What to Know About 721 UPREITs in Relation to DSTs

One of the primary appeals of investing in commercial real estate is that it is a highly tax-advantaged asset class. There are many tools available for investors looking to defer paying capital gains tax upon the sale of real estate assets. The most well-known tool is the 1031 Exchange, which allows an investor to sell a property and roll the proceeds into another like-kind asset such as a building of greater value.

Another option is to roll the proceeds into a Delaware Statutory Trust, or DST, which is an entity used to hold title to investment property on behalf of individual owners, who each have a fractional ownership stake in the DST property.

However there is a third tool worth understanding, one that is often overlooked by investors. That tool is the Section 721 exchange into an UPREIT. Section 721 exchanges are often used in conjunction with DST investments, something we’ll explore in greater detail below.

What is a 721 UPREIT?

An Umbrella Partnership Real Estate Investment Trust, or UPREIT, is a unique structure that allows property owners to exchange their property for share ownership in the UPREIT. The share units will generally have the same value as the property that was contributed to the UPREIT. The UPREIT then owns the property and all administration associated with it.

UPREITs are regulated by Section 721 of the tax code and are often referred to as 721 Exchanges. Section 721 exchanges into an UPREIT do not create a taxable event. Therefore, UPREIT property contributors can defer paying taxes on the sale of property in exchange for UPREIT units, though capital gains taxes on UPREIT units will later be subject to standard REIT taxation.

Section 721 exchanges are different from 1031 exchanges, which require like-kind exchanges and so not allow for ownership exchanges of property. Therefore, while both 1031 exchanges and Section 721 exchanges into an UPREIT can be attractive, they should be used in different circumstances.


How do UPREITs work?

In a typical UPREIT structure, all REIT properties are purchased and owned directly or indirectly by its “umbrella partnership” – sometimes referred to as the “operating partnership” or “OP”. The properties are operated and managed within the OP, of which the REIT acts as the sole general partner as well as a significant limited partner.

With a standard Section 721 exchange, an owner sells their property just as they would if selling for cash. However, instead of selling for cash, they sell their interest in the real estate to the UPREIT operating partnership. Since the OP entity is not considered an “investment company” for tax purposes, the contribution is not treated as a sale and capital gains may therefore be deferred.

The seller then receives OP Units instead of cash in exchange. With these transactions, the seller is also allocated a certain percentage (or dollar amount) of debt for the OP as well for tax purposes.

In practice, however, most REIT managers are not interested in the property individuals want to sell. Therefore, many Section 721 exchanges often occur through a two-step process involving a DST.

How to Utilize UPREITs as Part of a DST Transaction

Because most REITs do not want to purchase an individual’s property, most sellers will utilize a DST as a sort of “middle man” before utilizing a 721 Exchange.

Through this process, an owner sells their relinquished property and to the extent there are capital gains, those capital gains are reinvested into a DST using a 1031 exchange. The seller then retains an ownership stake in the DST.

Some DSTs exist with an UPREIT structure that allow investors to convert their DST ownership stake into shares of said UPREIT. Through the UPREIT option, investors can exchange their DST interests for OP Units in a REIT at the time the REIT exercises its option to purchase the DST property. These OP Units can later be converted into REIT common shares at the owner’s discretion.

The Pros and Cons of Utilizing UPREITs

There are many benefits associated with 721 UPREIT exchanges, including:

·      Tax Advantages: The 721 exchange allows investors to defer paying capital gains tax on appreciated real estate in exchange for shares of an operating partnership (“OP Units”). Capital gains continue to be deferred until the investor sells their OP Units, converts the OP Units to REIT shares, or the property contributed to the UPREIT is sold by the acquiring operating partnership.

·      Increased Liquidity: Real estate is generally considered an illiquid asset class. It cannot be purchased and sold with the click of a button, as is the case with stocks, bonds and other equities. However, transactions conducted through a 721 exchange allow investors to preserve liquidity by converting some or all of their OP Units into shares of the REIT, which can then be traded more easily (although doing so then creates a taxable event).

·      Portfolio Diversification: By selling individually-owned property and exchanging into an UPREIT, an investor benefits from greater portfolio diversification. REITs usually hold title to multiple assets, including different property types and in disperse geographies. Investing in a REIT is one way to mitigate risk rather than having all of one’s capital tied up in a single property.

·      Passive Income Potential: 721 Exchanges allow for investors to sell their property and essentially, hand off all property management obligations to the REIT operating partnership. This allows an individual to switch from being an active investor to passive investor. So long as they have taxable income, REITs are obligated to pay dividends to their shareholders and therefore, those who relinquish their individual property can continue potentially collecting passive income well into the future.

·      Estate Planning: One of the primary reasons people utilize 721 exchanges is for estate planning purposes. Upon death, REIT shares can be equally divided among heirs, who may elect to hold or liquidate their respective shares. These shares are passed down through a trust, which gives the beneficiaries of the trust a stepped-up basis that allows them to avoid paying capital gains taxes and depreciation recapture.

Of course, there are some downsides that come with utilizing 721 UPREIT exchanges, including:

·      Inability to Make Future “Like-Kind” Exchanges: When an investor relinquishes their property into an UPREIT, they receive OP Units in exchange. These REIT shares cannot be exchanged for other “like-kind” real estate in the future. If REIT shares are sold, they become subject to capital gains tax and depreciation recapture.

·      Lack of Control: Those who sell property using a 721 Exchange become passive investors; they no longer have a say in how properties owned by the REIT are managed. In fact, individuals no longer own real estate directly at all. All properties are exclusively owned by the REIT, with investors having an ownership stake in the operating entity overseeing those properties.

·      Greater Susceptibility to Market Swings: Unlike real estate assets held directly, which are illiquid in nature and have a low correlation with the stock market’s daily ebbs and flows, REIT shares can be more volatile if the REIT is traded publicly on an exchange. When the stock market contracts, REIT investors will often sell their shares much faster than someone would be able to sell individually-owned property. This can cause REIT values to plummet, even if only momentarily. Publicly-traded REIT shares tend to be highly correlated with the S&P 500 and therefore, are more susceptible to market swings.


Is an UPREIT right for you?

Section 721 UPREIT transactions are limited to “accredited investors” as defined by the U.S. Securities and Exchange Commission. In order to qualify as an accredited investor, an individual must meet certain income or net worth requirements.

Assuming an investor is accredited, the best candidates for UPREITs are generally those who:

·      Own real estate with a low cost basis who would otherwise be subject to significant capital gains taxes upon sale;

·      Want to sell family-owned properties with multiple heirs involved;

·      Are seeking greater portfolio diversification, especially if a substantial portion of their wealth is currently tied up in a single asset; and

·      Want to transition from active to passive real estate investing, as UPREITs allow investors to hand off property management while continuing to seek passive income.

1031 exchanges typically garner the most attention in relation to how real estate owners can defer paying capital gains taxes. However, UPREITs are another potentially great solution for owners looking to dispose of property while simultaneously striving to preserve their capital.

If you’re interested in selling your property, contact us today to determine if a 1031 exchange into a DST and/or a 721 Exchange may be right for you.

General Disclosure

Not an offer to buy, nor a solicitation to sell securities. Information herein is provided for information purposes only and should not be relied upon to make an investment decision. All investing involves risk of loss of some, or all principal invested. Past performance is not indicative of future results. Speak to your finance and/or tax professional prior to investing.

Securities offered through Emerson Equity LLC Member: FINRA/SIPC. Only available in states where Emerson Equity LLC is registered. Emerson Equity LLC is not affiliated with any other entities identified in this communication.

1031 Risk Disclosure:

•         There is no guarantee that any strategy will be successful or achieve investment objectives;

•         Potential for property value loss – All real estate investments have the potential to lose value during the life of the investments;

•         Change of tax status – The income stream and depreciation schedule for any investment property may affect the property owner’s income bracket and/or tax status. An unfavorable tax ruling may cancel deferral of capital gains and result in immediate tax liabilities;

•         Potential for foreclosure – All financed real estate investments have potential for foreclosure;

•         Illiquidity – Because 1031 exchanges are commonly offered through private placement offerings and are illiquid securities. There is no secondary market for these investments.

•         Reduction or Elimination of Monthly Cash Flow Distributions – Like any investment in real estate, if a property unexpectedly loses tenants or sustains substantial damage, there is potential for suspension of cash flow distributions;

•         Impact of fees/expenses – Costs associated with the transaction may impact investors’ returns and may outweigh the tax benefits