
What is a DELAWARE STATUTORY TRUST?
A Delaware Statutory Trust (DST) is a distinct legal entity created under Delaware law that permits fractional ownership of real estate assets that may be used in a 1031 Exchange. However, to use a DST in a 1031 Exchange syndication program, it must comply with the requirements of IRS Revenue Ruling 2004-86, so that a beneficial interest in the trust is treated as an undivided fractional interest in real estate for federal income tax purposes (as opposed to a security or other prohibited interest that would not be treated as real property under Section 1031). An Exchanger can defer taxes by investing in a DST rather than in a whole property.
GENERAL GUIDELINES
Access to more investors than allowed by other legal structures (Maximum 1,999 investors)
Lower minimum investment amount
Simple and efficient investment process
Lender only needs to make one loan because the DST is the sole borrower and owns 100% of the real estate (for non-tax purposes)
Loan carve-outs apply to sponsors, not investors
Lender does not underwrite each investor
Sponsor makes decisions on behalf of the investors
Investors cannot cause a default on the entire loan
Investors do not need separate special purpose entities (SPEs)
WHY INVEST CASH INTO DSTS?
The potential benefits of a DST program are not restricted to 1031 Exchange funds. Investors may also choose to invest directly into a DST, which may provide the following potential benefits:
Tax-deferral strategy
Rental income paid monthly
Ownership in institutional-quality real estate
No management responsibilities/passive ownership
Build your own diversified real estate portfolio
Depreciation of real estate can help to offset taxable income
WHY CONSIDER A DST?
Potential to own institutional quality real estate
Ability to diversify by property type and location
Turnkey solution: Sponsor is responsible for sourcing, due diligence, structuring and financing of debt, property and program management
Fast and efficient closing process to meet timing requirements
Certainty of closing on acquisition of replacement property
Elimination of property management responsibilities
Potential for monthly income
Long-term, non-recourse financing in place
LIMITATIONS ON A DST
The DST must adhere to the following prohibitions, which are commonly referred to as the Seven Deadly Sins (See IRS Revenue Ruling 2004-86):
Once the offering is closed, there can be no further capital contributions to the DST by either existing or new investors
The DST cannot renegotiate existing loans or borrow more funds (except in the case of a tenant’s bankruptcy or insolvency)
The DST cannot reinvest proceeds from the sale of its real estate
The DST is limited to making minor, nonstructural capital improvements, in addition to those required by law
Any reserves or cash held between distribution dates can only be invested in short-term debt obligations
All cash, other than necessary reserves, must be paid out to investors
The DST cannot renegotiate existing leases or enter into new leases (except in the case of a tenant’s bankruptcy or insolvency)