SEC Takes "No Action" to TIC Request

Janna Shearman CES
February 10, 2009 — 1,445 views  
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On January 14, 2009, the U.S. Securities and Exchange Commission (SEC) published its response to a request for a "no action" letter. The request described certain tenant in common (TIC) transactions which involve the transfer of undivided tenant in common interests pursuant to a master lease or a property management agreement, and urged that such transactions should not be considered securities under Section 2 (a)(1) of the Securities Act of 1933. The SEC disagreed with that view and refused to issue the "no action" letter. What we can interpret this to mean for the TIC industry and the real estate industry in general may be that while some TIC sponsors in the United States have, in the past, sold their TIC interests as real estate rather than as a security, it would appear that the SEC would consider most, if not all TIC offerings to be securities, especially those involving master leases or property management agreements. Unless otherwise exempt from registration, it might be wise to consider whether such TIC interests would have to be registered as securities and sold by licensed securities dealers with all of the required disclosure and regulation.

For those interested in reading the "no action" request as well as the SEC's response, you can visit the SEC's website at http://www.sec.gov/divisions/corpfin/cfnoaction/2009/omni011409.htm.

Janna Shearman CES

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Janna Shearman is vice president and manager of the Louisiana office of First American Exchange Company, a division of The First American Corporation (NYSE: FAF), America's largest provider of business information. She has worked in the exchange industry since 2004 and has attained the designation of Certified Exchange Specialist®. As a frequent lecturer on 1031 exchanges, she provides continuing education credit courses for attorneys, accountants, title insurance agents, and Realtors®.