

A 1031 exchange is NOT ‘a-sale-and-a-purchase,’ but an exchange of one property for another. There must be a written exchange agreement that shows that ALL the steps, from the transfer of the old property to the receipt of the new, is part of an overall plan.

For more information, please contact us to discuss your situation.

 

 

DST as a 1031 Solution

A Delaware Statutory Trust (DST) is a legally recognized trust that is set up for the purpose of business, but not necessarily in the U.S. state of Delaware. It may also be referred to as an Unincorporated Business Trust or UBO.

This type of investment structure was created in Delaware in 1947, and in 2004 the IRS issued Revenue Ruling 2004-86 which permits real estate investors to perform a 1031 exchange into and out of a DST that holds title to real estate.  Today, DSTs are used for fractional 1031 exchange investments, offering investors an alternative way to benefit from management-free ownership while still potentially deferring up to 100% of the taxes that would otherwise be due from the sale of an investment property.

DST Investments are offered as replacement property for accredited investors seeking to defer their capital gains taxes through the use of a 1031 tax deferred exchange and as straight cash investments for those wishing to diversify their real estate holdings. The DST property ownership structure allows the smaller investor to own a fractional interest in large, institutional quality and professionally managed commercial property along with other investors, not as limited partners, but as individual owners within a Trust.

DST held properties are passive real estate investments that have professional asset management firms overseeing property acquisition, due diligence, loan sourcing when financing, asset management, property management when not triple net (NNN) leased, and property disposition.

Interests in the trust can be purchased, sold and otherwise transferred without affecting title.  Allowable transfers include donations to charity and transfer to heirs as specified in wills. Also Sellers of their interests in DSTs are eligible to invest the proceeds in other real estate investments via 1031 exchange.

Interests in DSTs are also available to buyers looking to satisfy 1031 exchange requirements.  As with an LLC, DSTs provide liability protection to investors in the trust.  Each DST may own one or more properties, and up to 499 investors may invest in a single DST (though most DST trustees limit the number of investors to fewer than 499).

Investors do not have voting rights over the operation of property owned by a DST.  Instead, a DST trustee (also known as an asset manager or sponsor) maintains 100% of the managerial duties of the asset(s) held by the DST.

For more information, please contact us.

Ritz-Carlton Sarasota Sold for $171 Million

That works out to $643,000 a key!   

Ashford Hospitality Prime, Inc. (NYSE: AHP) on Friday announced that it has entered into a definitive agreement to acquire the 266-room Ritz-Carlton Sarasota in Sarasota, Florida for $171 million, or $643,000 per key.

Ashford Hospitality Prime is a real estate investment trust (REIT) focused on investing in luxury hotels and resorts.  The purchase price for the Ritz Sarasota represents, as of December 31, 2017, a trailing 12-month capitalization rate of 6.0% on hotel net operating income of $10.2 million. The Company expects to realize a stabilized unleveraged yield of approximately 8% on its investment.  On a trailing 12-month basis as of December 31, 2017, the Property achieved RevPAR of $284.38, with 78.1% occupancy and an average daily rate (ADR) of $364.04, according to unaudited operating financial data provided by the sellers.     Read entire story here.

Historic Hotels Achieve a Premium in Income Yield

For investors seeking higher income from the Hospitality sector, CBRE issued their  U.S. Lodging And 2018-2019 Historic Hotels Forecast February 7, 2018.    The outlook for the U.S. lodging industry, particularly historic hotels,  which can include Bed & Breakfast properties above 8 rooms, continues to be extremely strong.  The Historic Hotels Of America Annual Conference was held Sept 28, 2017.

U.S. Hotel Sector Hosts Promising Results

According to STR, the U.S. hotel industry saw occupancy increase 1.4% to 56.4% during the week of 28 January to 3 February, while ADR rose 2.2% to $122.35 and RevPAR increased 3.6% to $69.05.  STR is a source for industry data benchmarking, analytics and marketplace insights. www.str.com 

The U.S. hotel industry reported positive year-over-year results in the three key performance metrics during the week of 28 January through 3 February 2018, according to data from STR.  In comparison with the week of 29 January through 4 February 2017, the industry recorded the following:

  • Occupancy: +1.4% to 56.4%
  • Average daily rate (ADR): +2.2% to US$122.35
  • Revenue per available room (RevPAR): +3.6% to US$69.05
  • Super Bowl LII host, Minneapolis/St. Paul, Minnesota-Wisconsin, reported the largest increase among Top 25 Markets in each of the three key performance metrics: occupancy (+38.3% to 72.5%), ADR (+129.1% to US$241.98) and RevPAR (+216.9% to US$175.51).

Seattle, Washington, posted the only other double-digit lift in ADR (+15.7% to US$152.30), which resulted in the second-highest jump in RevPAR (+20.1% to US$104.17).

Two markets matched for the second-highest rise in occupancy: Philadelphia, Pennsylvania-New Jersey (+8.8% to 57.4%), and Chicago, Illinois (+8.8% to 49.9%).

Affected by comparisons with its Super Bowl host week last year, Houston, Texas, reported the steepest decline in RevPAR (-45.1% to US$73.24), primarily because of the largest decrease in ADR (-42.7% to US$109.76). Occupancy in the market fell 4.1% to 66.7%.

Nashville, Tennessee, experienced the largest drop in occupancy (-4.9% to 61.9%).

San Diego, California, reported the second-largest decreases in all three key performance metrics: occupancy (-4.7% to 70.6%), ADR (-4.8% to US$145.75) and RevPAR (-9.3% to US$102.85).

 

What are Alternative Investments?

  • Real Estate: Tenancy-in-Common, LLC,  LLC Unit or Partnership Interests in Real Property investments, such as hotels, storage, retail and other real estate types.
  • Arbitrage: Simultaneously buying and selling related securities, sometimes in different markets, to exploit mis-priced relationships.
  • Hedging: Investing to offset the risk of price declines using methods such as buying or short selling.
  • Trend-following: Identifying price patterns with profit potential and implementing similar long/short positioning

IMPORTANT RISKS
Alternative investments do not guarantee a profit or protect against a loss.  Sophisticated techniques can magnify a gain or loss, for more information consult your financial adviser, prospectus or private placement memorandum.

What is the “JOBS ACT”?

Typically, when a company raises capital, it has to register its securities (basically the shares/interests that they are offering for sale).  Registration is expensive and takes a long time.  Most companies look for an exemption from registration. The most common exemption used by companies for this purpose is the private placement exemption, which basically meant the companies couldn’t publicly solicit or advertise.

The “Jumpstart Our Business Startups Act”, or the “JOBS Act” changed that.  The JOBS Act allows companies to publicly solicit for funds and advertise while still conducting a private offering.  However, it comes with a major catch.  The only investors allowed to invest must be “accredited investors”, and the company raising money has to verify that their investors are truly accredited investors.

A simple questionnaire is no longer sufficient – instead, companies must take further “reasonable steps” to prove their investors are accredited investors.  Failure to comply is a violation of federal laws and may subject the company to enforcement action and the obligation to return money raised.  That’s obviously bad for companies, but it’s also bad for investors who don’t know if the companies they invested in will suddenly have to return a portion of its capital to other disgruntled investors.

What is an “Accredited Investor”?

An “accredited investor” is a type of investor. Generally, sales of securities must be registered with the SEC unless an exemption is found. Some of the exemptions require sales to be made to accredited investors. Our application lists out the various categories of accredited investor.

The Securities and Exchange Commission also has a helpful page on accredited investors here: https://www.investor.gov/additional-resources/news-alerts/alerts-bulletins/investor-bulletin-accredited-investors

For more information, please contact Paul McIntyre at pmcintyre@namcoa.com