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A 1031 exchange provides investors an opportunity to defer tax consequences that come from the sale of an investment property and, when executing a valid exchange, rules and procedures must be followed that are set forth by the Internal Revenue Code. The requirement in focus is the need of like-kind replacement real estate and the use of a Delaware Statutory Trust (DST). A DST allows investors to own a "fractional interest" in high quality institutional real estate acquired and managed by large professional real estate firms. DST investments are combined to create a diversified portfolio of passively owned income producing property for accredited investors.
DST Investments have many positive attributes, although they are not a good fit for all investors. Part of selecting a DST, is to ensure risks are understood. No investment is 100% risk free, and DST's are not an exception. Properly understanding the investment process can create a situation that provides an investor with positive cash flow, relief of property management, and a successful investment experience. While the below points capture some risks that need to be discussed, they are not limited to these topics. There are some operational restrictions to help mitigate risk, on how a DST can operate which are noted as, "Seven Deadly Sins", below.
A sponsor is a person or entity that creates a DST to hold real property and arrange for the issuing of beneficial interest to investors. The sponsor typically manages the property on behalf of the investor group during the investment hold period and sells the property at the end of the period. Sponsors that focus on DST investments will create the DST legal entity that will own the property, become the "Master Tenants" of the property (sub-leasing to the actual physical property tenants), and act as the DST signatory trustee.
Who is the sponsor and what is their track record can often be one of the more important pieces of information when selecting a DST investment. While the internet is a wonderful resource for information on the sponsors, every offering memorandum includes the sponsors prior performance, providing yet another tool for investors to use in their assessment. Always beware however, that past performance does not guarantee future results.
DST's are real estate at its core, and the risk of investing in any real estate applies here. The sponsor company spends a significant amount of time and resources on the due diligence. DSTs are issued through the securities world, which adds additional layers of due diligence and review from third parties. There are a lot of eyes on these assets and the structure, but taking the time to understand the property can create a better experience.
There are many benefits to investing in a DST, such as diversification, regular distributions, and no property responsibilities. With a DST, investors can still enjoy the benefits of owning real estate without dealing with the day-to-day landlord activities. Although this may be a plus for some, others do not want to give up their management responsibilities. With a DST, investors do not have operational control, and do not make management decisions. Major decisions, like when to sell the asset in the DST, are made by the asset manager and sponsor company. An investor needs to weigh the positives and negatives based on their individual situation, to decide if it is the right investment.
With any investment, there is always a cost. A DST has three major phases. Acquisition, operations and disposition. Each phase will incur its own fees. As real estate investor's operational cost and disposition fees are not out of the ordinary, you may find some upfront fees, referred to as "load", need explanation. The load in a DST, which may include commissions, Broker Dealer Allowances, offering and organization cost, financing fees, etc. are all capitalized into the DST/Investor transaction. Engage with a Trusted Advisor to understand the application of each invested dollar in a DST. The fees and costs associated with the DST investment provide the benefit of being able to invest in institutional investment grade, professionally managed real estate that, in most cases, would not be accessible to individuals.
Real property being held under a DST, is eligible to use a 1031 exchange, without the recognition of gain or loss. as long as it meets the following seven restrictions:
1. Once the offering is closed, there can be no future equity contributed to the DST by any co-investors or beneficiaries.
2. The Trustee of the DST cannot renegotiate the terms of the existing loans, nor can it borrow any new funds.
3. The Trustee cannot reinvest the proceeds from the sale of its assets.
4. The Trustee is limited to making capital expenditures with respect to the property to those for (a) normal repair and maintenance, (b) minor nonstructural capital improvements, and (c) those required by law.
5. Any liquid cash held in the 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 investors or beneficiaries on a current basis.
7. The Trustee cannot enter into new leases or renegotiate the current leases.