Many people are asking “what is direct deeding?” In the olden days before the 1991 regulations, when you did a 1031 exchange you would physically deed the property to your intermediary and then the intermediary would sell the relinquished property to a third-party buyer. So the intermediary came into the chain of title.
Then the intermediary would acquire the replacement property and deed it to you to complete your exchange. Again the intermediary would come into chain of title on the replacement property. Well those extra deeds that had to run through the intermediary created extra expenses, paperwork, and complications.
In the 1991 regulations it was adopted that the intermediary could merely be assigned the benefits or rights in the contract between you and the buyer of your relinquished property, and between you and the seller of the replacement property. So the intermediary, rather than taking a direct deed in the properties, would instead merely be assigned the rights in these purchase agreements or sales contracts with the other parties.
And by doing that we now allow the taxpayer to deed relinquished property directly to their buyer, and to receive the replacement property by deed directly from their seller. There's one caveat - the assignment of the purchase agreements under Old English common law and under the regulations adopted by the IRS; those assignments were not considered effective unless everyone to the original contract was given a written notice of that assignment.
So in order for the assignment to the intermediary to be considered valid we must give written notice to all of the other parties to the purchase agreements which generally means you want the buyer of the relinquished property to sign an acknowledgment that says "yes I received notice that the seller has assigned their interest in the purchase agreement to the intermediary." And the seller of the replacement properties says "yes I acknowledge I was given written notice of the assignment by the buyer to their qualified intermediary." These acknowledgements of notice don’t adversely affect the other parties in the least but they serve as substantiation to prove you gave the written notices that are required.
It’s a prudent practice to put a cooperation clause in your purchase and sale agreements requiring the other parties (including any assignees) to cooperate in providing these written acknowledgments at or prior to closing. That way you will have the proof (in writing) that you complied with the regulations for direct deeding
- 1031 Hotline: If you have questions about direct deeding, feel free to call me at 612-643-1031.
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