What Are the Risks of DST 1031 Properties?

DST 1031 properties are comprised of real estate and contain the same risks that all other forms of real estate entail. The following discussion on risks is meant to be an overview of potential risks and not an exhaustive list. We encourage investors to review the risk section of each potential DST 1031 property’s offering materials before investing.

All forms of real estate investing, whether buying homes, duplexes, apartment buildings, commercial properties, including DST 1031 properties, are speculative and involve a high degree of risk. They are considered speculative because there are no guarantees with real estate investing. Investors should be able to bear the complete loss of an investment. All real estate and DST 1031 properties are subject to the risks of increased and ongoing vacancy, tenant bankruptcies, problematic tenants, economic downturns, physical damage, unexpected repairs and maintenance, eminent domain, negative rezoning, blight, environmental damage and liability and overall valuation fluctuations.

Further risks of real estate and DST 1031 properties include (but are not limited to) no guarantees for projected cash flows, no guarantees for projected appreciation, illiquidity, loss of day-to-day management control, interest rate risk and potential loss of entire principal amount invested.

The use of leverage in real estate investments may increase volatility and the overall risk of loss. Furthermore, real estate investments and DST 1031 properties entail fees related to the acquisition, syndication, ongoing management and eventual disposition of the properties. These fees could materially impact the performance of an investment.

Again, please do speak with your CPA and attorney regarding the risks of investing in DST 1031 properties, along with reviewing the entire offering materials, which provide a full discussion of risks.

IRS Guidelines for DST 1031 Compatibility

When the IRS issued the Revenue Ruling 2004-86 (1), it allowed a properly structured DST to qualify as a like kind 1031 exchange replacement property. Along with this Revenue Ruling, the IRS issued seven “deadly sins,” as we call them, which placed limitations on the trustee of any DST property.

These limitations are:

  • Once the offering is closed, there can be no future contributions of 
capital to the Delaware Statutory Trust or DST by either current or 
new co-investors or beneficiaries.
  • The Trustee of the Delaware Statutory Trust or DST cannot 
renegotiate the terms of the existing loans, nor can it borrow any new 
funds from any other lender or party.
  • The Trustee cannot reinvest the proceeds from the sale of its real 
estate.
  • The Trustee is limited to making capital expenditures with respect to 
the property to those for (a) normal repair and maintenance, (b) minor 
non-structural capital improvements and (c) those required by law.
  • Any liquid cash held in the Delaware Statutory Trust or DST between 
distribution dates can only be invested in short-term debt obligations.
  • All cash, other than necessary reserves, must be distributed to the co- 
investors or beneficiaries on a current basis, and
  • The Trustee cannot enter into new leases or renegotiate the current 
leases.

The seven deadly sins can be problematic for 1031 exchange investors and potentially trigger unforeseen tax consequences to investors. Most sponsors have structured the DST with master leases, allowing them the flexibility to address some of the issues that the seven deadly sins can create. Also, most sponsors will typically use long-term financing that will potentially allow a DST property to be sold prior to the need to either pay off or refinance the loan on the property. However, there are no guarantees that a master lease or long term financing can protect investors from unforeseen tax consequences.

Investors should speak with their CPA and attorney for a full discussion of the implications of the DST structure, including the seven deadly sins, prior to making an investment into any DST offering.

All real estate and DST properties entail fees and costs that investors should review and consider carefully with their CPAs and attorneys prior to making an investment. Fees and costs should be weighed carefully against the potential for tax deferral using a 1031 exchange. All fees and costs are outlined in each offering’s Private Placement Memorandum for investors to review and agree to prior to making an investment.

Loan Securitization Risk

Some of the DST 1031 properties are financed with commercial mortgage- backed security (CMBS) financing. This is financing wherein a financial institution will make a loan to a borrower and then package that loan with many other loans in a trust, which is then typically sold to institutional investors looking for income. CMBS financing can pose substantial risks to DST 1031 investors due to the unique structure of CMBS financing and special servicers typically being very aggressive against CMBS borrowers that are in any type of default of the loan provisions. Many institutional buyers of commercial real estate utilize CMBS financing due to the competitiveness of the loan terms and rates offered; however, it is important to note that if an investor is uncomfortable with CMBS financing, he or she should not invest in a DST 1031 property that will be using it. All investors should review with their attorney and CPA the loan details found in the PPM as well as the loan documents provided upon request by the sponsor company regarding any DST 1031 offering.

Again, the risks discussed above are not meant to be an exhaustive list of risks involved with real estate investments and DST properties. We do encourage investors to read each offering’s Private Placement Memorandum (PPM) completely and to pay careful attention to the risk factors section.

(1) http://www.irs.gov/irb/2004-33_IRB/ar07.html


About Kay Properties and www.kpi1031.com 

Kay Properties is a national Delaware Statutory Trust (DST) investment firm. The www.kpi1031.com platform provides access to the marketplace of DSTs from over 25 different sponsor companies, custom DSTs only available to Kay clients, independent advice on DST sponsor companies, full due diligence and vetting on each DST (typically 20-40 DSTs) and a DST secondary market.  Kay Properties team members collectively have over 115 years of real estate experience, are licensed in all 50 states, and have participated in over 15 Billion of DST 1031 investments.

This material does not constitute an offer to sell nor a solicitation of an offer to buy any security. Such offers can be made only by the confidential Private Placement Memorandum (the “Memorandum”). Please read the entire Memorandum paying special attention to the risk section prior investing.  IRC Section 1031, IRC Section 1033 and IRC Section 721 are complex tax codes therefore you should consult your tax or legal professional for details regarding your situation.  There are material risks associated with investing in real estate securities including illiquidity, vacancies, general market conditions and competition, lack of operating history, interest rate risks, general risks of owning/operating commercial and multifamily properties, financing risks, potential adverse tax consequences, general economic risks, development risks and long hold periods. There is a risk of loss of the entire investment principal. Past performance is not a guarantee of future results. Potential cash flow, potential returns and potential appreciation are not guaranteed.

Nothing contained on this website constitutes tax, legal, insurance or investment advice, nor does it constitute a solicitation or an offer to buy or sell any security or other financial instrument. If you are not the intended recipient of this message, any use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify the sender and permanently delete all copies that you may have. Securities offered through Growth Capital Services, member FINRASIPC, Office of Supervisory Jurisdiction located at 582 Market Street, Suite 300, San Francisco, CA 94104.

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