Using Reg D for Real Estate Syndications and Development

Through Reg D real estate syndication, “small” investors have the opportunity to collaborate to invest in real estate. This opens the door for such investors to invest in larger development projects, such as apartment blocks, commercial buildings, and land development.

What’s more, taking part in a real estate syndicate allows participants to combine their experience, connections, and expertise to make sounder investments. Simply put, syndication is an attractive option for anybody who wishes to diversify their portfolio but does not have the capital required to do it alone.

A real estate syndicate acts much like a private business raising capital using Reg D. This means it can use many of the same tools that private companies use to raise capital and conduct its activities. As such, a syndicator has the option of using a private placement memorandum as a means of getting other investors to buy into their project. It is the same mechanism that private equity and hedge funds use to raise capital.

In this article, we examine the challenges that real estate syndicates face when raising capital and why it pays to hire a syndication attorney to help with those challenges. We then dive deeper into what a private placement offering is and the exemptions that may apply when making such an offering.

Raising Capital for Regulation D Real Estate Syndication

Raising capital is a key concern for any real estate syndicate. You never know when the next major opportunity may land on your desk, which is why it’s so important to have capital available at all times.

In some respects, the nature of a real estate syndicate enables consistent access to capital. Each syndicator invests in the organization, thus making their capital available. What’s more, private placement offerings offer an opportunity to bring more accredited investors on board, thus increasing the capital available to the syndicate.

This article covers private placement offerings in more detail later on. For now, let’s look at some general tips to follow when raising capital for a real estate syndicate.

Tip No. 1 – Start Raising Money Before You Have a Deal

Waiting until you have a deal on the table may seem like a logical choice. After all, having a deal means you have something tangible to put in front of an investor. The challenge is that potential investors into your syndicate don’t really know who you are prior to you presenting your deal, which means they may not trust you. By waiting until you have the deal ready, you’re missing out on the relationship-building that must occur to make your potential investors feel confident enough to provide capital for a deal.

Some of your prospective investors may not know what syndication is. Many will certainly not know who you are or what opportunities syndication can provide to them. Instead of waiting until you have a deal to discuss these issues with your investors, open dialogue early. Aim to educate prospective investors as you search for deals. Doing so means they’re more likely to provide capital when an opportunity does come along.

Tip No. 2 – Raise More Money Than You Need to Close the Deal

Let’s say you have a deal for a $10 million commercial property on the table. To secure that deal, you need to offer a 20% down payment of $2 million.

It sounds fairly cut and dry.

Raise the $2 million and you have a closed deal.

While that is certainly the case, it also overlooks the many costs involved with running and maintaining the new property. Renovation, deferred maintenance, and the possibility of other projects on the horizon should all be considered when raising capital for a deal. So too should having an emergency fund available for unexpected expenses. Furthermore, some of your investors may drop out before you complete the deal, taking their money with them in the process. You need to account for this possibility in the same way you account for additional costs.

As such, it’s wise to raise more capital than is needed for your deal. Having more capital available gives you a safety net for when the unexpected happens. You’ll also ensure that you have the capital needed to turn the property into a worthwhile investment.

Tip No. 3 – Know the Law

To syndicate a property, you must first form a Limited Liability Corporation (LLC) around that property. From there, you sell shares, which are a form of security, in the LLC to potential investors. The fact that you’re selling securities means that you have to adhere to the Securities and Exchange Commission’s (SEC’s) regulations.

Failure to both understand and follow these laws makes the syndicator liable for criminal prosecution. This article examines said liability, and what you need to know to conduct a successful and legal private placement memorandum, in more detail later on. For now, understand that you need to know the law and how it applies to your syndicate before offering any securities to potential investors.

What is a Security?

As we’ve raised the topic of securities, now seems like a good time to define what a security is.

A security is a negotiable and fungible financial instrument that holds a level of value defined by both the market and the person who holds the instrument. In terms of a real estate syndication, a security represents shares in the LLC formed around the syndicated property, thus granting the owner of the security an ownership position in the LLC.

There are four main types of securities.

Debt Securities

Also referred to as fixed-income securities, debt securities represent capital that somebody has borrowed and must repay under the terms outlined as part of the security. A good example of this is a government bond, which is a debt security that a government may issue to support its spending. Those who invest in these government bonds can expect to receive occasional interest payments.

The need to make interest payments is fairly standard with all debt securities, along with the need to make repayments towards the principal amount borrowed. Typically, debt securities have fixed terms, with the issuer redeeming the full security at the end of the term.

Derivative Securities

These are financial instruments that have a value based on, or derived from, other financial instruments. For example, the performance of stocks, bonds, and currencies can all affect the value of a derivative security. So too can a country’s economic performance, interest rates, and market indices.

There are four key types of derivatives:

1. Options – This denotes the purchase or sale of an asset for a set price on a predetermined date at some point in the future. With an option, the buyer is not obligated to go through with the transaction.
2. Futures – These derivatives work in much the same way as options. However, the key difference is that the buyer is obligated to go through with the transaction once the ink has dried on the contract. All futures trade on an exchange.
3. Swaps – A swap allows an investor to swap from one form of cash flow to another. For example, a trader may switch to a fixed-rate loan from a variable-rate one, which would be considered an interest rate swap.
4. Forward – These are similar to futures, only they do not trade on an exchange. With this security, it’s up to the buyer and seller to consider the size, terms, and settlement process of the derivative.

Hybrid Securities

A hybrid security combines some of the critical elements of both debt and equity securities. Many banks and other financial institutions use this type of security to borrow money from investors.

As we see with debt securities, hybrid securities often involve a commitment to paying interest at a pre-determined rate until a fixed point in the future. However, the exact timing and volume of these interest payments are not set in stone. Furthermore, the interest payments can be converted into shares at any point, thus representing the equity aspect of the security.

Many investors consider hybrid securities to be the most complex of the four options, meaning they also present the most risk.

Equity Securities

We’ve left equity securities until last because this is likely the type of security you will offer as a real estate syndicator using a private placement memorandum.

Equity securities denote the ownership interest that an investor holds in a business. In the case of real estate syndication, the business is the LLC formed around the syndicated property. Any investor into that LLC becomes a shareholder, receiving equity and an ownership stake in the LLC in return for their money.

When you hold an equity security, you are not entitled to interest payments or dividends as you might be with other forms of security. However, you are entitled to a percentage of the capital gains generated by selling the asset that you hold securities in. For example, somebody who invests 50% of the capital needed to secure a property for a real estate syndicate will be entitled to 50% of the profit that property generates.

Why Hire a Regulation D Real Estate Syndication Lawyer?

When you come across a property deal that seems ripe for syndication, it’s always tempting to rush straight in. After all, you don’t want to miss out on the opportunity presented to you. So, you think that you can probably handle all of the issues related to raising capital, forming an LLC, and selling securities yourself.

The issue here is that real estate syndication comes with several legal and regulatory complications that you need to account for. As a syndicator, you must work with a syndication attorney to ensure you’re properly protected at all times.

Why?

The following are 10 quick reasons why you should hire a syndication lawyer.

Reason No. 1 – Avoiding Misleading Regulation D Real Estate Syndication Documents

You’ll create a lot of real estate syndication documents during the course of securing a deal. If any of those documents contain information that is either misleading or that conflicts with information found in other documents, you may face personal or criminal liability.

A good syndication attorney will check all of your real estate syndication documents to ensure everything they communicate is clear and accurate.

Reason No. 2 – Costs of Litigation Outweigh the Cost of Hiring an Attorney

By going down the DIY route, you may save yourself some money upfront as part of your syndication efforts. However, the amount saved is far outweighed by the potential costs of litigation that can arise as a result of a poorly-structured or non-compliant syndicate.

Retaining a syndication attorney from the beginning of the transaction ensures that you avoid the far costlier fees that come from engaging in a legal battle later on.

Reason No. 3 – Proper Syndication Structuring

You’re required to structure your real estate syndicate to ensure that every syndicator receives fair and adequate compensation based on how much they invested into the project.

With a good syndication lawyer, you can structure your syndicate to ensure proper compensation is paid out. You will also catch all of the opportunities you have available to offer compensation via distributions or acceptable fees if needed.

Reason No. 4 – The Law Without a License Issue

As mentioned, there are a lot of real estate syndication documents required to complete your syndicate’s property transaction. Without legal aid, the responsibility for drafting those documents may fall on your shoulders, which presents two key challenges.

The first is that your lack of legal knowledge could lead to you preparing invalid or non-compliant documents that cause issues for the entire syndicate.

The second, perhaps more serious, issue is that drafting legal documents yourself technically means that you’re practicing law without a license. This is particularly the case if any other investor signs a document that you’ve prepared.

Most states and jurisdictions consider practicing law without a license to be a criminal offense, making you liable if you have drafted legal documents for use in your syndicate. With a syndication lawyer, you circumvent this issue entirely by having somebody available who can draft all of the documents you need legally.

Reason No. 5 – Ensuring Proper Disclosure

As the syndicator, you’re responsible for communicating any risks associated with your offering to potential investors. Failure to do so means you’re securing investment under false pretenses, which may subject you to continued liability that lasts for the length of the offering.

Often, improper disclosure occurs because the syndicator has simply overlooked something that needs to be disclosed. Unfortunately, making a mistake still leads to liability for the effects of that mistake. Your syndication attorney ensures that nothing gets missed in the disclosure stage of your offering.

Reason No. 6 – Staying on Top of Tax Requirements

Do you know the difference between a manager-managed and a member-managed LLC? If you don’t, you might find yourself creating the wrong legal entity or structure for your real estate syndicate, even though you’ve created an LLC. This incorrect structure could also lead to tax implications that affect your investors and you as a syndicator.

With an attorney, you ensure you create the proper structure to ensure maximum tax benefits from the syndicate.

Reason No. 7 – Avoid Choosing the Wrong Exemption

You have a choice of several exemptions for the private placement memorandum your real estate syndicate raises. Without appropriate legal advice, you may end up choosing an exemption that restricts, burdens, or is otherwise not appropriate for you and your investors.

Reason No. 8 – Failing to Follow the Rules That Apply to Each Exemption

As part of a private placement memorandum, you will likely file for exemptions via Regulation D. There are specific rules you must follow related to the types of investors you can work with and how you can advertise your syndicate to make your exemption valid. A good lawyer will help you to understand what Regulation D is, how it applies to your syndicate, and what you need to do to ensure you receive the exemptions you file for.

Reason No. 9 – Ensuring Correct Filing

You need to file more than the offering documents when making a securities offering. Typically, you also have to file your offer with both state and federal agencies within a set time frame. Failure to do so could result in the loss of your exemptions. It could also lead to the SEC accusing the syndicator of trying to sell unregistered securities. Again, a good lawyer ensures that every document required to make your securities offering legal gets filed at the appropriate time.

Reason No. 10 – You Can Reimburse Some of Your Legal Fees

The fees charged by a syndication attorney for the formation of your syndicate are often reimbursable once the syndicate raises its minimum offering. This essentially means that you can consider your legal team as an insurance policy that you will receive reimbursement on as long as the syndicate is successful in its goals.

What Liability do You Face for Raising Private Capital for Real Estate Wrong?

Failure to properly draft a private placement memorandum leads to a syndicator facing substantial liability, even if the syndicator is not aware of what they’ve done wrong. Both the SEC and your state’s securities commission have a raft of regulations you must follow when creating a private placement memorandum, which is why it’s so important to work with a competent syndication lawyer.

Much of the liability you face relates to fraud. In the Securities Exchange Act of 1934, Section 10(b) states that an individual who omits or misrepresents the facts related to the sale of securities is liable. Typically, this misrepresentation carries a minimum penalty of the rescission of the investor’s contract to buy a security. Recession leads to a contract getting rendered null and void, with the investor no longer having to spend the money they’d committed to spending.

Recission also means that the company that made the securities offer, such as your real estate syndicate, is now liable for repaying the price of the investment. Added to this are attorney fees, interest payments, and any other costs deemed relevant to the investment. If you do not have the money required to make these payments, a court may order payment via your company or personal assets.

Note that this is the minimum punishment.

If the SEC can demonstrate that you have willfully omitted or misstated facts, you face further criminal punishment. Currently, this punishment amounts to a fine of up to $5 million, which may be accompanied by a prison sentence of a maximum of 20 years.

Moving away from the SEC’s regulations, you must also consider your state’s anti-fraud protections. Every state has its own laws related to securities and exchanges, which you must abide by in addition to following the SEC’s regulations. In most cases, the state will impose civil liability on anyone who omits or misrepresents facts on top of the liability that person already faces under the SEC’s regulations.

As a result, you may face further fines and civil penalties from each state you sold securities in after you have received your penalties from the SEC.

Simply put, failure to draft a private placement memorandum properly can lead to you selling securities under false pretenses. Even if you do not do this willfully, you may still face hefty fines that could topple your real estate syndicate. Protecting yourself from these liabilities is perhaps the most important reason why you should secure the services of a syndication attorney.

What is a Private Placement Memorandum?

Now that you understand what securities are, how they relate to your real estate syndicate, and why it’s so crucial that you work with a competent syndication attorney when offering securities, it’s time to answer the big question. What s a PPM?

Also referred to as an offering memorandum, a private placement memorandum (PPM) is a document that a privately-held company can use to make an offer to investors to ask them to invest in a project. They’re a vital tool for private companies that cannot rely on public-facing tools to raise capital. In a real estate syndicate, you will use a private placement memorandum to raise the capital needed to fund your purchase of a property that you would not otherwise be able to purchase.

The document itself is similar to a business plan. It outlines the investment opportunity, along with the terms that each party will adhere to upon signing. The PPM also provides details about the investment opportunity, information about relevant timelines, potential risks, important legal disclosures, and information related to who can invest.

As a syndicator, it is your responsibility to create, or commission an attorney to create, a PPM document before you start making concrete offers to potential investors.

There are two types of private placement memorandum you can create:

1. Private Placement Debt Offering – You sell a note or bond to your investors that essentially makes you a borrower to that investor. The bond describes the terms of the deal you make, including the date when the loan matures, how much interest you’ll pay on the loan, and how regularly you will make interest payments to the investor.
2. Private Placement Equity Offering – The investor buys shares in the LLC you have created around the property you’re buying. With an equity offering, an investor owns a percentage of the deal, which they may receive back via rent or the capital gains that come from the sale of the property.

It’s up to you to choose the appropriate form of PPM, meaning you have to determine whether you’d like to go into debt or offer equity to make your real estate deal a reality.

What Does a Private Placement Memorandum Contain?

While there are no defined sections that a PPM absolutely has to contain, a poorly-written PPM will usually result in an investor rejecting your offer. As such, it’s important to know what a good PPM contains so you can ensure you’re providing all of the information your prospective investor needs to determine if you’re offering them a good opportunity.

Offering Summary

If your entire PPM is supposed to tell the story of how your offer will benefit the investor, the offering summary wraps everything up in a nice little bow. However, rather than using the summary as a conclusion, most syndicators place it at the beginning of their private placement memorandum so that an investor can understand the key details of the offer before delving deeper into the document.

When creating an offering summary, focus on communicating the main benefits of the project. You may also offer some immediate transparency about the risks faced here, as doing so may show an investor that you’ve considered every aspect of the project.

Company Information and Objectives

What does the investor need to know about the company you’ve set up to conduct your real estate syndicate’s business? What are that company’s goals? Who is the syndicator? What responsibilities do you assume on the company’s behalf?

These are all questions you’ll answer in this section, which is designed to show an investor that you’re operating a legitimate company.

Terms of Offer

In the terms of offer section, you state the terms related to the offer you’re making. For example, it’s here that you tell a prospective investor about any minimum investments you require for participation in your syndicate. You’ll also outline the likely returns for your investors based on this minimum amount.

You may also use this section to discuss what types of investors are eligible to participate in the syndicate. This last issue is particularly important as it relates to SEC Regulation D and your chosen exemption. Allowing the wrong types of investors into your syndicate could lead to the liability issues detailed above.

Location of the Funds

Where will the funds be located during the investment period? In other words, what happens to the money before it’s used to purchase the real estate you’re targeting? This section answers questions about what happens to the investor’s funds once they’re handed over to your syndicate. Be completely transparent here, both to improve investor confidence and to ensure you face no issues with liability.

Use of Proceeds

How will the syndicate use the money collected via the PPM? Here, you tell your investors exactly what the syndicate will spend the proceeds of its capital raising efforts on. Usually, this will be commercial property, an apartment building, or a similarly large real estate opportunity. Aim to provide all of the details you possibly can about the opportunity to increase investor confidence.

Compensation and Profit Distribution

This section answers the key questions about how investors and the syndication’s management will receive compensation.

The manager’s section should detail every reimbursement the manager will likely receive during the course of the investment. It should also discuss any profits the manager will receive in detail. Again, complete transparency is the goal here.

The same note about transparency applies to the section that details how the syndicate allocates profits to its investors. If the investor is to receive an interest percentage, as they likely will with a private placement debt offering, that percentage is detailed here. This section should also contain details about when distributions are likely to be made to investors and how high those restrictions are likely to be.

Finally, you may also use this section of the PPM to detail what happens if the investment makes a loss. Talk about any relevant profit-sharing restrictions and be clear about the financial responsibilities of every party involved in the deal.

Information About Liquidity

Here, you’ll answer questions about how liquid you expect the investment opportunity will be. For example, if the syndicate aims to purchase a large number of rental units, this represents a fairly illiquid investment. As such, investors need to know that their money will be tied up in the rental units for a long period. Again, transparency is key here as failure to properly communicate the liquidity of an opportunity could lead to accusations of misrepresentation or omission of facts.

You may also use this section to lay out the terms under which an investor may transfer or sell their units, assuming you wish to provide that provision to your investors.

Tax Information

Investors into a real estate syndicate must receive a Schedule K1 document every year. Your PPM should outline when your investors will receive this document. You’re also obligated to ensure this document contains accurate information that will ensure your investors can file their taxes correctly.

Steps for Investing

How does somebody who’s interested in investing get involved in your syndicate? This section of the PPM provides the answers by detailing the steps an investor must follow to become a member. You will usually ask your investors to create a subscription agreement and offering package as part of their efforts to get involved. You’ll also make it clear that due diligence is the responsibility of the investor, rather than the syndicate.

Risks and Conflicts of Interest

You’re legally obligated to declare any potential conflicts of interest as part of your PPM. Furthermore, you’re also obligated to inform your potential investors about any risks related to the property you’re intending to invest in. Failure to do so could lead to breaching the SEC’s anti-fraud rules, leaving you liable for the penalties discussed earlier in the article.

Aim to do the following when detailing risks:

• Focus only on risks that are directly related to the syndicate and its proposed investments. Avoid talking about risks that apply to any securities offering as these are implied by the nature of the PPM.
• Present risk factors in order of their importance. You want to ensure the most significant risks are also the most visible, thus providing complete transparency to your investors. Again, this will help you to avoid any accusations of misrepresentation or omission.
• Organize your risk factors logically so that readers can quickly understand what they’re getting into. Many PPMs start with the risks related to the company, followed by the industry risks, and then conclude with risks attached to the specific investment opportunity.
• Ensure you cover materializing risks as well as potential risks. In fact, it’s more important to disclose risks that are already coming to pass than it is to cover risks that might occur. Failure to discuss the former could be considered as an attempt to mislead.

One final note is that this section of the PPM does not necessarily need to address what your syndicate is doing to address the noted risk factors. In many cases, this section of the document is a flat statement of the risk factors, which investors use to make their own decisions.

Qualifications Needed for Investors

Finally, your private placement memorandum should detail what an investor needs to do in order to qualify for inclusion into your real estate syndicate. You will likely reiterate any minimum required investments here. However, the main purpose of this section is to inform the reader about the type of investors who can accept the PPM’s offer.

For example, some offers are only available to accredited investors. Others may include a certain number of sophisticated investors. The qualifications depend on the exemption you’ve chosen under SEC Regulation D.

Choosing an Exemption – SEC Regulation D

Before we focus on specific exemptions, we must understand what Regulation D is and how Regulation D can be applied to any industry.

Created as part of the Securities Act of 1933, Regulation D is a federal program that allows private companies to raise capital by selling equity or offering debt securities. In short, this means that Regulation D is responsible for your syndicate being able to offer a PPM in the first place.

Regulation D allows you to sell securities as part of raising capital privately, without you having to register those securities as a publicly-listed business would need to. The regulation is broken down into the following eight rules:

1. Rule 500 – Covers the proper usage of Regulation D.
2. Rule 501 – Defines the terms related to Regulation D.
3. Rule 502 – The general conditions you must meet to be eligible.
4. Rule 503 – How to file your notice of sale.
5. Rule 504 – An exemption for offerings below $10 million.
6. Rule 506 – The exemption for an unlimited offering.
7. Rule 507 – Disqualifying provisions related to rules 504 and 506.
8. Rule 508 – Deviations from the conditions, requirements, or terms of Regulation D.

You may have noticed that Rule 505 is missing from this list. That is because the rule was expunged from Regulation D on May 22, 2017.

You must follow all of these rules when creating your real estate syndicate’s PPM. However, it’s Rule 506 we will focus on here, as this most directly defines the exemptions available for the type of unlimited offering your syndicate is most likely to make.

Rule 506 is split into several subsections, with the two that are most relevant to you being noted below:

Rule 506(b)

Considered a “safe harbor”, Rule 506(b) allows the PPM issuer to open the opportunity up to both accredited investors and up to 35 sophisticated investors. For a sophisticated investor to get involved in the opportunity, they must have a previous relationship with the syndicator. This relationship should be such that the syndicator can vouch for the investor’s reliability and financial status.

The allowing of non-accredited investors creates complications elsewhere. The syndicator must provide a lot more information about the investor than they would need to for an accredited investor. Some estimates state that including just one non-accredited investor in the syndicate can raise the cost of a PPM offering by over $5,000.

On the plus side, Rule 506(b) allows the syndicator to take an investor at their word when the investor claims they have accreditation. The PPM issuer is not liable for the investor’s activity or accreditation as long as they enter into the agreement in good faith.

Advertising is also a key concern with this rule. Under Reg D 506(b), you may only advertise the company brand. You cannot advertise the investment opportunity or deal that you’re offering to your syndicate’s investors. If you have ever seen a vague television advert from an investment company that focuses on how the company can help an investor without discussing any specifics, you’re seeing this advertising rule in action.

Rule 506(c)

Under Rule 506(c), the offering is available to accredited investors only. While this simplifies things somewhat, it also means that the PPM issuer is legally obligated to verify every potential investor’s credentials to the best of their ability. You cannot take it as given that an investor is accredited just because they told you they are. You must examine relevant documents, such as W-2 forms, tax returns, and brokerage statements. You may also seek a letter from the investor’s accountant or lawyer to confirm their status.

Many syndicators use third-party verification providers to check accreditation. In doing this, the syndicator takes the reasonable step required by the SEC.

When it comes to advertising, those operating under Rule 506(c) can advertise the deal as well as the real estate syndicate it is attached to. As a result, an issuer of a PPM with Rule 506(c) exemption can talk openly about the deal they’ve secured with anybody, even though they’re obligated to only accept capital from an accredited investor.

Work With An Experienced Legal Firm

While the general concept of a private placement memorandum is fairly simple, the legal documentation required to conduct a PPM properly can be overwhelming. What’s more, you may face issues with the SEC if you attempt to draft the required legal documents yourself, especially if the courts determine that you’ve practiced law without a license to do so.

In short, you need a syndication attorney by your side to ensure that your PPM offering is made without a hitch.

At Moschetti Law, we help syndicators who want straight answers about what they need to do to create a private placement memorandum. We help you to deal with all of the relevant syndication documents, ensure you locate every opportunity to maximize your returns, and construct the Fort Knox of legal protection around your offering.

We build investment-grade private placement memorandums while helping your real estate syndicate avoid all of the mistakes that others make when raising capital. If you’d like to learn more about how we can help you to draft your syndicate’s PPM, schedule a free consultation with Moschetti Law today.