Buying 3 Properties via 1031 Exchange and 1 Seller is Backing Out

Buying 3 Properties via 1031 Exchange and 1 Seller is Backing Out

Investor · Brooklyn, NY · Member since 2015 · 4 posts · 1 vote

This is my first post but I've been a member for several years. I always browse through for the latest trending topics or to find answers to some of my investment questions. This site has always been a great resource to me so I'm hoping someone will be able to provide some guidance on my current situation. I recently sold a multi-family in Brooklyn, NY in January but have been in contract on 3 replacement properties since Nov/Dec. The total value for the 3 replacement properties have satisfied my 'equal and up' requirement under a 1031 exchange. Unfortunately, one of the Sellers is now trying to back out of the deal which will lead to a $235k deficit to my "equal an up" requirement. The Seller insists that because of COVID-19, they no longer have the funds to complete the agreed upon repair list. We've served a Time of the Essence (even accepting the incomplete repairs) and it's still been crickets from the Seller’s end. The Seller is full of it and is using this crisis to try to back out. Despite the money spent on an Inspection, Appraisal, etc., I'm more concerned on the tax obligations I'm now exposed to given I'm past the 45 day identification period to find a suitable 3rd property. I plan to sue this Seller and so does the Realtor because he's being belligerently ignorant at this point despite the threat of litigation. My questions are...(1) has this happened to anyone else, (2) what were the consequences given it was not your fault and (3) were you able to find a suitable investment to avoid the tax obligation? I've been recently reading about Qualified Opportunity Zones but I'm not too excited about this investment option as yet. Any help would be much appreciated. My QI is also trying to work on a solution but they've never came across this type of issue during an pandemic (obviously) and can't predict what exceptions the IRS will allow. Many thanks in advance!

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Investor · SC NC, VA · Member since 2020 · 1k+ posts · 756 votes
6y

So....if I’m wrong I’m sorry to go down this path.  Can you simply buy the remaining 2 and put more cash down?  You don’t need to buy all three of the properties that you list at the 45-day mark.  I’ve done a couple of 1031’s but we may need a wikid smaht QI like Dave Foster to jumP in and get creative.

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  • Avery CarlBusiness Member
    Real Estate Agent · USA · Member since 2016 · 909 posts · 1k+ votes
    6y

    What kinds of repairs are required that they are now refusing to do? If it were me, I'd probably just tell them I am fine with taking the property as-is then and continuing with the deal, assuming the other parts of the deal make sense.

  • Investor · Brooklyn, NY · Member since 2015 · 4 posts · 1 vote
    6y

    @Avery Carl The repairs included minor cosmetic repairs but more importantly the removal of an old oil tank and termite treatment. And I'm willing to accept as-is at this point given the tax consequences, that's why we issued a Time of the Essence. But it's obvious the Seller is just not interested in selling anymore because that didn't persuade him to the closing table. He's just using the repair list as a poor excuse to back out. 

  • Financial Advisor · Milwaukee, WI · Member since 2018 · 110 posts · 96 votes
    6y

    The IRS will treat unallocated amount as taxable boot.  Its impossible to predict what the government will do.  Opp Zone funds are one play, Delaware Statutory Trusts are another and TICs as well.  

  • Investor · SC NC, VA · Member since 2020 · 1k+ posts · 756 votes
    6y

    What was the closing date on your sale of the multi?  When you say equal and up, you mean not only are you committing all the dollars from your sale but the sum value of the three future properties was equal or greater than sale value of your multi?

  • Investor · Brooklyn, NY · Member since 2015 · 4 posts · 1 vote
    6y

    @Mark H. Porter My multi sold on Jan 16th. My old property sold for over $900k and the aggregate purchase price for the 3 properties is approx. $1.1 million.

  • Investor · SC NC, VA · Member since 2020 · 1k+ posts · 756 votes
    6y

    So....if I’m wrong I’m sorry to go down this path.  Can you simply buy the remaining 2 and put more cash down?  You don’t need to buy all three of the properties that you list at the 45-day mark.  I’ve done a couple of 1031’s but we may need a wikid smaht QI like Dave Foster to jumP in and get creative.

  • Investor · SC NC, VA · Member since 2020 · 1k+ posts · 756 votes
    6y

    Sorry, you may also want to investigate if DST's can consume some of it.

  • Investor · Omaha, NE · Member since 2011 · 475 posts · 211 votes
    6y

    @Kia Skelton Sorry for your troubles but all isn't lost on the portion of the 1031 that falls out. In 2018 I had a partially failed 1031 but was able to avoid the capital gain when I was able to purchase another property outside of the 1031 and used a cost segregation study to 100% depreciate in that year the $ I invested in the new property. Just another option for you.

  • Dave FosterBusiness Member
    Qualified Intermediary for 1031 Exchanges · St. Petersburg, FL · Member since 2013 · 9k+ posts · 9k+ votes
    6y

    @Kia Skelton, Great suggestion by @Mark H. Porter if it's a cash issue.  If the two properties you are buying are worth $900K (or close to it) then you can simply put more cash down on them so you use up all your cash on the two purchases and then if there's any difference between the 900 sale and your actual purchase then only that amount would be taxable.

    I like @Avery Carls suggestion of taking as is where is to make the deal happen.  But Before you accept an oil tank "as is" I'd do a careful assessment.  I almost got burned by one of those a few years ago in Stamford.  underground oil tanks can bit you.  You do have some tax exposure.  But it might be cheaper in the long run to sue for specific performance and damages rather than accepting an oil tank as is.  

    The 1031 Investor5137 Reviews
  • Investor · Brooklyn, NY · Member since 2015 · 4 posts · 1 vote
    6y

    @Dennis Tierney and @Dave Foster Thank you so much for that information, gives me a lot to consider. Thank you everyone who responded!

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