Jenner & Block

Real Estate Securities

Jenner & Block has one of the nation’s leading real estate securities practices.  Our experienced team of tax, real estate, securities, corporate, finance, ERISA and environmental law attorneys provides comprehensive guidance regarding all aspects of traditional real estate investment vehicles (using partnerships and limited liability companies), tax deferred real estate investment vehicles (using tenant-in-common arrangements and Delaware Statutory Trusts designed to satisfy the “like-kind” exchange requirements of Code Section 1031), and Real Estate Investment Trusts (“REITs”).

We provide a broad range of services to our real estate securities clients, including:

  • Designing and documenting tenant-in-common (“TIC”) and Delaware Statutory Trust (“DST”) real estate investment programs that comply with the “like-kind” exchange requirements of Code Section 1031.
  • Negotiating with lenders and servicers regarding modifications and buy-outs of loans secured by real estate investment program property.
  • Forming partnerships and limited liability companies for real estate investments, including real estate development joint ventures and other non-REIT real estate investment funds.
  • Advising real estate investment program sponsors regarding Securities Exchange Commission disclosure and reporting requirements and FINRA compliance, including requirements applicable to public, non-exchange traded and private REITs and to other real estate investment programs subject to the private placement rules of Regulation D. 
  • Counseling sponsors, lenders, investors, property managers and others regarding the unique tax and business issues that arise in workouts of real estate related loans, with a focus on workouts of TIC and DST programs.
  • Providing REITs with guidance on securities, corporate and tax issues specific to the various stages of their life cycles, including formation, initial public offerings, follow on offerings, mergers and acquisitions, and management company “internalization” transactions.

Our experience in real estate securities matters is the result of counseling diverse and dynamic clients, including:

  • Sponsors of traditional and tax-deferred real estate investment programs
     
  • Real estate companies and REITs
     
  • Mortgage bankers and institutional and private lenders
     
  • Developers of institutional-quality properties in commercial, multi-family and industrial markets
     
  • Real estate investors, including entrepreneurs, developers, pension funds and other tax-exempt entities, and foreign investors
     
  • Replacement property professionals and consultants
     
  • Asset and property managers
     
  • Broker/Dealers

Further information regarding the experience of our Real Estate Securities Practice includes the following:

Tax-Deferred Real Estate Investment Programs using DSTs and TICs

Jenner & Block is a national leader in representing sponsors of real estate investment programs designed for investors seeking to complete tax-deferred exchanges that comply with the requirements of Code Section 1031.  We have been at the forefront of the TIC and DST industry since it began to take shape in 2002, and our firm played a key role in negotiating with the Internal Revenue Service to issue Revenue Ruling 2004 86, recognizing beneficial interests in syndicated DSTs as direct interests in real estate for Code Section 1031 purposes.  We are experienced in assisting our clients with all phases of sponsored TIC or DST programs, including program design and structuring, marketing, real estate acquisition, financings and refinancings, real estate and environmental due diligence, and securities law compliance.  When needed, we also provide comprehensive guidance on program workouts.  In all, our unique combination of skills in tax, real estate, finance, securities, and environmental law make us a go-to law firm for clients who need creative, comprehensive solutions to their most challenging transaction problems. 

Real Estate Investment Trusts

We advise REITs on business, corporate, securities, and tax issues at all stages of their life cycles, from formation through going-public transactions and beyond, and concentrate on advising our REIT clients on internalization transactions.  Our corporate and securities practices, coupled with our extensive tax and real estate experience, create a transactional team that is a national leader on REIT management internalizations, which, for many REITS, is the most significant event in their life cycles.  From understanding the fiduciary duty considerations associated with undertaking a transaction in which director and officer conflicts of interest may be present, to structuring and negotiating the terms and conditions of the transaction agreement, to advising on related securities and stockholder approval matters, Jenner & Block brings a wealth of experience to bear.  Our team of attorneys, which includes former senior SEC personnel responsible for reviewing real estate securities offerings, enables us to provide REIT-related SEC and securities advice at the highest level. 

Joint Ventures and other Real Estate Investment Funds

Our team of real estate, tax, corporate, securities, and ERISA attorneys structure investment vehicles for the acquisition, financing and operation of real estate investment projects.  Our diverse clientele includes developers, entrepreneurs and investment program sponsors, lenders, pension and benefit funds, tax-exempt organizations, and foreign investors, and each faces particular business, legal and tax issues with respect to their real estate investments.  Sensitive to those issues, we design creative structures for real estate partnerships, limited liability companies, joint ventures, and other real estate investment vehicles, and these structures enable our clients to achieve the operating results they desire while minimizing the tax impacts relating to the ownership, operation and disposition of real property. 

Finance in Real Estate Investment Programs

We represent real estate securities clients in connection with the financing on their transactions in both the good times and the challenging times.  In good times, we assist clients in structuring, negotiating and documenting their financing with some of the largest financial institutions in the country.  In challenging times, when a property fails to perform as expected and a loan default exists or is imminent, we counsel clients regarding their options, assist them in communications with investors, lenders, servicers and other third parties such as franchisors, and negotiate and document loan workouts and restructurings. In addition, we have assisted clients in structuring and documenting creative and mutually beneficial solutions to the myriad issues relating to distressed assets, including the sale of a property in foreclosure to a third party pursuant to a discounted payoff agreement with the lender and the acquisition of a loan in default by a subset of investors.  With substantial experience in real estate, tax and securities, our cross-disciplinary practice group offers our real estate securities clients a comprehensive suite of services relating to their financing.

Securities and Compliance

We have extensive experience in a wide variety of securities transactions, ranging from private placements to the very largest public offerings.  We regularly counsel real estate securities clients on the full spectrum of securities issues with respect to all phases of their offerings and capital raising activities, including drafting public and private offering documents (private placement memoranda, marketing and subscription materials); the mechanics of the offering process and compliance with the myriad of federal and state filing requirements; post-offering communications; 1934 Act reporting; and on-going disclosure matters.  We have provided guidance and interpretive advice on disclosure issues unique to the real estate industry, including roll-ups, prior performance disclosures and exemptions from registration requirements.  Our attorneys understand the increasingly complex securities regulations and disclosure issues facing our clients, and we work with clients to develop policies and procedures designed to prevent problems before they arise.  We take great pride in providing accurate, practical advice to assist our clients in making sound decisions and meeting their objectives in a timely manner.