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New Florida Condo Law Puts Limits on Bulk Owners

New Florida Condo Law Puts Limits on Bulk Owners

House Bill 1237 contains purchase, management and disclosure requirements that negatively affect bulk owners. – By Perry C. Rohan, MBA, LCAM, CPM

On July 1st, 2017, Florida House Bill 1237 became effective, adding new provisions and making amendments to existing Statutes contained in Chapter 718 of Florida Condominium Law. The changes were incorporated to provide new rights and legal remedies to traditional residential owners, but some of these same changes will now negatively affect “bulk owners.”

bulk owner is a person who acquires more than seven condominium parcels within the same community. In many instances, the bulk owner is on the board of directors for the community, and in some cases, the bulk owner(s) make up the entire board of directors. With board representation and with a “member vote” for each unit owned, bulk owners can effectively control the entire management and financial functions of a community. In some cases, bulk owners leverage their board positions to create lucrative maintenance or service contracts [with the association] through companies they are affiliated with financially. House Bill 1237 imposes new restrictions and disclosure requirements on such contracts.

Bulk owners will want to pay close attention to four provisions in the bill. First, the bill amends s718.111(9), F.S., to prohibit a board member from purchasing a unit at a foreclosure sale resulting from the association’s foreclosure on its lien for unpaid assessments or taking title by deed in lieu of foreclosure. Since bulk owners often purchase units by these methods, board members who are bulk owners will no longer be able to add to their portfolio in this way. The new statute prohibits the manager and the management company from purchasing association- foreclosed property as well.

Second, the bill creates s718.3025(5), F.S., which prohibits 3rd party vendors providing maintenance or management services to an association, or board members of these 3rd party contractors, from purchasing property subject to lien by the association.  The bill provides traditional resident owners with the right cancel service contracts that may be in place by bulk owners. The statute says if a party contracting to provide maintenance or management services to an association, or a board member of such a party, owns 50 percent or more of the units in the condominium, then the remaining unit owners (the minority owners) may cancel such contracts by a majority vote between them.  This likely does not apply to existing contracts, but will come into play for contracts that are executed after July 1, 2017.

The bill also creates s. 718.112(2)(p), F.S., prohibiting an association from employing or contracting with any service provider that is owned or operated by a board member, any person who has a financial relationship with a board member, or even a relative by blood or marriage. Bulk owner board members, by virtue of their voting power, often carry great influence in decisions made by the board. It is not uncommon for a company affiliated with a board member to win the landscape contract or provide the janitorial service for the community. These “conflicts of interest” are now prohibited, unless the Board member or their relative owns less than 1 percent of the equity shares in the service provider.  For those conflicts that fall below the 1 percent equity threshold, those contracts now require disclosure and there are detailed procedures (see below) for making such disclosures.

Finally, the bill creates s. 718.3027, F.S., providing procedures for disclosure and notice of potential conflicts of interest. The bill provides that an officer or director of an association, and their relatives, must disclose to the board any activity that may be construed as a conflict of interest. A presumption of a conflict of interest exists if, without prior notice:

  • Any director, officer, or relative of a director or officer enters into a contract for goods or services with the association; or
  • Any director, officer, or relative holds an interest in a corporation, LLC, LLP, partnership or other business entity that conducts business with the association or proposes to enter into a contract with the association.

The disclosure requirements now mandate that the entire proposal contract for goods or services must be listed on the agenda of an upcoming meeting, with a copy of all related documents delivered to the unit owners. At the board meeting, the board member with the affiliated business interest can make a presentation but must leave the room and is thereby recused from the vote. Procedures for withdrawal of proposal or resignation of the board member are further prescribed. Lack of proper “notice” of said meeting renders the contract voidable, and the contract can be terminated by 20% of the voting interests of the association.

Bulk Ownership of condominiums was authorized by the Florida Distressed Condominium Act of 2010, in an effort to help rescue communities from financial ruin. Since that time, bulk owners have purchased thousands of units, some of them at bargain prices, and now seven years later, most condominium

“The Florida Distressed Condominium Act was essential to the recovery of Florida’s condominium market”, says Carlos R Arias, Partner with Arias Bosinger, PLLC. “Unfortunately, Governor’s Scott veto of HB 653, which would have permanently extended the Act, and the Florida legislature’s imposition of strict conflict of interest laws will make it more difficult for distressed condominiums find the same relief moving forward”. 

Further research and proper due diligence is now needed to assess how bulk owners will continue to thrive as these new laws place limits on their abilities to acquire property and manage the affairs of the association.

The information contained herein is not intended to be, and should not be, construed or used as legal advice. The contents are intended for general information purposes only, and you are urged to consult with counsel concerning the effect any proposed legislation may have on your association or other legal questions you may have.

Perry C. Rohan, MBA, REALTOR, CPM is the Managing Broker/Owner of Rohan Realty Associates. He can be reached at 

Investment Opportunities within Association-Controlled Communities (Part II)

Investment Opportunities within Association-Controlled Communities

How to spot Red Flags when reviewing the operating environment of the community.

Investment Opportunities within Association-Controlled Communities
How to Spot Red Flags when Reviewing the Operating Environment of the Community

Part 2 of a 2-part series – By Perry C. Rohan, MBA, LCAM, CPM® 

Many of today’s real estate investors are finding their opportunities inside of condominium or homeowner association-controlled communities. It is important to understand that these communities have a wide-range of rules, regulations and restrictions that are designed to protect the lifestyle of the residents who live there – And these conditions can make being a landlord easy money or can turn your dreams of rental riches into a living nightmare. This article intends to help you, the residential real estate investor, understand and evaluate the operating environment of condominium and homeowner associations, from the perspective of running a rental business inside one of these association-controlled communities.


When a real estate investor buys into an association-controlled community, the investor is agreeing to abide by the rules, regulations and restrictions of that community. This is what we refer to as the Operating Environment – the terms under which the investor will have to follow, in order to operate a rental business inside the community. These terms are all available for review and understanding, but you have to know where to look to be able to make an informed decision.

Covenants, Conditions & Restrictions (CC&Rs) – Otherwise known as “The documents”. You will probably receive an initial set of these documents from the real estate agent (or the seller) from whom you are purchasing the property. It is important that you get on-line with the clerk of the county court where the property is located, and find any and all amendments to these documents. The original documents may have been created years ago, but the amendments through the years will modify the original documents. You have to review just about everything in here so find a comfortable chair and start reading, watching for things that will be important to you and your rental business, such as:

  • What are you responsible for and what is the association responsible for?In a condominium, for example, unit owners typically have responsibility for the interior (drywall) or in some cases, just the paint on the drywall. Many condominiums are responsible for the roof and exterior walls, and of course, all the common walk-ways, roads and other elements of the community.
  • What type of insurance do you need?The paragraph above will help determine that, but so will an understanding of what the documents say with regard to describing what the association insures within your unit(s). This is important – The most frequent issue between the association and neighboring residents, is water leaks. How does the association handle a water leak between units? Who is responsible for what? This is all spelled out in the documents and can determine the extent of the insurance coverage an investor will need for the property.
  • What else has been amended through the years?We have seen amendments requiring no storage other than cars within garages. Amendments that added language requiring capital contributions by new purchasers, or amendments requiring that seller first offer their unit for sale to the association. Red flags in this area would be anything that makes it harder for an investor to operate their rental unit or sell their property at a later date.
  • What are the rules on rentals in the community?This seems an obvious research item, but many communities have added amendments through the years to change the original language in the documents. Some communities began with a lot of flexibility in rentals, then as the economy changed and rentals proliferated, board members began changing the rules, making it more difficult on landlords. Some communities allow rentals but require tenant approval. Some communities allow rentals only after one (or two) years of ownership. This is your business so you have to be clear on what the rules are.
  • What are the requirements or specifications on pets?As a landlord, it is a double-edged sword as to whether allowing pets in your unit is a good idea or bad. Pets allow you to charge a little more for rent, but also often cause a little more damage to the unit. But for an association, the rules on pets are important to understand. For example, if an association doesn’t have any pet restrictions, in many cases, this could be a red flag. Think about it, an association without restrictions on pets means that tenants with vicious breed dogs will be attracted to that community. If you are an investor who wants tenants with vicious breed dogs, then this is perfect for you. But if you are not a fan of these dogs, or you think it might be harder to rent your property without restrictions on pets, then you will want to avoid these communities.


 Increasing rules on rentals and control of tenants. Condominiums that require unit owners to carry too much insurance. Pet policies that do not agree with your investment objectives.


Articles of Incorporation/By-Laws: As a legally formed association, the entity is required to form as a not-for-profit corporation, and therefore, must have by-laws describing how this corporation operates. Areas of potential concern to real estate investors include:

  • Who has the power?In some cases, the developer of the community is still in control of the board of directors, and the by-laws will specify how control of the association is turned over to the residents. The by-laws might also specify how voting rights are distributed between developer and residents. Communities that no longer have a developer on the board have probably turned over to the residents, which leads to other questions such as follows.
  • Who can be on the board and how many board members can you have?How does one get removed from the board? This is a big area of concern for most real estate investors. Who can be on the board is usually the owner of a unit within the community. But what if you are a bulk owner and you have 20 units in the community? Does that equal 20 votes? What if you are a corporate owner and want to be on the board, but just don’t have the time? Do the rules of the association allow for a “corporate representative” to be on the board? Knowing the procedure by which a board member can be removed is also important, as in some cases, it is as easy as a majority vote by the other board members. If this is your rental business you are protecting it by being on the board, then this information is very important to your decision process.
  • How is quorum established?Quorum is defined as the number of board members “present” in which a legally permissible meeting can be held, and in which resolutions can be made. Watch for deviations from the norm – Anything less than “a majority of the board of directors is necessary for quorum” as a red flag.
  • What are the rules for amending the documents?Most communities require a vote of the majority of the members (that means 50% plus 1), other communities require 2/3 of the voting membership, which makes changing the documents harder. Remember, changes in the documents [in the future] can cause problems for real estate investors if these changes affect their rental business.


Limitations on real estate investors becoming board members. Restrictions imposed by developer-controlled association communities.


Association Minutes: These are the records of board actions and decisions (resolutions) made over time and are an essential element of the files of the association. Associations are required to keep these records for a period of years (7 years in Florida – May vary by state). Review the last year or two of minutes and try to learn more about the business decisions being made by the board of directors, and assess their impact on you and your investment objectives.

  • Is the board regularly reacting to maintenance and repair situations?
  • Is the board proactively managing maintenance and repair projects?
  • Are there legal issues that seem out of control?
  • Are there excessive homeowner complaints and what are they?

Reviewing the minutes of the association about which you are to enter, will give you a good idea if this is the type of community you want to run a rental business in. While there are no pre-defined red flags (as each situation is different), your understanding is vital to the success of your rental business.

Rules & Regulations: Here is another area where there are no pre-determined red flags, but understanding what rules & regulations are in place, can help you spot potential problems within an association-controlled community. For example, if there are extensive rules on pets, pet waste, pets on leashes, noise from pets, etc., it’s a good bet that the community is having issues with pets.

In many communities, you will probably find rules and regulations concerning tenants, in fact, there may even be a whole separate set of policies and procedures about rentals and how tenants are to behave. Many landlords do not like association rules that require tenant approval [by the board] or associations that have the right to remove tenants for not following the rules, but I think these requirements are actually a benefit to landlords as a whole. Think about it…. If an association approves tenants for residency in the community, then theoretically, you have a tenant with a clean background and one who obeys the rules within the community. Therefore, the community is not overrun by tenants who are out of control, and the community lifestyle remains good. Then when it comes time for the landlord to sell, the quality of the “product” should be better, and the landlord maximizes return on the investment.


The business of investing in residential income properties can be challenging. Property must be purchased, mortgaged, insured and maintained, all within a cost structure that falls below income received from rents. Add to this the complexity of operating a rental business inside an association-controlled community where the investor is impacted by rules, regulations and restrictions that govern just how an investor can operate a rental business. It is important to understand the operating environment inside of a community, before making an investment in that community.

About the Author:

Perry C. Rohan, MBA, REALTOR, CPM is the Managing Broker/Owner of Rohan Realty Associates. He can be reached at

Investment Opportunities within Association-Controlled Communities (Part I)

Investment Opportunities within Association-Controlled Communities

How to Spot Red Flags when Reviewing Association Financial Information


How to Spot Red Flags when Reviewing Association Financial Information
Part 1 of a 2-part series – By Perry C. Rohan, MBA, LCAM, CPM® 

Many of today’s real estate investors are finding their opportunities inside of condominium or homeowner association-controlled communities. It is important to understand that these communities are directed by volunteer residents, many of whom no prior experience applicable to their roles as board members. Consequently, the financial stability of these associations are inconsistent at best, so it is important to closely review the books and records of an association before making an investment in that community. This article intends to help you, the residential real estate investor, understand and evaluate the financial health of condominium and homeowner associations, from the perspective of running a rental business inside one of these association-controlled communities.


A community association is a business. It generates income, pays its bill and hopefully has a little money left over at the end of the year to help fund special projects or make emergency repairs. Just like an investor would probably do extensive research before buying stock in a public company, real estate investors should be fully informed about the financial health of a community association, before purchasing a property within it. Here are some financial documents to review and what to look for:

Operating Budget: Represents projected income and expenses for each year. You will probably want to review the last 3 to 5 years if possible as well as the current (or upcoming) year.

  • Look for changes in assessments. A healthy association has small, regular increases in assessments every few years. An association with large jumps in assessments each year may indicate issues with emergency repairs or deferred maintenance that finally caught up with the board. Associations without any recent changes in assessments could indicate an under-funded maintenance and repair budget which could require a “special assessment” that you will be on the hook for if you buy into this community.

Large year-over-year increases in assessment fees or no increases in assessment fees for many years.

  • Review the line items in the budget. You will probably see things like legal & collection fees, allowances for bad debt and/or contingency. If the amounts budgeted in these categories are high, for example, greater than 10% of the total assessment income, then this association is probably having a difficult time collecting assessment fees from its owners, or is not able to properly anticipate future events. This situation could create a short-fall in the budget which would spell trouble for you and the rest of the paying owners in the community.

Large budget allocations for uncollected assessments, legal collections and/or contingencies.

  • Analyze Reserve Transfers.A healthy and well-run association will transfer money regularly into a separate bank account called a “Reserve Bank Account”. The reserve account is money set-aside to make repairs to, or replacement of, major items such as roads, gate entry systems, pool & clubhouse, roofs, landscaping overhauls, etc. Some homeowner associations do not have reserve accounts so in these situations, you have to dig a little deeper. Does the association need a reserve account or is there is nothing in that community that requires major repair or replacement by the association? Some condominium associations have specifically opted to “waive reserves” and therefore, are not putting any funds aside for major repairs. Communities without proper reserve funds will ultimately require residents to pay for repairs and or improvements via a special assessment at some point in the future.

No reserve fund when there should be a reserve fund, or there is an under-funded reserve fund.

  • You should see a large allocation for insurance on the budget. You may not know what type of insurance is in place by looking only at the budget, so you will want to review a current insurance certificate so you can see exactly what insurance policies are in place and what level of $ coverage for policies are specified. An adequately protected community association should have insurance coverage in place for commercial general liability, directors and officers, workers compensation, crime or a fidelity bond, and an umbrella policy. Depending on where the association is located, additional insurance for unforeseen disaster events (i.e., hurricane, flood, tornado, etc.) should also be in place with limits that adequately protect the association.

No funding for insurance. Insurance coverage is limited, policies expired or not adequate to properly protect the association in the event of a loss.

Balance Sheet: Represents the list of assets and liabilities of the association. Just like any business enterprise, there is also an Owners Equity section which collectively represents the group of homeowners in this community. Again, you want to review the current data but also try to go back a few years so you can understand what has happened in the past. Look for the following:

  • Cash on hand.This line item should be separated in to multiple accounts. You should see an Operating Account(s) and a Reserve Account(s). Review the operating account and see if there is enough money in that account to cover three (3) months of operating expenses in that bank account. If there is less than 3-months of “back-up” cash, then this could become an area of concern. What would happen if a hurricane hit the area or a fire or flood, or the major employer for the area suddenly closed and half the community stopped paying their assessments? Associations are not allowed to dip into reserves to pay regular bills. Healthy associations have cash-on-hand to see them through emergencies.

Less than 3-months of cash on hand to cover operating expenses.


  • Accounts Receivable.This is the amount of money owed by homeowners to the association by residents. What is the % of the annual assessment income that this accounts receivable amount represents? Is it 5% or is it 25%? A healthy association will usually carry no more than 5% to 8% of its annual assessment amount in an accounts receivable balance. However, high accounts receivables do not always tell the entire story. Some associations may have high accounts receivables as a percentage of assessment income, but it may be only one or two residents that account for most of the delinquencies. You will have to make a judgement call here.

High accounts receivable balance relative to the annual assessment income.

  • Liabilities Section. A liability on a balance sheet is simply a “snapshot” of what bills may be outstanding at that moment in time. However, you should review this closely to be sure that the amount is reasonable. Also, and we have seen this in many cases, an association may have borrowed money in the past to make some kind of large repair or improvement. This debt would appear on the balance sheet and should also be reflected on a subsequent schedule outlining the original amount of the loan, hopefully with an amortization schedule showing when the loan will be paid off.

Liabilities too high relative to the annual assessment income.


Income & Expense Statement: This may be a single year statement or month-by-month report showing what happened in each month as the year progressed. Either way, you want to closely review a report that shows columns for “Actual”, “Budget” and “Variance” so you can see a true picture of what is happening. Look for the following:

  • Large Variances.Healthy associations budget accurately and are usually paying their bills within a reasonable range from their budgeted amounts. Associations in trouble are frequently going over budget on many of their line items and some of these expenditures represent major issues to be concerned with. For example, frequent overages in legal fees and collection write-offs indicate trouble collecting fees from homeowners. It could also represent liens and foreclosure issues with the properties. Regular overages in maintenance and repair items is cause for concern that there has been a trend in deferring maintenance and there is no telling if or when that situation might end.

Large negative variances between budgeted and actual expenditures.


Reserve Schedule: A detailed review of individual association components, including their life expectancy and anticipated replacement costs. The Reserve Schedule also shows how reserve funds are allocated to those specific association components. Note: Not all reserve schedules are the same. Look for the following when reviewing reserve schedules:

  • Is reserve funding straight line or is it pooled?Straight line reserve funding is when there is a specific amount of reserve funds tied to specific items. For example, there is $15,000 set aside for the gate, $10,000 for a clubhouse roof and $60,000 to repave the roads in the community. Straight line set-asides cannot be changed, so you cannot take the $10,000 from the clubhouse account and use it for something else. Pooled funding is just one big dollar amount that can be used for whatever item needs to be repaired or replaced. Pooled reserves are much easier for the board to manage, however, it can lead to short falls in funding necessary projects, unless a proper reserve schedule is followed.
  • When was the last official reserve study performed?Prices for repair and replacement change all the time. Additionally, life expectancy of association components (i.e., roofs, roads, etc.) can change over time or as a result of damage. Healthy associations fund a reserve study on a regular basis, and in some states, Florida for example, condominium associations are required to fund a study every three years. Check the reserve study of your target association. See if it makes sense to you. You will probably want to drive through the community to review things, like if the reserve study says the roads have 10 years left on their life, but you see pot holes and cracks all over the place could spell trouble for a real estate investor.

Pooled reserve funding in when there are many components requiring reserve funds; No reserve study; reserve study not being followed or not realistic.



The business of investing in residential income properties can be challenging. Property must be purchased, mortgaged, insured and maintained, all within a cost structure that falls below income received from rents. Add to this the complexity of operating a rental business inside an association-controlled community where the investor is not in control of the association’s finances, but can be negatively impacted by them. Therefore, it is important to understand the financial environment before you make an investment in any association-controlled community.

About the Author:

Perry C. Rohan, MBA, REALTOR, CPM is the Managing Broker/Owner of Rohan Realty Associates and can be reached at 

3 Things to Know Before Buying a Rental Property

3 Things to Know Before Buying a Rental Property

By Patrick Morris| October 20, 2013 | The Motley Fool

In the name of diversification, many will seek to spread their assets across a variety of different investment platforms, and rental properties can be an attractive alternative.

For this purpose, I recently sat down with Forde Britt, a commercial real estate broker with the Nichols Company in Charlotte, NC, who is well versed in many facets of the real estate industry. He is also an owner of rental property in his neighborhood near downtown Charlotte.


At first glance, buying a rental property can seem like an appealing investment opportunity. For example, if someone bought a four bedroom home for $200,000 with a $40,000 down payment, at today’s rates, their 30-year mortgage payment would be right around $1,050 a month.

Charging $450 per bedroom would mean that property could be rented out for $1,800 a month. It’s a good rule of thumb to expect an 8% monthly management fee and an estimated 10% loss of income due to vacancy and maintenance expenses. So roughly 20% of that $1,800 will be taken off for expenses — but all in all, the owner could expect to net about $475 in his pocket each month.

Even if rent increased by just 1% per year after 30 years, the owner would collect $750,000 in rental payments, and pay a total of $375,000 in mortgage payments. If the value of the house just grew by 1%, the house would be worth almost $266,000 at the end of 30 years.

Provided the owner sold it after 30 years, he would have netted almost 2,100% return on their initial investment of $40,000 over the 30-year period, even after accounting for the 18% costs. That works out to a compounded annual return of roughly 10.7%.

Now, before you click over to Zillow to look for rental properties to buy in your area and run to Wells Fargo to get a mortgage — it’s important to note that a 2,100% return over a 30 year time horizon is eye-popping at first glance. But if you take that same $40,000 investment and put it in the S&P 500, at the historical average return of right around 8% per year, your return after 30 years would be roughly 900%. And remember, that number also excludes any potential major repairs or other expenses associated with owning a home.

In my conversation with Forde, he highlighted three things that anyone considering an investment in a rental property should keep in mind before they buy a home with the intention of renting it out.

1. You make your money when you buy it Forde noted, “The best principle to have in any real estate transaction is that you make your money when you buy it, not when you sell it — because if you pay too much for it, you’re never going to make money.”

Since many people who buy investment properties often don’t buy one in their same neighborhood, or even in their same city, it’s easy to be lured by what is perceived to be a good deal in an unfamiliar market. Yet just because a home is less expensive than those around it, or in an area on the “rebound,” doesn’t mean it’s worth investing in.

Often, investors see a home at a low price and think they’ve found a great deal, but you must do your research and your homework on the area to truly evaluate whether or not it’s a good investment.

2. Know your worst-case exit scenario Investors in any situation can be lured into thinking that only the good things will happen, and that’s what they plan for, but it’s vitally important to have an exit plan, too.

Source: Inha Leex Hale.

While investing in a rental property can certainly be a profitable and worthwhile investment — don’t allow it to be such a large part of your portfolio that losing returns from it could ultimately bring you down with it.

Forde wanted to highlight how critical it was to have an exit plan if “all of your assumptions don’t work out.” For example, if the home is unoccupied for a few months, the $800 monthly income instead turns into a $1,000 expense very quickly — and that could result in dire consequences if the investor isn’t prepared.

3. Be ready for the unexpected With any investment decision — and almost any decision at all — things can quickly take unexpected turns. For example, if the HVAC unit and the water heater each go out on the same day, repairs could be north of $10,000 — wiping out an entire year’s worth of profit. In this, investors must see that houses can be great investments — but are often full of unseen costs that correspond with them. Being both prepared and able to address those issues when they present themselves is critical.

While rental properties can be great investments, like all investments, their returns also correspond to their risks — and now you have one expert’s opinion on what to keep in mind before you make that critical decision to invest in one.

IRS Provides Guidance on Using Tenancy-in-Common Interests in 1031 Exchanges

IRS Provides Guidance on Using Tenancy-in-Common Interests in 1031 Exchanges

by Ronald L. Raitz, CCIM

On March 19, the Internal Revenue Service released Revenue Procedure 2002-22, which addresses the use of real property fractional ownership interests as replacement property in Internal Revenue Code Section 1031 tax-deferred exchanges. Commercial real estate professionals commonly refer to these fractional ownership opportunities as tenancy-in-common interests.

The potential advantages of using fractional ownership interests to complete a 1031 exchange are significant for both investors and their advisers. Tenancy-in-common interests offer increased opportunities to identify a replacement property within 45 days, the option to buy into institutional-grade product for less money, and the potential to diversify into multiple properties with fewer dollars.

Like-Kind Exchange Primer Under Section 1031, property owners may defer gain recognition on a sale by exchanging for like-kind property; however, they must meet numerous requirements to complete a successful exchange.

In order to achieve 100 percent tax deferral, the cost of the replacement property must be equal to or greater than the net sales price of the property being sold, and all the proceeds must be used. Further, the seller must identify a suitable replacement property within 45 days of the relinquished property sale. Finally, the seller must take title to the property he ultimately buys in the same manner in which he gives title to the property he sells.

In the past, tax professionals and other investment advisers were wary of recommending fractional interests as replacement properties because the IRS often considered the investor’s interest in the new property to be a partnership, thereby invalidating the exchange. Along with partnerships, Section 1031 prohibits owners from exchanging out of real estate and into a corporation or limited liability company.

This concern often prevented investors from buying shares of larger and potentially more attractive properties. In response to the need for high-quality replacement property in a range of prices, a niche group of companies began offering tenancy-in-common interests to complete 1031 exchanges. To meet the title requirements, investors receive a deed for a portion of the property, rather than a share of a partnership. To encourage referrals, many tenancy-in-common program sponsors offer referral fees ranging from 1 percent to 6 percent of the equity value placed in the product.

Fundamentals of the New Guidelines Rev. Proc. 2002-22 provides guidance on the use of fractional interests as replacement properties in 1031 exchanges. Although the IRS did not provide the ultimate safe harbor blessing for these investments, it outlined 15 minimum standards tenancy-in-common interests must meet to be considered as potential replacement property. A few of the key criteria are:

  • the number of tenants-in-common cannot exceed 35;
  • the sponsor of the interests may own the property (or an interest therein) for only six months before 100 percent of the interests are sold;
  • any decision that has material or economic impact on the property or its owners must be approved unanimously by the owners; and
  • the management agreement must be renewable annually and must provide for market rate compensation.

For the complete listing of requirements, visit the IRS Web site at Investors should seek private-letter rulings on specific offerings for more concrete assurance that their fractional interest meets the specified qualifications.

Some investment advisers have found that recommending properly structured tenancy-in-common programs can result in a win-win situation for all parties. For example, one of your clients owns a small apartment building that requires an inordinate amount of time to manage. As he nears retirement, your client receives a $750,000 offer on the building and wants to exchange into an institutional-grade investment. With the amount he will be able to invest from the sale, your client doesn’t think he can afford a high-quality investment offering a strong yield and greater appreciation potential. However, in this scenario, your client should consider a tenancy-in-common program that complies with the recent IRS ruling. With his sale proceeds, your client feasibly could exchange into a 15 percent interest in a class A office building worth $5 million.

The new guidelines also open the door for investors who want to structure fractional interests in a desirable replacement property on their own. For instance, Jennifer Reed owns a high-quality rental property in suburban Atlanta worth $500,000. She notices a small strip shopping center for sale in the area and, after some due diligence, discovers the center can be purchased for $1.5 million. Though individually she cannot afford the center, she has two friends who would like to invest a portion of their portfolio in real estate. The three decide to purchase the property together. When Jennifer sells the rental property, she exchanges all of the debt and equity from the sale for a one-third interest in the shopping center as a tenant-in-common. The other two investors provide the balance of the funds necessary to close the deal.

Proceed With Caution As tenancy-in-common programs are in their infancy, commercial real estate professionals should review them carefully before advising clients to consider them as viable replacement property options. Because all programs are not created equal and may have been structured prior to the release of Rev. Proc. 2002-22, careful due diligence is essential. As more sponsors modify their programs to seek and receive private-letter rulings certifying compliance, less due diligence will be necessary.

Whether for groups sponsoring fractional interests or creative investors looking to pool resources into a larger property, the new IRS guidelines are good news for the commercial real estate industry. For investment advisers, this guidance provides exciting new options for clients who don’t want to forego the benefits of a Section 1031 tax-deferred exchange.

Consult a tax professional for further information on individual cases.

Tenants in Common Defined

What Is Tenants in Common?

One way for more than one person to hold property

By Moshe Pollock of Realtor.Com
There are various forms of property ownership. Tenants in common (or tenancy in common) is one of these. While the term “tenants” might imply renting, tenants in common are the owners of the property. There is no maximum number of persons who can be tenants in common, and the tenants do not have to hold equal shares. For example, one tenant in common can own 75 percent of the property and the other tenant can own 25 percent. Such an arrangement frequently reflects the portion of the purchase cost the respective tenants paid.

Features of tenancy in common
Typically the tenants sign a tenancy in common agreement that sets out the percentage of ownership for each party and other relevant matters. This is significant, because each tenant is able to sell his or her shares separately. Also, unlike joint tenancy, tenancy in common does not involve the right of survivorship. This means that in tenancy in common, each tenant’s interest does not pass to the other tenants upon death. Each tenant can bequest his or her interest by will and if there is no will, the interest passes by applicable law.

No matter what the ownership percentage of the tenants, all tenants in common have the right to possess and to have access to the property. Even if just one tenant resides in the property, he cannot exclude other tenants from entering it. The tenants are each responsible for the mortgage, taxes, maintenance and other necessary expenses. But these costs are apportioned based on the percentage of ownership.  

Advantages of tenancy in common
Tenancies in common can be created relatively easily through a simple written agreement. Similarly, the tenancy can be terminated readily in one of several manners. The tenancy can be dissolved by the tenants agreeing to sell their shares to one of the tenants. All of the tenants might sell their interests to someone who is not already a tenant. Each tenant is free to sell his or her interest to someone outside the tenancy. That purchaser would then join the tenancy in common. The individual percentage of the tenant’s contribution to the purchase price can be reflected in the ownership interest.
Tenancy in common disadvantages
Because each tenant’s interest can be passed on to the heirs, the remaining tenants may be forced to continue ownership with an undesired party. An heir might want to sell the property when the other tenants do not. A tenant’s sale of his or her interest to an outside party might also result in an unwelcome tenant in common. If the tenants cannot agree upon to whom to sell the property, there could be problems. In all of these situations, the tenants would need to turn to the courts in a partition action. A partition action involves asking the court to sell the property and to divide the proceeds among the tenants. It might result in one of the tenants buying the shares of the other tenants. In some cases, such as vacant land, it might be possible to divide the property, giving each tenant his or her own piece. In any case, partition actions are frequently lengthy, unpleasant and expensive.
Final notes on tenancy in common
Tenancy in common is one way of owning property that protects each purchaser’s interest. Each tenant holds an individual, separate share of the real estate as a whole. But there are legal ramifications of ownership by tenancy in common that might not be desirable in every situation. When considering tenancy in common as the form of ownership, purchasers should consider all the implications and obtain advice from knowledgeable professionals.

1031 Exchange – Information from the IRS

Like-Kind Exchanges – Real Estate Tax Tips

Generally, if you exchange business or investment property solely for business or investment property of a like-kind, no gain or loss is recognized under Internal Revenue Code Section 1031. If, as part of the exchange, you also receive other (not like-kind) property or money, gain is recognized to the extent of the other property and money received, but a loss is not recognized.

Section 1031 does not apply to exchanges of inventory, stocks, bonds, notes, other securities or evidence of indebtedness, or certain other assets.

Like-Kind Property

Properties are of like-kind, if they are of the same nature or character, even if they differ in grade or quality. Personal properties of a like class are like-kind properties. However, livestock of different sexes are not like-kind properties. Also, personal property used predominantly in the United States and personal property used predominantly outside the United States are not like-kind properties.

Real properties generally are of like-kind, regardless of whether the properties are improved or unimproved. However, real property in the United States and real property outside the United States are not like-kind properties.

Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury Regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury Regulations, or other official tax guidance, visit the Tax Code, Regulations, and Official Guidance page. To access any Tax Court case opinions issued after September 24, 1995, visit the Opinions Search page of the United States Tax Court.

Page Last Reviewed or Updated: 2013-01-04

Video – How does a 1031 Exchange Work?

1031 Exchange Explained

1031 Exchange Explained

 By Wilhelm Schnotz


1031 Exchange Explained thumbnail 

<:figure>A 1031 exchange helps defer gains taxes on the sale of a property.

For real estate speculators and families who live in areas with an expensive real estate market, capital gains can pose a significant tax burden, particularly if real estate was held for a long time or through a volatile time in the market. Although it’s impossible to completely avoid capital gains assessments, a 1031 like-kind exchange allows property owners to sell one property and purchase another with the proceeds, and, if handled correctly, shields investors from immediate gains taxes.

    • The Internal Revenue Service allows investors to liquidate one property and exchange it for one of a similar kind — all domestic real estate qualifies as like-kind — and postpone gains taxes from the original sale. To qualify for a 1031 exchange, taxpayers may not take possession of the money generated by the sale of the property. To do this, investors must simultaneously sell the old property and purchase the new one, or route their funds to a qualified intermediary so they don’t take possession of the money, even if it’s reinvested in the new property. Any personal acquisition of the funds, even if it’s momentary, incurs gains taxes.

    Maintaining Equity

    • A 1031 exchange is only valid if the property owner’s equity in the new property is equal to or greater than that of the old property. Because of this, investors may not cash in equity on their old property during the exchange, though they can invest more into the new property.

    • Qualified Intermediaries
    • If property owners don’t simultaneously sell and purchase the properties involved in the 1031 exchange, a qualified intermediary — a real estate broker — must serve as a go-between for the sale and purchase of the properties. Money gained through the sale of the original property is placed into an exchange account managed by the intermediary, so taxpayers never come in direct contact with the funds.

    Time Frame

    • Property owners must identify one to three potential properties to purchase within 45 days of the original sale if a qualifying intermediary holds the funds. The exchange must be completed, with a new property purchased, within 180 days of the sale of the original property or by the date the taxpayer’s taxes must be filed.

    Reverse Exchanges

    • In the case that a taxpayer purchases a replacement property before the original one is sold, a reverse exchange may be engineered. Amendments to 1031 rules were introduced in 2000 to allow a safe harbor for reverse exchanges in this situation.

    Tax Basis and Gains

    • A successfully executed 1031 exchange allows a taxpayer to avoid paying gains on the sale of the original property, but those gains are only deferred to a later date. When a property purchased as part of a 1031 exchange is sold, its tax basis is calculated as the gains between the original property and the final one’s sale price. For example, an investor purchases a property for $100,000, and sells it as part of a 1031 exchange for $150,000, and purchases another property for $200,000. When that property is sold for $220,000, the investor’s tax basis is the difference between the purchase price of the original property and the sale of the second one. This investor faces gains taxes on $120,000 ($220,000 – $100,000) in this situation.

Wilhelm Schnotz has worked as a freelance writer since 1998, covering arts and entertainment, culture and financial stories for a variety of consumer publications. His work has appeared in dozens of print titles, including “TV Guide” and “The Dallas Observer.” Schnotz holds a Bachelor of Arts in journalism from Colorado State University.

Read more: 1031 Exchange Explained |


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