DST 101

Perhaps the most significant advantage of Delaware Statutory Trusts is that the unanimous approval of the individual owners (investors) is not required in order to deal with unexpected, adverse developments. During the recent recession, which of course significantly affected the real estate market, some TIC structures were hindered from taking the necessary actions to mitigate loss, simply because one of the owners, a so-called “rogue investor,” did not approve of the action desired by the majority. So while DST offerings are selected and structured to lessen the risk from such possibilities, all risk cannot be removed, and it is an additional protection to the investors that the signatory trustee is empowered to take necessary actions (restructure financing, renegotiate leases, sell the property, etc.) to reduce loss.

Another chief advantage of Delaware Statutory Trusts is that the lender deals with the trust as the only borrower, making it easier and less expensive to obtain financing. This is in contrast to a TIC arrangement where the lender needs to approve up to 35 different borrowers. Because the loan is obtained by the trust, there is no need for the individual investors to be qualified and their participation in the trust does not affect their credit rating.

Since the investor’s only right with respect to the Delaware Statutory Trust is to receive distributions, and they have no voting authority regarding the operation of the property, the investor fraud carve-outs are eliminated. The lender looks only to the sponsor/signatory trustee for these carve-outs from the non-recourse provisions of the loan.

Delaware Statutory Trust investors enjoy limited liability to their personal assets due to the bankruptcy-remote provision of the DST. This means that even in the event that the trust fails and goes into bankruptcy, the most that investors would likely lose is their investment in the trust. Any potential creditors of the trust, or the lender, would be limited by provisions in the trust from reaching the other assets of the investors. Therefore, no LLC entity is necessary to hold a DST investment.

Because a private placement Delaware Statutory Trust offering may have up to 499 investors, the minimum investment amounts are significantly lower. Most DST sponsors will set arbitrary minimum investment levels to limit the number of investors to a manageable number, but cash investments can be as low as $25,000 and 1031 exchange minimums are often $100,000.

Delaware Statutory Trust investors typically have no closing costs associated with the creation of a single member LLC as in a TIC offering, saving as much as $5000 per investment.

Delaware Statutory Trust investors do not have to maintain an LLC by paying annual state filing fees that may dilute cash flows.

The signatory trustee of the Delaware Statutory Trust will generally be the sponsor of the private placement offering or one of its affiliates. Unlike a TIC deal, there is no one-year time limit on the trusteeship or the term of the property manager. This will give the lender comfort that the sponsor will have a continuing presence in operating the property.

A Delaware Statutory Trust also has a Delaware trustee (required by statute), so there is no worry that the trust will inadvertently terminate.

Acquiring a DST property relieves investors of the responsibilities of sole ownership. Instead of being responsible for tenant complaints, facility issues and other considerations, DST investors are only responsible for contributing their share of the investment.

When you choose to invest in a DST you are fundamentally relying upon the sponsor for their continued competency and success. The sponsors typically work with property managers and operators who implement the business plan to increase income and lower expenses. On the other hand, they continually survey the market for sales opportunities as they’ll manage disposition. Additionally, they should periodically communicate with investors and keep them abreast of material operational events.

All real estate investments are speculative in nature and there are many unknown future factors, including but not limited to, economic, market, tenant default, interest rate, and environmental issues that could impact the underlying asset value. Potentially, there could be a variety of consequences such as holding period extensions or loss of value. We help our clients mitigate these risks with strong upfront DST due diligence efforts followed by thoughtful portfolio diversification strategies.

There is no assurance that a property will perform as projected and DSTs are subject to economic volatility, tenants not paying their rent timely, and other traditional risks of owning and operating real estate. Forecasted cash flows are typically conservative in nature, but they are not guaranteed and there is potential for reduction or suspension of cash flow distributions.

DSTs generally have target hold periods ranging from 3 to 10 years, although market conditions could dictate a significantly different actual hold period. A DST investment should be viewed as illiquid while invested in the property and early exit by an investor for liquidity purposes may not be possible or may be only possible at a significant discount to the trust’s net asset value.

This type of risk is dependent on macro interest rate trends and is most often associated with DSTs that have longer-term leases, such as retail and office properties in which the property is locked into a pre-agreed upon rental rate. The risk can be mitigated by investing in DSTs with shorter-term leases, such as multifamily apartments as rent can be adjusted with the market.

There is risk of potential conflicts of interest among the various parties involved in a DST program that could adversely affect the investment.

There may be significant fees and expenses associated with the purchase and ownership of a DST. In some cases, the fees and expenses may outweigh the benefits of conducting a 1031 exchange and purchasing a DST.

Failing to properly meet all of 1031 exchange requirements could lead to significant tax consequences. Investors should consult their legal and tax professionals before engaging in a 1031 exchange, including a 1031 exchange into a DST.