There are many real estate investors attracted to Tenant-In-Common (TICs) for the purported tax savings through the like kind exchange provisions in the IRS code Section 1031, which allows for the investor a deferral of capital gains. Up until 2013, the capital gains rate was only 15%. Investors need to calculate the net amount of real estate that they are actually acquiring when they buy a Tenant-In-Common investment because many times it is less than 80% and the investor would net more money by paying the taxes.
Also, a factor to consider is that a TIC investment is really just a creative way to finance a real estate transaction that results in 1031 investors acquiring significantly more real estate than they needed to accomplish the like kind exchange. For example, if an investor sells 2 multi-family units and has $500k in proceeds, all the investor needs to do is purchase $500k or more in like kind real estate to qualify under section 1031. However, many TIC deals are highly leveraged and the $500k they use to buy into the property is usually encumbered by a pro rata share of a mortgage, which is typically 3 times the investment and the investor will end up with 4 times the amount of real estate they need to effectuate their 1031 exchange.
Securities Lawyer, Lars Soreide, points out that, “One of the errors investors make in TIC cases is to assume that the unit value of the investment equals the property value divided by the units.” When TIC cases are litigated, “many of these cases bog down in property valuation when in reality the issue in not the property value but the investment value, which is next to worthless even if the property has residual value. Think of this way, who would buy a unit in this investment given that the purchaser would have to take on 150% on additional debt, give up all property rights to become a tenant in common that is worthless as collateral and cannot be turned into cash? Given the structure of ownership with loans with covenants signed by the sponsor and cross collateralized usually, property value is secondary in these cases.” Often these investments are sold by a stock broker or financial adviser because a Tenant-in-Common Investment is a security. In a FINRA arbitration, “often Respondents/Defendants put on an appraiser to prove the property value, but there is an objection on relevance of this testimony because the appraiser does not opine on the market value of the security on the notional value of the unit which is usually not much at all if anything,” says Soreide. It is “critical to obtain the principal loan documents and assumption agreements to ascertain how encumbered and how much real estate you actually own.”
Soreide Law Group represents investors nationwide in Tenant-In-Common (TIC) cases before the Financial Industry Regulatory Authority. For a free consultation on how to potentially recover your financial losses call: 888-760-6552. More information on TICs and FINRA Arbitrations can be found on https://www.securitieslawyer.com.