Purchasing Replacement Property from a Builder

When a taxpayer considers purchasing new construction from a builder as replacement property in a 1031 exchange, they should be aware of various factors in advance of the 1031 exchange transaction.

RECEIPT OF PROPERTY TO BE PRODUCED

  1. The delayed exchange rules allow taxpayers up to 180 calendar days to purchase replacement property. This time frame is statutory and only property properly identified within 45 calendar days and acquired within 180 days qualifies as like-kind replacement property in a 1031 exchange. Taxpayers should be aware there are no provisions providing for construction delays or other factors where a builder may not be able to deliver replacement property to a taxpayer within the 180-day time deadline. A reasonable approach might be for the taxpayer to negotiate for the builder to close on the sale of the replacement property a little in advance of the actual 180th day to provide margin for any potential last-minute issues that could potentially push back the actual closing date.
  2. If a builder has a lender funding their construction project, often the lender will not allow the builder to transfer a property to the 1031 exchange buyer until they have a “Certificate of Occupancy.” Taxpayers should discuss these and other issues with the builder prior to entering into a contract to make sure there will not be challenges on the builder’s side of the transaction that might negatively impact the ability of the builder to transfer the newly constructed replacement property to the taxpayer within the 180-day exchange period time deadline.
  3. To qualify for 1031 tax deferral, the taxpayer must receive like-kind real property, not services to be produced any time after the expiration of the exchange period. Any exchange proceeds that are not reflected in actual improvements to real property within the 180-day exchange period are considered boot since production services to be built in the future are not like-kind real property. The Treasury Regulations specifically states the following: “…is not within the provisions of Section 1031(a) if the relinquished property is transferred in exchange for services (including production services). Thus, any additional production occurring with respect to the replacement property after the property is received by the taxpayer will not be treated as the receipt of property of like-kind.”

IDENTIFICATION OF PROPERTY TO BE PRODUCED

  1. The Treasury Regulations also state: “Replacement property is identified only if it is unambiguously described in the written document or agreement. Real property generally is unambiguously described if it is described by a legal description, street address, or distinguishable name.” Accordingly, the taxpayer should make sure that they unambiguously describe replacement property which will normally be something like an actual street address or the specific address and property unit number. If the replacement property consists of property to be produced, in addition to meeting the foregoing requirements, the taxpayer must identify the real property and the improvements to be constructed in as much detail as is practicable at the time the identification is made.

Contributed by Asset Preservation Inc., Roseville, CA 866-515-8124



Posted on July 23, 2019 at 10:08 am
Robert Stiles | Category: Educational, Real Estate News | Tagged

Does Downsizing in Your Senior Years Make Sense?

When you compare the cost of living in a large home versus a small home, it’s easy to see that there are definite benefits of living with less. However, aside from money, there are many reasons that seniors might want to downsize to a single-story one- or two-bedroom house. The process requires work, but it is often worth the hours that you put into it. If you’re thinking about your long-term living situation, keep reading for information that can help you stay independent.

The Pros

There are obvious financial benefits of living in a smaller home. First, you can often use the proceeds from your existing property to pay cash for a new place, which will help eliminate having to pay a monthly mortgage. Next, the utility and maintenance costs are considerably less, especially when your new home is actually new. 

Specifically for seniors, moving to a smaller space can have emotional benefits as well. HomeAdvisor explains this idea quite nicely by citing that “[h]aving fewer financial- and maintenance-related responsibilities will allow you to focus more on your happiness and less on your home.” You will also have the peace of mind knowing, depending on the house you choose, that you don’t have stairs or other obstacles to contend with if your maneuvering abilities aren’t quite what they used to be.

What Do You Need?

More than just a one-story living area, there are other things to consider when picking a new home. Make a list of amenities that are important to you; this might be a neighborhood with lots of other seniors or easy access to public transportation. Diane Benson Harrington of BobVilla.com further cautions that you will need to determine how much work, if any, the home needs. It may be necessary to add a few senior-friendly touches, such as lowered kitchen cabinets or wider doorways. Don’t neglect to consider these costs when viewing houses. Major renovations may take time, which can also delay the sale of your current home causing a potential issue if you need the equity as cash in hand.

Making It Happen

As we touched on previously, there’s a lot of work that goes into moving, even when you’re going to buy a smaller house. Planning in the early stages is essential and will keep you from hitting bumps in the road to the next chapter of your life. It’s usually best to tackle the emotional aspects of moving before you get down to the nitty-gritty.

If you lived in your current home for many years, you’ve made memories, and that can definitely be hard to walk away from. Plus, you’re going to have to figure out what to do with the stuff that you can’t fit into fewer square feet. Something that might help is to remind yourself that the home’s next family will make just as many memories as you. In a sense, you are making room for the next generation to raise their children in a loving home.

As far as your personal belongings go, that can be considerably more challenging. Chances are, you have family heirlooms that hold an incalculable sentimental value. Unfortunately, your grandmother’s hutch may not fit into your new space. Before you start looking for a new house, pull your children aside to discuss which items they might like to have. Keep in mind, though, that many in the younger generation have minimalist tendencies and likely have no emotional attachment to things that belonged to people they never met. Plan an estate sale for anything that’s left that won’t be making the move along with you. 

For many seniors, staying in their current home isn’t an option. If you fit into this demographic, you’re going to have to make a decision on where you want to go. Although there are numerous options, when you want to remain independent, buying a smaller home makes sense.

Contributed by Mike Longsdon

Posted on July 4, 2019 at 1:50 pm
Robert Stiles | Category: Educational, Real Estate News

As-Is. What Does It Really Mean?

Tiffany Banks, General Counsel

Reprinted for Carson Valley Communities

What does it mean when a property is being sold as is?  Does that mean that the buyer takes the property as it is with all defects it may have?  What does that mean for the seller?  Does the seller say once the property is transferred, they are free of any risks and liabilities because I sold it this way?  We are seeing more properties being sold this way and wanted to break down these issues so you as a REALTOR® can understand what this means for your client.

How does a court interpret an as is clause?

The courts often interpret an “as is” clause in a contract to imply that a property could be defective.  This means that the seller wishes to sell the property in existing physical condition it is in and the buyer is agreeing to accept that condition when making an offer.

Is a seller still required to disclose known defects?

Yes.  Just because a property is being sold as is, a seller must still make disclosures they normally would on defects with the property that they know about it. Every sale of a residence MUST include the Seller’s Real Property Disclosure form (SRPD) in accordance with NRS 113.130. There are very few exceptions, and the inclusion of an “as is” clause is NOT an exception. A seller may not insert an as is clause into a contract and assume that they are safe from claims for property defects.  We always say, “disclose, disclose, disclose” and there is a perfect buyer for every property.  A broker should warn sellers that selling “as is” is not a shield from claims of misrepresentation, fraud or nondisclosure. 

Does a buyer still have a right to inspect the property?

Absolutely.  Just because a property us being sold as is, doesn’t mean that a buyer can’t (or shouldn’t) inspect the property.  If a buyer needs even more of a reason, this would be it.  When representing a buyer in an as is transaction be sure that they take adequate time to do due diligence and necessary inspections, so they have an idea of the actual property condition.  Unless the contract specifically says otherwise, the buyer is entitled to cancel the contract based on items discovered during the inspections.

So, what DOES “as is” mean? 

The simplest way to explain this is that by selling the property as is, the seller is saying that they won’t make any repairs.  It is that simple.  They still have to disclose all known material facts and defects relating to the property. 

Can a buyer still ask for repairs to be made that they discover during due diligence?

They can, however the seller is asserting that they want a buyer to take the property as it is and not have to make any repairs.  We would recommend advising the buyer to seek appropriate counsel regarding the risks of buying a property in “as is” condition. 

Statements made by the Nevada REALTORS® Legal Information Line attorneys on the telephone, in e-mails, or in legal e-news articles are for informational purposes only. Nevada REALTORS® staff attorneys provide general legal information, not legal representation or advice regarding your real estate related questions. No attorney-client relationship is created by your use of the Legal Information Line. You should not act upon information you receive without seeking independent legal counsel. Information given over the Legal Information Line or in these articles is for your benefit only. Do not practice law or give legal advice to your clients! Inform your clients they must seek their own legal advice.

Posted on July 3, 2019 at 7:46 am
Robert Stiles | Category: Educational, Real Estate News | Tagged

Five Days to Cancel Escrow

When you enter into a purchase agreement to buy a home or unit in a common-interest community, in most cases you should receive either a public offering statement, if you are the original purchaser, or a resale package, if you are not the original purchaser. The law generally provides for a 5-day period in which you have the right to cancel the purchase agreement.

The 5-day period begins on different starting dates, depending on whether you receive a public offering statement or a resale package. Upon receiving a public offering statement or a resale package, you should make sure you are informed of the deadline for exercising your right to cancel. In order to exercise your right to cancel, the law generally requires that you hand deliver the notice of cancellation to the seller within the 5-day period, or mail the notice of cancellation to the seller by prepaid United States mail within the 5-day period.

For more information regarding your right to cancel, see Nevada Revised Statutes 116.4108, if you received a public offering statement, or Nevada Revised Statutes 116.4109, if you received a resale package.

Posted on June 7, 2019 at 5:24 pm
Robert Stiles | Category: Educational | Tagged , , ,

FIVE LAWN CARE MISTAKES

Everyone wants a lawn covered with lush green grass and verdant plants. But what mistakes are preventing you from achieving this? Read on to learn about some common lawn care mistakes and how to prevent them. 

1. Cutting Grass Too Short

Experts advise cutting off no more than 30 percent of the grass blade in a single pass. Cutting your grass too short or trimming it down to half of its previous size might be appealing—after all, if your grass is shorter, it will take longer to grow back—but this is not good for the long-term health of your lawn.
In addition to damaging the blade, cutting your grass too short can indirectly damage the root system. This damage will limit the grass’s ability to collect light and absorb water, leading to wilting or even plant death. Keeping your grass longer will help it to grow fuller and become more lush. 

2. Using Only One Type of Seed

Using a mixture of seeds will result in a mixture of plant types. Different types of grass will survive better in different conditions. The different species will balance out each other’s strengths and weaknesses, resulting in a more resilient lawn overall. This will make your turf more likely to survive extreme weather conditions such as prolonged heat or drought. 

3. Ignoring the pH of the Soil

The optimal pH for grass is between 6.0 and 6.5. For reference, a neutral pH, such as that of water, is 7.0. This means that your lawn’s soil should be slightly acidic in order to bolster plant growth. Sending away a soil sample for testing can be an easy way to get a gage on your lawn’s pH. If the pH is out of whack, it can easily be adjusted using sulfur or lime treatments. 

4. Forgetting to Sharpen Your Lawn Mower’s Blade

A sharp blade will cut your grass more cleanly, while a dull blade can cause bruising and other damage to each blade of grass. Damaged blades of grass are more susceptible to death or disease, so using a sharp lawn mower blade can contribute to the overall health of your lawn. 
Most people should sharpen their lawn mower blades approximately twice a year. A good sign that your blade is too dull is that your lawn mower is tearing or crushing your grass instead of cutting it cleanly. 

5. Collecting Grass Clippings

Many lawn mowers come with an attached bag that will gather up the grass as it is cut. This is a visually appealing strategy, but it is not good for your lawn’s long-term health. Instead, you should leave the grass clippings spread around your lawn. This self-mulching strategy will help fertilize your remaining grass. In particular, this is useful in maintaining your soil’s nitrogen levels—a key factor in lawn health. 

If you can avoid making these 5 common lawn care mistakes, you will enjoy a lush, green lawn throughout the year.

Article by HomeActions, LLC

Posted on June 5, 2019 at 5:33 pm
Robert Stiles | Category: Carson Valley, Educational | Tagged