How Direct Deeding Applies to 1031 Exchanges

In a 1031 exchange the relinquished property is typically conveyed directly from the taxpayer or exchanger to the buyer. That's called direct deeding because the taxpayer deeds the property directly to the buyer.

In order to avail yourself of direct deeding you need to have assigned the rights in the sale contract for the relinquished property to your intermediary.

Back in the Day

In the olden days the taxpayer would actually physically convey the relinquished property to the intermediary, and then the intermediary would deed it to the buyer. But that extra recording was cumbersome and unnecessary so the IRS now allows for direct deeding, but they extracted a concession.

They said if you are going to use direct deeding, you have to assign the rights in the sales contract to the intermediary, and further you have to give notice to any other parties to that contract that you've assigned your rights to the intermediary. Thus, we’ll have a notice of assignment that will be signed by the buyer of the relinquished property as well as any other party.

Replacement Property

The same goes for the replacement property. The seller of the replacement property will typically deed the replacement property directly to the taxpayer that's doing the exchange. And the taxpayer doing the exchange will assign to the intermediary their rights in the purchase agreement for the replacement property.

Again, we have to give notice to the seller, as well as any other parties that replacement property purchase contract that the exchanger is assigning their rights to the intermediary. The prudent thing to do is to get something signed by the other parties stating “yes I received this notice.” Then you’ll have that just in case you’re ever audited.

• Start Your 1031 Exchange: If you have questions about 1031 exchanges, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2021 Copyright Jeffrey R. Peterson All Rights Reserved

Direct Deeding in a 1031 Exchange

In this 1031 FAQ video, Jeff Peterson talks about direct deeding in a 1031 exchange. Watch more 1031 educational videos here.

• Start Your 1031 Exchange: If you have questions about direct deeding in a 1031 exchange, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2017 Copyright Jeffrey R. Peterson All Rights Reserved

What is Direct Deeding in a 1031 Exchange?

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.

1991 Regulations

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.

Written Notice

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

• Start Your Exchange: If you have questions about direct deeding, feel free to call me at 612-643-1031.

Defer the tax. Maximize your gain.

© 2016 Copyright Jeffrey R. Peterson All Rights Reserved