With a 1031, the Ownership of the Sold Property and of the Purchased Property Need to be the Same.

1031 rules require that whomever owned the old property must now own the new property. If a partnership owned the old property, then the same partnership, with all the same partners, must take title to the new property.

The same applies to corporations, partnerships, trusts, LLCs and other forms of ownership.

If a couple held title to the old property, then they must hold title to the new one…if one is missing, the 1031 fails.

Debbie Ferrari (foreground) is flanked by John and Nancy Barta,
Executive Directors of the National Council of Exchangers.

With a 1031 exchange, you MUST involve a Qualified Intermediary (QI), often called an Accommodator, before you close escrow on your sold property.

You cannot use someone that shares a business or family relationship with you. Thus, your closest consultants, such as financial advisor, stock broker, lawyer, CPA, bookkeeper, accountant, etc., may not be used. Neither can your linear relatives.

The QI is your expert to rely upon during a 1031. A QI holds onto the money from the property that you sold, or you cannot conduct a 1031 exchange.

Even if you have even the least bit of access to the money, that alone will disqualify you from a 1031 and you will have to pay taxes on the gain.

The best move is to get the Qualified Intermediary/Accommodator involved even before you close escrow on the property that you are selling.

You as an exchangor, must buy a replacement property for the one that you sold, within 180 days from the close of escrow on the sold propery.

And, the property that you buy, must be one of the ones that was on your list of identified properties.

On close of escrow, you will be paid by the qualified intermediary that you have been using, often called a 1031 accommodator, who has been holding onto your money since you divested yourself of the relinquished first property.

Note that for a 1031 to take place, YOU cannot have control of the proceeds from the sale. The Qualified Intermediary, then, acts like an escrow firm for you, your buyer, those involved in your purchase, and for the IRS in a way, too.

Debbie Ferrari, EMS, CE, e-PRO, RRS, (R), Vice President, National Council of Exchangors, with Thom Bohan, 2006 NCE President. NCE members bear the designation of Equity Marketing Specialist or “EMS” after achieving a high level of education in real estate marketing, real estate counseling, 1031 real estate taxation, real estate financing, 1031 real estate management, and real estate 1031 property exchange as determined by the National Council of Exchangors.

The 45-Day Rule Cannot Be Broken; The IRS Knows No PITY

In step two, you have to identify, within 45 days of the closing date of the sale of your old property, which property you will choose to replace it.

Holidays don’t matter in the 45 day calculation. So if the 45th day is New Years Eve, Easter, Christmas, Saturday or Sunday, no matter. That 45th day is still the deadline for identifying the replacement property or properties.

You can comply with the 45-day rule using two approaches. In the first, you would have already bought your new property. If when you bought it, you used all your money that you got when you sold the first property, or more, then your exchange is done.

If you haven’t closed escrow on a new property and therein spent all the proceeds from your sold property within 45 days, then you need to make a very precise list of properties that you are considering buying as replacement for the sold one.

This cannot be a loose list, either. For each property, you need to give the exact property address, the exact legal description or, lacking that, some other means that the IRS could follow in determining what property you were talking about.

If you identify more than three properties, the IRS limits their value to that of twice the value of the property that you just sold. This is called the 200% rule.

Remember, if you miss one day, or fail to dot one “i” or cross one “t” in the process, the IRS will not forgive you. You will likely have to pay capital gains taxes on your proceeds.

So get expert help BEFORE you begin a 1031 transaction, and remember that not ALL CPAs, financial advisors, or attorneys are “up” on doing 1031s, because the laws are constantly changing. So, don’t feel bad about getting second opinions if there’s a question.

Get a Qualified Intermediary - Do Your Documentation Correctly.

The first requirement is that the property being sold AND the new property be what used to be called “like-kind.” Like-Kind, however, does not mean that the two properties both have to be the same type, ex. apartment units for apartment units, rented storefront to rented storefront, rented residence for rented residence.

It really refers to the USE of the property. To qualify as like-kind, the property just has to be income producing.

You could sell a rented home and buy a tri-plex. You could sell a warehouse and buy a lumber yard, or two condos, or four houses, whatever.

Like-kind relates to the USE of something, not what it looks like. or how it is described or where it is. Raw land is a bit different, though. It always qualifies for 1031 even if it is not leased or rented out by you.

As long as the item was not your primary residence, you can generally qualify it as a like-kind property for 1031 purposes.

Of course, there are fine print considerations, but this is a general description of what constitutes a 1031…go on to Step Two, Three, and Four now.

But I am no tax advisor, so be sure to consult your CPA, certified property exchangor real estate agent, Attorney or a financial advisor before starting.

Certain documentation must be prepared by knowledgeable consultants before you sell the first property.

See my 1031 property exchange section of my 900-page web site for more information and links.