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Learning Center Experience
By Scott A. Chaplan, InstructorKaplan University School of Professional and Continuing Education
seasoned real estate professionals, and investors are all faced with similar
challenges relative to funding deals. Whether you are facilitating the
procurement of purchase money financing for a first-time homebuyer or arranging
a multiple tranche capital stack for a larger commercial acquisition, financial
architecture is often the single most important aspect of the long-term
viability of a real estate investment. For those of you trying to acquire your
first investment property, it is your primary gating issue.
centers around investment property financing and will cover historical trends,
present day investment financing tools, and the utility, mechanics,
opportunities and present-day constraints of crowdfunding as it relates to the
gathering and deployment of this type of debt or equity for use in the
acquisition of investment property.
AND THE EVOLUTION OF ENTITY STRUCTURE AND FUNDRAISING METHODS
Limited Partnership Act (ULPA) was codified originally in 1916 and revised in
1976 (RULPA). RULPA, as subsequently amended in 1985 and 2001, governs the use
of limited partnerships throughout the United States. It was promulgated by the
National Conference of Commissioners on Uniform State Laws (NCCUSL) for
national governance of business partnerships within the United States.
Before the use of
limited partnerships for the acquisition of investment real estate (and
non-real property investments), general partners shared all benefits and
burdens of combined investing jointly and severally. While the benefits could
(and can) be adjusted by agreement, the third-party liability remained absolute
for each partner. Specifically, if one partner incurred 100% of a third
party-obligation by, for example, pledging partnership property to secure a
loan, the creditor could, under most circumstances and at its discretion,
pursue either partner singularly or jointly in whatever proportion the creditor
This was and remains true even if the other party was unaware of the obligation
having been incurred. This joint and several liability was and remains
problematic for many investors who prefer to invest passively, earn returns,
not manage the ownership entity or its assets, and remain protected from and
against liabilities beyond the sum invested.
Limited Partnership. Limited partnerships were created to afford the
investors the protection of a corporation with the tax benefits of a
partnership. Assuming the investor who receives, for cash or other
consideration, a limited partnership interest as a limited partner (LP), agrees
to refrain from engaging in management activity, his, her, or its exposure
(corporate entities, trusts, and individuals may be limited partners) shall
remain limited to the amount invested by the LP. Every limited partnership
requires at least one general partner (GP) and one LP. The GP(s) have no asset
or liability protection in this structure and are often the promoters of the
Limited Liability Company. California adopted the Beverly-Killea Act
(California Act) in 1994 to mirror what, at the time, many states were already
doing relative to investment and operational entity structure.
Unlike the limited partnership structure, limited liability company members are
entitled to engage in management activities without endangering the sanctity of
the entity, they are protected from liability similar to the protection
afforded corporate shareholders, and they receive the benefits of avoiding
double taxation as do most in pass-through entities.
SYNDICATION AND THE LAW
Syndication is nothing more than
fundraising through more than one source for a common investment. As already
discussed, structures over time have ranged from unincorporated associations,
general partnerships (joint and several liability), limited partnerships (joint
and several liability for the GPs and limited liability for the LPs), and
corporations (shareholder liability typically limited to the sum invested
absent a finding of alter ego) to tenants in common arrangements, that for a
period of time, were (or should have been) securitized.
When fundraising, your threshold inquiries
are: (1) Am I soliciting the investment in and sale of securities?; (2) Am I
allowed to solicit the investment in and sale of securities?; and (3) If the
answer to the first two questions is yes, do I need to ensure the securities
are registered, or alternatively, are they exempt from the state and federal
securities laws, including the Securities Act of 1933 and the Securities and
Exchange Act of 1934, as amended (collectively, the Securities Acts). Every
state provides certain exemptions from registration, and federal exemptions
Is it a Security?
Advisers Act defines a security as:
“any note, stock, treasury stock, security
future, bond, debenture, evidence of indebtedness, certificate of interest or
participation in any profit sharing agreement, collateral-trust certificate,
preorganization certificate or subscription, transferable share, investment
contract, voting-trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas, or other mineral rights, any put,
call, straddle, option, or privilege on any security (including a certificate
of deposit) or on any group or index of securities (including any interest
therein or based on the value thereof), or any put, call, straddle, option, or
privilege entered into on a national securities exchange relating to foreign
currency, or, in general, any interest or instrument commonly known as a security, or any certificate of interest
or participation in, temporary or interim certificate for, receipt for,
guaranty of, or warrant or right to subscribe to or purchase any of the
adopted similar statutes defining securities and regulating their offer and
Am I Allowed to Sell the Securities
Represented in the Syndication?
soliciting the investment in and sale of securities are required to register as
Investment Advisors or maintain other designations depending upon the nature of
the securities offered unless, in certain circumstances, they are fundraising
for an entity they are specifically affiliated with. For example, the Chief
Executive Officer and majority shareholder of a corporation can, in limited
circumstances, fundraise and sell shares in the corporation without registering
the securities. However, doing so must fit within one or more enumerated
exemptions from the registration requirements, as in the sale of any
Do Appropriate State and Federal Exemptions
The most common
exemption from registration under the Acts is Regulation D. The substantial
majority of the states, including California, have adopted similar legislation
exempting certain offerings of securities from registration.
The gravamen of these exemptions afford, in intrastate and in some instances
interstate transactions, exemptions from registration if:
Accredited Versus Non-Accredited Investors
investor is an individual (or certain entities that transcend the scope of this
article) or individuals with a net worth in excess of $1,000,000 without
inclusion of the value of their primary residence (a 2013 amendment) and a
household income of $200,000 for an individual and $300,000 for a couple or
CROWDFUNDING AND THE LAW
Crowdfunding is defined as “the practice
of funding a project or venture by raising monetary contributions from a large
number of people, typically via the internet.” Crowdfunding was responsible for
approximately $5.1 billion during 2013 alone.
This innovative approach to fundraising is deployed across investment
opportunities, and the law in this area is dynamic and in its infancy. Further,
since the majority of the investing is online, the issues such as choice of
law, conflicts of disparate laws, and jurisdiction remain ethereal.
Crowdfunding and the Securities Acts
The House [H.R. 3606 – April 5, 2012]
recently enacted rules governing crowdfunding for investment purposes.
Specifically, sponsors of crowdfunding projects characterized as securities are
limited to an aggregate funding of $1,000,000 per 12-month period. Further, non-accredited
investors are limited personally in the amount they may invest ranging between
5% and 10% of the greater of their annual income or net worth.
The portal or source through which the
investments are made must likewise comport with a myriad of rules and laws in
the event the crowdfunding is deemed related to the solicitation and sale of
securities. Specifically, the Acts, as amended by the JOBS Act, require the
Crowdfunding and the JOBS Act
The JOBS Act
raises from 499 to 2,000 people, or 500 non-accredited investors, the aggregate
number of investors an offering of securities may accept. It also excludes from
these numbers those who receive equity securities pursuant to an employee
compensation plan in an exempt transaction.
The JOBS Act
modified Regulation D of the Securities Act to allow advertising and general
solicitation to accredited investors. While the JOBS Act opens the fundraising
door much wider for small investments in securities, some of the changes do not
apply relative to professional investment entities.
securities laws remain a challenge in some jurisdictions as they are not
automatically preempted by the new law.
here to stay, and with the right structure, advisors, and an understanding of
the myriad laws and forthcoming regulations governing this growing piece of the
investment continuum, appropriately sized real estate investments are an
interesting, and if your business model comports with the laws and salient
economic and operational conditions, appropriate methodology for real estate
Scott A. Chaplan, Esq. is a founding partner
in Greene, Fidler & Chaplan, a real estate and business law boutique firm (www.gfcllp.com) and Managing Director of Del Rey Urban
Capital, LLC, a national real estate fund management and advisory firm with
affiliated entities in real property investment, brokerage and management (www.delreyurban.com).
The views expressed in this article are solely those of the author
and do not represent the view of Kaplan University.
California Corporations Code, Section
California Corporations Code, Sections 17000-17656.
[\202(a)(18); SEC v. Howey Co, 328
U.S. 293 (1946).
California Corporations Code, Sections
25102(f) and (h)
The Securities Act, Regulation D,
By Cynthia Waddell, PhD, CPA, CFE
By Geoffrey Vanderpal, Full-Time Faculty
By Richard Carter, PhD
By Stanley W. Self, CFE
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