Basic Requirements of Exchanges

Both Properties Must be “Like-Kind”

Like-kind means you must buy something similar to what you sell. For example, you will buy real property if you sell real property. Like-kind refers to the nature or character of the property, not its grade, quality, nor the way it has been improved. It is a very broad and liberal category, so virtually any type of investment or business use property qualifies. Likewise, properties can be exchanged anywhere within the United States, in one or more states. In addition, section 1031 allows you to “mix-and-match” properties. You can sell a duplex in Colorado and acquire raw land in California, or sell a parking garage in Florida and acquire a multi-unit apartment building in Oklahoma and a warehouse in Texas.

Like-kind properties include: rental properties (single family homes, duplexes, triplexes, apartment buildings and complexes, etc.), raw land, office buildings, shopping centers businesses, marinas, golf courses, leases of at least 30 years, including options, parking lots, farms, factories, trailer parks, storage facilities, retail stores, or an interest as a co-tenant. Like-kind properties do not include: stocks, bonds, notes, partnership interests, personal property, and certificates of trust.

Both Properties must be Held for Investment or Business Use

Your use of both the relinquished property and replacement property must be for investment or business use: each for a minimum or one to two years. Properties must not be used for personal use for more than 14 days per year or 10% of the actual number of days the property has been rented in a given year.

 Proceeds from relinquished property and the acquisition of the replacement property must “flow through” the Intermediary to insure favorable “safe harbor” treatment of the taxpayer. By law, the qualified intermediary may not be the taxpayer or an agent of the taxpayer (e.g. realtor, attorney, tax advisor, banker, accountant, employee, etc.) or lineal descendant of the taxpayer. To complete the 1031 Exchange, the Exchanger may not have access to the sale proceeds from relinquished property but must allow the Qualified Intermediary to receive and disburse all funds.

The Proper Documentation Must be used in Order to Comply with 1031 Regulations

  •  1031 Exchange Agreement between the Exchanger and the Intermediary. This is the most important document in the Exchange. It is the document in which the Exchanger gives the Intermediary the right to acquire the relinquished property from the Exchanger and convey it to the buyer. It also gives the Intermediary the right to acquire the replacement property from the seller and then convey it to the Exchanger.

  •  1031 Exchange Amendment and Assignment for the Rollover of the Relinquished Property. Assigns the Exchanger’s rights in the Agreement of sale with the buyer to the Intermediary. Serves as written notification to the buyer of the relinquished property of Exchanger’s intent to effect a 1031 Exchange and also provides a hold harmless clause to assure the buyer that there are no additional liabilities or costs to him. If a 1031 Exchange Clause is inserted into the Agreement of Sale, this document is unnecessary.

  •  1031 Exchange Amendment and Assignment for the Acquisition of the Identified Replacement Property. Assigns the Exchanger’s rights in the Agreement of Sale with the seller to the Intermediary. Serves as written notification to the seller of the replacement property of the Exchanger’s intent to effect a 1031 Exchange and also provides a hold harmless clause to assure the seller that there are not additional liabilities or cost to him. If a 1031 Exchange Clause is inserted into the Agreement of Sale, this document is unnecessary.

 Exchanger Must Adhere to Time Limitations

 45-Day Identification Period. Within 45 days after the sale of the Relinquished Property is closed, you must identify the Replacement Property to be acquired. During this 45-day Identification Period, you may revoke a prior identification and make a new one. However, if a like-kind replacement property has not been properly identified to the Intermediary by midnight of the 45th day, the Exchange will not work, and the taxpayer will be liable for the capital gains tax due as a result of the sale of the Relinquished Property.

180-Day Exchange Period. 180-Day Exchange Period begins at the same time and runs concurrently with the 45-day Identification Period. Before the 180-day Exchange Period ends at least one of the identified Replacement Properties must be acquired. If the settlement of the Relinquished Property occurs between October 16 and December 31 of the current year, the 180-day Exchange Period will be shortened to the income tax deadline of April 15 of the next calendar year unless a timely and proper IRS extension is filed for the tax return then due. If the Exchanger is a corporation, this filing date is March 15 of the next calendar year unless an IRS extension is filed.

THE INFORMATION PROVIDED ON THIS WEBSITE SHALL NOT BE CONSTRUED AS TAX OR LEGAL ADVICE. IF TAX OR LEGAL ADVICE IS NEEDED, AN ATTORNEY, ACCOUNTANT, OR ORTHER QUALIFIED COUNSEL SHOULD BE CONSULTED.