Edited Transcript from ‘Real Estate Syndication and Raising Capital
A Loomba Investment Group video hosted by Vinki Loomba
Featuring Special Guest Kim Lisa Taylor, Esq.
Originally recorded Jan. 20, 2022
I would like to welcome everybody; thanks for joining us for this session. And I’m going to share a small little disclaimer before we get started: This session is strictly for educational purposes and should not be considered as a legal accounting or investment advice. Please consult your own attorney, financial advisor, or CPA for any legal matters or investment or specific tax situations.
Today our topic is “Real Estate Syndication and Legally Raising Capital,” and our special guest is Kim Lisa Taylor. She’s a nationally recognized corporate securities attorney, speaker and author of No. 1 Amazon selling book “How to Legally Raise Private Money.” She’s the founder of Syndication Attorneys, PLLC and investormarketingmaterials.com. She has been the responsible attorney for hundreds of securities offerings. Welcome Kim, I’m super excited to have you today.
Kim Lisa Taylor:
Hey, thank you so much. Thank you. It’s always fun to speak with you.
Thank you. Likewise. And another item I wanted to mention is if you have any questions, please put your questions in the Q&A box so that we can answer as we go along. So Kim, all yours.
Kim Lisa Taylor:
Great. So thank you everybody for sitting in with me today. Some of you may have seen me speak before, but it’s probably good to hear it again. There’s a lot of information in these slide presentations, so I’m hoping that every time you hear about it you learn a little bit more, and it sinks in a little deeper. The whole point of learning is to gain confidence so that you can go out and legally raise private money, and you don’t have to worry that you’re breaking any rules because you feel like you understand them. So that’s the whole point of today’s presentation.
We’re trying to take the fear out of raising private money with knowledge. Our disclaimer, pretty much the same as Vinki’s, this is for information purposes only, there’s no guarantees, the results depend on you. This is not legal advice; we don’t have an attorney-client relationship unless you are signed up as a client of our firm. But we would love to have you as clients of our firm, and we’ll talk to you about ways that you can participate with us low-cost even before you have a syndication. I am a No. 1 best-selling author, I did author the book “How to Legally Raise Private Money.” I wrote the whole thing myself. I wrote it in plain English so that everybody could understand what you need to do to be able to do this legally and without fear. I am the founder of Syndication Attorneys, PLLC.
I also was a partner in two former securities California law firms that no longer exist. My husband and I did syndicate a 27-unit apartment complex with some friends and we owned it for nine years and sold it in 2019. I also used to be a property manager; I used to manage a 264-unit multifamily property in Southern California. I am a licensed real estate broker in Florida, formerly in California. And then I’ve also gone through some courses with Richard Wilson’s Family Office Club to become a certified capital raiser. I have helped hundreds of people; I think the count is somewhere like 400 clients, probably more than that now over the course of my career, I’ve been doing this since 2008. The offerings we’ve written have helped people raise well over a billion dollars in order to buy three times that much real estate.
So first let’s talk about what you need to know to legally raise private money. It seems complicated, but there’s really just three things. Think of it like learning to drive; when you learn to drive you need to learn how to abide by the road signs so that you stop when you’re supposed to, you yield when you’re supposed to, you don’t get in an accident. You also need to learn how to get from here to there, so you need to learn how to read a map, or at least we used to learn how to read maps. Now you have navigation, but still sometimes maps are helpful or even just looking things up on your phone and figuring out where you have to turn, you’ve still got to figure out how to navigate.
And then you also need to learn how to operate the vehicle, so you’ve got to learn how to safely operate the vehicle and how to drive it and how to maintain it. So these are really the three parts. With securities, you really have to learn how to comply with securities laws, so that really is just learning what securities laws apply to you and making sure that to comply with them and we’ll talk about that. You also need to figure out how to split money with investors; that’s kind of a mystery. I know that the first time I ever went to a multi-family training, I was actually in a coaching program with REMentor way back when and I remember it was just a big mystery to me.
I wasn’t an attorney then, soI wasn’t practicing in this area of the law, so I didn’t know what kind of agreement you would have to write. What’s a fair amount to split with investors? How do you figure all that stuff out? That’s part of what have to learn in order to be able to syndicate. And then you need to learn how to legally market your offering, so we’re going to talk about what is an offering and then how you can approach prospective investors about investing in it with you without getting in trouble with securities laws. So how to comply with securities laws, the Securities Act of 1933 defines what things constitute securities. They created this big long list of things that are securities. And the very first thing on that list is a note, as in a promissory note, and then later on down the list is something called an investment contract.
Those are the two that primarily pertain to real estate investors, so when you get to the big lending world and institutional loans and stuff like that, there’s a whole lot of other things that comply, but for basic everyday investors you’re dealing with either promissory notes or investment contracts. The Securities Act of 1933 also required that you disclose all the material facts that your investors need to make informed consent. Before they make their investment decision, they have to know everything —good and bad risks about that deal, they have to know things about you. So if there’s anything in your past that would affect their buying decision, you have to disclose it. If there’s anything about the property that could affect their investing decision, then you have to disclose it.
They’re really looking for the same kind of information that you are gathering when you’re conducting due diligence. They’re just looking for you to do it on their behalf and then to present them with that information so that they can make their own informed decision. And then also the Securities Act imposes penalties for non-compliance. One thing that the Securities Act of 1933 said was that the offer or sale — so it’s either the offer, just asking somebody to invest with you is regulated, or the sale of securities — must be either registered or exempt from registration. Registered means that you’re going to go through a preapproval process with the regulatory agencies and get their blessing and get their buy off, if they’ll allow you then to offer your securities to the general public.
So this is what people do when they do an initial public offering or when they take their company public. That’s actually the registration process that they’re going through, and then once you become a registered company then you have some ongoing reporting obligations and things like that. Some of you may have heard a couple years ago, Elon Musk was getting in trouble with the SEC all the time, because he’d tweet something about his company that would affect stock prices. So there’s all kinds of regulations that come into play about what you can say and what you can’t say about your securities when you’re a registered company. Registration is a big ordeal and it doesn’t work for real estate investors because you don’t have time. A registration is going to take you six to 12 months, whereas you’ve got to close on this property within 60 to 90 days and maybe 120 days if you can get an extension, so you need to find an alternative.
And so the alternative is that you can qualify for an exemption from registration. First let’s understand what’s an offer: An offer is anytime you offer something in exchange for someone’s money. I used to have to have a racy slide here — a couple people were offended by it, so I’ll just describe it: There was a scantily clad person of the female persuasion who was kind of leaning on a car door with a gentleman inside and they were having a conversation. So that is an offer; that’s actually what’s called a solicitation, where they were actually having a conversation about paying money for something — so that’s an offer. But in your case, it’s offering a piece of paper in exchange for somebody’s money, so that promissory note: they’re going to give you money, you’re going to give them a promise to pay, it’s written on a promissory note.
Or they’re going to buy interest in your company and you’re going to give them an LLC operating agreement or a limited partnership agreement, which describes your obligations to each other. They’re going to put up the money and here’s what you’re going to do in exchange for that money. When you’re presenting those opportunities, you’re presenting an offer.
We talked about the fact that securities are either promissory notes or investment contracts, so what is an investment contract? This was actually decided in 1946 by the U.S. Supreme Court regarding a case in Florida. In central Florida there’s a little town called Howey-In-The-Hills, which is amazing because if you live in Florida, or if you ever been, there are very little hills.
But in central Florida there is a little like a 300-foot ridge line of hills. And in this little area is this town and in the town was an orange grove operator who decided that they wanted to bring some investors into their orange grove operation. So they started selling off little plots of land that had trees on it, and it eventually got to the point where they were selling off individual trees. But not just the tree, it wasn’t like, “Hey, here’s your tree, come pick your oranges.” It was like, “No, you buy this and then we will harvest the oranges and split the profits with you.” And so that went well for a period of time, and then eventually the orange grove operator either wanted to retire or decided they didn’t want to do it anymore. So they started sending letters to people saying, “Here’s your tree, here’s your plot of land.”
And the investor said, “That’s not what we bought. We didn’t buy a tree. I didn’t buy a plot of land. I bought an investment contract with the understanding that you were going to harvest the oranges and share the profits with me.” So out that came this definition of what is an investment contract. And ultimately what it is, it’s an investment of money in a common enterprise with an expectation of profits based solely on the efforts of the promoter. That’s called the 4-Prong Howey Test. You guys can look up that case if you want to read about it. So: an investment of money in a common enterprise with an expectation of profits based solely on the efforts of the promoter. Another way to say that is, anytime you have passive investors that are looking to you to generate the profit, or you’re taking control of their money, and they’re relying on you to give back their money plus profit, then you are selling an investment contract.
Some examples of that are interests in a limited liability company, interest in a limited partnership, corporate shares or stock, or just any kind of passive investment.
So what is syndication? You hear that word a lot, and then of course the name of our firm — Syndication Attorneys — what does that mean? Well, a syndication is really just organizing a group for a common purpose, to promote a common interest, or to carry out a particular business transaction, so it’s really just pulling resources. Some people are pulling time, some people are pulling money, some people are pulling knowledge, and you’re putting all that together in order to accomplish a common goal, so that is syndication. Syndication doesn’t work just in real estate; you could syndicate a plane, a yacht, anything that you can imagine can be syndicated if you need to pool resources and money together in order to accomplish that goal.
What is the difference between syndication and a joint venture? In a joint venture, you have an investment of money in a common enterprise with an expectation of profits, but the investors are responsible for generating their own profits. There are no passive investors;, all the members are actively involved in generating their own profits. That truly is the hallmark distinction between whether what you’re offering is a joint venture, or you’re offering passive interest in a syndicate. One time when an SEC commissioner at a meeting was asked, “How many times when somebody asked you if something is a security or not a security, does it turn out that it’s not or that it is?” he said, “95% of the time, it turns out to be a security.” So I see a lot of people making the mistake of advertising for joint venture partners when they really want passive investors.
You have to be super careful about that because it’s not what you call it, it’s what you do that’s ultimately going to turn determine whether or not you actually sold securities to those people, or if they were actively involved in generating their own profits. I was in a joint venture one time, where two of us were doing all the work, and there were two other people that were putting up the money. We never took control of their money; they created the bank account. When we had bills that had to be paid, we presented that to them and they paid them. So we really worked hard to make sure that that was not us taking control of their money because that’s not what they wanted, and that’s not what we wanted in that time. It does also change the tax consequences, so you have to be cautious about that and you want to do that with the help of a tax advisor.
But here’s the problem with joint ventures: You have too many people who are making decisions and the typical structure that you used for a joint venture is a member-managed LLC. When you’re forming an LLC, you can either create it as member-managed, or you can create it as manager-managed. And if it’s member-managed, that’s what you use for a joint venture and in that case, all of the members are considered to be managing members, they all have the right to contractually bind the company to open and close bank accounts, to make all decisions related to management of that company. The magic number for joint ventures is five; anything above five is doomed to fail — and that’s just based on my own personal experience. So five or less in a joint venture seems to work, five or more in a joint venture I’ve seen that end badly many times, and the worst case scenario ended in litigation immediately after the property closed.
So you’ve got to be careful about putting too many people into a joint venture; it just doesn’t work, there’s just too many opinions and you never get anything done.
There are three types of securities offerings. When you’re offering these securities, these investment contracts to investors, that’s called a securities offering. We call it a syndicate; a syndicate really just describes the whole structure that we’re putting together, but the offering documents themselves that we’re creating are called a securities offering. So there are three types of securities offerings: there’s a registered offering, there’s an exempt offering, and then there are illegal offerings.
If somebody approaches you and asks you for money, then they should be able to tell you what exemption they’re following and they should know the citation, and the legal citation and code number for it. If they don’t know, then they probably don’t know what they’re doing, and you want to be very careful about that because there’s really only four kinds of people that don’t follow securities laws: There’s people that don’t know— so none of you who are on here today can fall into that category anymore, there are people who don’t care, and there’s people who are in denial. I’ve talked to several people over the years that have come to me and just said, “Oh, we just put together a limited partnership.” And I’ve had a bunch of real estate attorneys tell me that, “Oh, we just put together limited partnerships. We just draft this. We just draft that.” They don’t know, they don’t know that they’re violating securities laws by doing that, and that there’s specific rules that they have to follow in order to be able to do that.
But then there’s also those people who actually have been one of those other things and gotten caught that are now in jail. There are a lot of people in jail for securities fraud or securities violations. Bernie Madoff was one of them, that’s certainly the most famous case. But you’ve also probably heard of Charles Ponzi, Ponzi schemes, that’s where you’re raising money from new investors to pay back old investors because the investment scheme that you had them invest in wasn’t viable enough to pay them back what you promised.
When do you need to follow a securities law? Anytime you’re raising money from passive investors — so they’re not going to be actively involved in generating their own profits — then you are going to be selling securities in the form of investment contracts. If you’re selling interest in a company to passive investors, again, you’re selling investment contracts or if you’re repeatedly borrowing private money.
So promissory notes … if you’re borrowing money in an isolated transaction, nobody really cares about that, but when you’re in a business that requires that you continually go out and have a continuing source of private lenders, this is mostly applicable in the single-family investing world. So somebody who’s a fix-and-flipper is going to keep going out to family and friends and other people that they meet, and asking them to loan them money so that they can flip the next house. If you’re getting money from someone who’s in the business of loaning money, like a hard money lender, don’t worry about it because they have rules they have to comply with. You don’t have to worry about whether you’re selling them securities or not, that’s their burden to bear. But when you’re talking to ordinary people who are not in the business of lending money and you’re repeatedly borrowing from them, then you also do need to comply with securities laws, so what does it mean?
That means again, you have to register your offering — so get preapproval from regulators, which takes too long and is very expensive — or choose an exemption. And then not only do you have to choose the exemption, you have to document how you complied with the exemption, so think of this like a tax deduction. With a deduction, you can fill out your IRS forms and you’re going to answer probably a series of questions on Turbo Tax or something like that, and then because of those questions they’re going to say, “Oh, you’re entitled to this exemption or that exemption.” And that’s all fine unless you get audited and if you get audited, then the IRS is going to send an agent to your house and say, “Show me the documentation that says that you’re entitled to this deduction.” And if you don’t have that documentation they’re like, “Hey, let me see these receipts. Let me see this.”
If you don’t have that documentation then they’re going to take that deduction away and they’re going to force you to pay the tax, plus they’re going to give you penalties and interest. And so you’re going to end up not getting that deduction after all. The same thing can happen with securities: If you don’t document compliance and you get a letter from a securities regulator saying, “Please show me how you complied with this exemption,” and you don’t have anything to show them, then you’re going to end up being one of these people. But if you do have a whole bunch of paperwork to show them because you documented how you complied with that, then you’re going to be fine, you’re going to be in good shape.
There’s the Securities and Exchange Commission, that’s the federal securities agency, but then every state has its own securities agency. So every single one of them has the same ability to enforce against you that the Securities and Exchange Commission does.
What happen is that you have an investor who something happens, they don’t like you, they don’t like the deal, they heard it on CNN that the sky is falling and they want their money back. And they start asking you, “Hey, I need my money back; this happened.” And you’re like, “I can’t do that, it’s invested in this property; I’m not able to do it.” And then they get upset and they go seek an attorney, who is either going to start asking you for all this information because they know that if you can’t provide it, they’ve got a gun to your head and they can say, “Well, you didn’t comply with securities laws, so you have to give everybody’s money back.” Or that person who’s upset is going to complain to their own state securities regulator, who is then going to investigate what you’ve done, and they’re going to be looking to see if you followed the securities exemption and then you documented compliance.
So what kind of securities exemptions are there? The typical exemption rules could limit the amount of money that you can raise, they could limit the number of investors you can have or impose certain financial qualifications on people who can invest with you. They usually will restrict or actually prohibit advertising, so there could be some advertising allowed or maybe no advertising allowed. They’re going to all require that you disclose all those material facts and all the risks of the investment, so all the different things that could go wrong, that could cause those investors to lose all or part of their investment, that’s going to have to be disclosed. And then you have to do these securities notice filings, which are usually required within 15 days of when the investors’ funds become irrevocably, contractually committed, so 15 days. You could be following an exemption, either the federal exemption, which most of our clients choose, or you could be doing an intrastate exemption. The intrastate exemption means you, the property, every investor are all contained in one state.
If you aren’t going to have that situation — where maybe you’re buying property out of state, or you have investors from multiple states — then it all of a sudden doesn’t make sense to comply with the intrastate exemption, you will then need to follow the federal exemption. And the reason is because the federal exemption that most clients use will preempt all the individual state laws, so you don’t have to make sure that your offer complies with four or five different states laws, which could have completely different rules for each one, which would become very difficult.
So what kind of investor qualifications might these impose? A term that you’ve probably heard before or will need to understand if you’re going to do this is “accredited.” What’s an accredited investor? That’s someone who has over a million dollars net worth excluding any equity in their primary residence, or they have $200,000 a year income if they’re single, or $300,000 a year income if they’re a married or married-equivalent couple — so that was recently changed to include married-equivalent just last year.
Also, there are some newer definitions of accredited investors that include people with certain securities licenses or also knowledgeable employees. If you have a knowledgeable employee that’s working for you on this fund and they understand the fund or your syndicate, then they could qualify as an accredited investor, but also there’s an exemption that applies to the members of your management team. Any officer, director, or person involved in management of that syndicate is by definition an accredited investor, so you can invest in your own deals, but you’re only accredited for purposes of your own deal. It’s not like, “Oh, I was the manager of this, so I can go invest in somebody else’s deal as an accredited investor.” You would then have to qualify based on one of these other criteria. Here are some examples of some securities exemptions.
Every year there are about 25,000 Regulation D, Rule 506 offerings filed with the SEC, so we file a Form D with the SEC to tell them that we’re claiming this exemption. And then it’s on us to document internally how we’ve complied with the rules of that exemption and then we’re entitled to claim it. The most common one by far out of the 25,000 Reg D, Rule 506 offerings filed each year, about 90% to 95% of them are Regulation D, Rule 506(b). This was the original rule; this has been in place since about the mid 1980s, this was originally called the “country club rule.” And the reason they called it that was because people who were hanging out in the country clubs were like, “Hey, what are you investing? ‘Oh, I’m buying this apartment complex.’ Hey, I want in on that.” At that time there was no other way for them to do that without either doing a joint venture or doing this registration process, which was way too onerous.
Then the SEC came out with this, “Well, you can do this private offering, so as long as we make sure that the people that invest with you meet some certain minimum financial qualifications, that they know you, they know who you are, and then we’ll allow you to do these limited private offering.”
So what are the rules? There is no dollar limit, so you can raise a billion dollars if you wanted to, but in order to do that you’d have to know a whole lot of people. There is no general advertising or solicitation to the public allowed in a Reg D, Rule 506(b) offering. So that means that in order to prove you didn’t advertise, you have to be able to show that you had a pre-existing, substantive relationship with that person. “Pre-existing” means it predated your offer to them. “Substantive” means you had to have had a conversation with them about their suitability to be in your deal.
You want to make sure you’re not taking somebody’s last money, that they could afford to lose the money, that they’ve invested in other things before, they’re capable of understanding the offering documents either by their own past experience, their education or the assistance of an investment advisor. There is an article — if you go to www.syndicationattorneys.com and go into our library and select “Articles,” the very first article there is called “How to Create a Substantive Relationship.” I recommend everybody should read that article because it really lays out what the SEC says is necessary to demonstrate that pre-existing substantive relationship, and it even has some example questions that you could ask your prospective investors.
According to the SEC, until you’ve established this substantive relationship, you can’t make offers to people. So just because you’ve known someone for a long time, or they’ve been on your mailing list, or they’re in your meetup, doesn’t mean that you know the right information about them to have a substantive relationship, to be able to offer them investment opportunities. You’ve got to take the time and lay the groundwork, develop that relationship.
So for Reg D, Rule 506(b), you can have an unlimited number of accredited investors and up to 35 non-accredited, but sophisticated investors. So “sophisticated,” again, means somebody who by themselves or with the help of an investment advisor has the background, experience or education to be able to understand the merits and risks of the offering and whether it’s appropriate for their portfolio. I know that’s kind of a mouthful, but it’s more than just somebody with a job and some savings.
Maybe there are other people that constantly attend Vinki’s podcast, and they’ve been following some real estate trainers or some other thing that made them sophisticated. You can actually make sophisticated people by teaching them yourself, but you do have to have a prescribed educational program that you would have to walk them through, and have a way to demonstrate that they actually did participate. This is how a lot of these real estate training companies — REMentor, Jake and Gino, Rod Khleif, Joe Fairless, Michael Blank — all these guys originally started out by, “Oh, I have to teach people how to be sophisticated.” And the next thing they learned is that, “Hey, this is a big business. We should just go into the training business.” And while they’re still investing, they’re constantly building their database of prospective investors, and they’re developing relationships with them and they’re making them sophisticated.
I’m not suggesting that you have to go through that level of effort to make people sophisticated, but you do have to make sure that the people who invest with you are sophisticated, and there’s nothing that beats face-to-face, in-person connections with investors. Trying to find people through search engine optimization or on LinkedIn or all of that, that’s all well and fine, but you’ve got to at least have a Zoom call, so you can get face-to-face with someone, or at least have phone calls. The more that you meet in-person in your own community and widen your network of investors from your own circle of influence is going to serve you the best over your syndication career.
Securities notice filing … so we talked about these, they have to be filed. And then if you are going to have even one non accredited investor in your deal, then you have to have a private placement memorandum, which is the disclosure document that describes all the risks. If you have only accredited investors in your deal, you’re not required to have a private placement memorandum, but you are still required to disclose all the material facts, so you might want to think about that. If you only have two to four people that you know extremely well, they completely understand your business, it’s probably okay not to have a private placement memorandum, also known as a PPM or an offering circular. But if you’re going to have more than that, then you’re going to want to have a private placement memorandum and the reason is because it protects you.
It protects you in the way that if something happens at the property that causes somebody to lose all or part of their money, and you’ve warned them about it in the PPM, then they’ve assumed that risk. And they’re going to attest to the fact that they assume the risk by signing a subscription agreement where they’re going to tell you, “I read the PPM, I understand the risks, I can afford to lose the money, and I know I could lose my money, and I’m going to invest anyway.” So they assume the risk by reading the PPM and filling out that subscription agreement so that you are not responsible for the things you warned them about. Now, you’re always going to be responsible if you break the law, if you allow illegal things to happen at your property, or you steal money, or you allow somebody in your management team to steal money; you’re always going to be held responsible for that.
The other thing that came out of the JOBS Act was that in 2012, when the JOBS Act was passed by Congress, the complaint was, “Hey, why can’t we advertise? This is a digital age, everything happens on the internet, we should be able to advertise.” And the SEC relented a little bit and said, “Okay, fine. As long as the only people that invest with you are verified, accredited investors, then we will allow you to advertise.” So the investors in the Rule 506(b) offering, they can self-certify, they fill out the subscription agreement, we give them definitions, they say, “Yep. I meet this, this, this, and this.” In the Rule 506(c) they actually have to show their financial statements or their income statements to someone with a license or to you, but it has to be documented what you looked at and how you determined that they’re accredited.
And now, as of last December, if someone does get verified as an accredited investor with you, that verification is good for five years with you. Doesn’t mean you can take their verification for somebody else’s deal and use it on your deal, you need them to verify for you. But in subsequent offerings, then you would just ask them to attest that they still meet the financial qualifications from before. You can have an unlimited number of verified accredit investors, there’s no dollar limit on how much you can raise with the Rule 506(c) offering. You can use a crowdfunding platform, which could be your own website. There are crowdfunding platforms that will actually bring investors to you for a fee, but they’re very, very selective about who they’ll take, and then want people who have done five or 10 deals start-to-finish before they’ll even let you on their platform.
You still have to do the filings and the disclosure documents; we routinely recommend that if you’re advertising for investors that you really need to ask, you need to have a private placement memorandum because that protects you, again.
I happen to be licensed both in Florida and California, so we do federal offerings in any state; we’re able to help clients all over with the federal offerings, and then we can also help you intrastate for Florida or California offerings. So there are some private offerings — these would be those intrastate exemptions — where everything’s contained in the state. And you can see that their rules are a little bit similar if you look at the suitability standards, but sometimes they aren’t. Like in Florida, you don’t have to have a pre-existing relationship and you can have unaccredited and not even sophisticated investors, but you’re still not supposed to find them through advertising.
So you’ve just got to be able to demonstrate that, “I didn’t advertise for this person, I found them a different way.” In California private offering exemptions, investors either have to be sophisticated or you have to have a preexisting relationship, so every state’s just a little bit different.
What defines the relationship … “preexisting” means it predates the offer, “substantive” means that you have determined their suitability before you made the offer. And how do you do that? You have to have that documentation, so you’re going to need some kind of a CRM. There are all kinds of investor management platforms out there. We have a relationship with Groundbreaker — groundbreaker.co — they actually offer our clients a 50% discount off their onboarding, they’ve been around for a long time, they’re really reliable. There are many other investor management platforms out there that you can use, or you could use a good old Excel spreadsheet or something like Active Campaign, or there is one Google used to have… I don’t know if it’s still free, but it used to be free for two people called Insightly, I-N-S-I-G-H-T-L-Y, and we used that for a while. Insightly is a good starter one and you can always download all your information and upgrade to a different system later on, if you want to start doing some kind of marketing campaigns and things like that.
The next thing we need to learn is how to split money with investors. Here is a typical joint venture structure: it’s a member-managed LLC, we got three members they’re all actively involved in generating their own profits, this could be to buy an asset where people are pooling some money and their time in order to do it. Or you could use this also as the manager of a syndicate, so that’s very typical for a manager of a syndicate.
A typical specified offering structure … so “specified offering” is where you’re raising money for one thing, you’ve got something under contract right now, you know exactly what it’s going to cost to buy it. You know exactly how you’re going to use the money that you raise. You’re going to get some money from the bank, some money from your investors. You’re going to spend that money on your down payment, your closing costs and acquisition fee for yourself, your legal fees. You’re going to get reimbursed for all of your pre-closing expenses, and then you’re going to raise money for maybe some capital improvements and some operating capital and reserves. That’s what’s called “sources and uses of funds,” and you’re required to disclose that to your investors.
So that’s a typical specified offering, it’s going to be a manager-managed LLC, and that’s going to have two classes of members:, Class A are all cash paying investors, including you if you’re putting money in your own deal; and Class B is the part that you’re reserving for the management, and this is for their sweat equity for all of their non-capital contributions. Cash is called a capital contribution; everything else is a non-capital contribution. So very typical right now is we see a lot of 70/30 splits, 75/25 splits, things like that. So 25% or 30% for the management Class and 70% or 75% for the investor class; the investors are putting up 100% of the money to buy 70% of your company, that’s going to then go out and obtain the property.
So who earns what? The manager earns manager’s fees, earns a share of cash flow and a share of the sales proceeds. What do investors get? They get a share of the cash flow and a share of the sales proceeds. And breaking this down a little further, what kind of fees can the manager earn? Well, there can be an acquisition fee, it can be one to 3% of the purchase price — the bigger the dollars of the purchase price, the lower that percentage is going to be. An asset management fee, usually 1% to 2% of the gross collected income. A refinance fee, 1% to 2% of the loan amount. And a disposition fee, 1% to 3% of the sale price. So the fees and then the distribution, so this is what you would get as the management class, Class B.
Class B is going to earn the distributions; the manager’s going to earn the fees, all the fees are going to get taxed at ordinary income rates. Your Class B earnings from cash will be taxed at ordinary income rates, but your Class B earnings from the sale can be taxed at capital gains rates, so we’re going to actually have you pay some nominal amount to buy your Class B interest like a thousand dollars for 30% of the company, so that you have a cost basis and then can get capital gains tax treatment on that. The manager then as a Class B member earns a share of the cash flow and a share of the sales proceeds.
The third thing we have to learn: How to legally market your offering. So what is in a securities offering? We kind of touched on some of these documents. You’ve got a private placement memorandum, that’s the disclosure document that describes all the risks of the investment.
We’ve got an operating agreement or a limited partnership agreement. We have a subscription agreement; this is where the investor certifies to you that they are qualified, meet the qualifications and can afford to take the risk. Then we have an investment summary. The way that we write our offering documents is we want you to write a stand-alone marketing piece that you can show to your investors before you send them all these legal documents, because those first three are all legal documents and they’re about 160 pages long, so you want to get their attention and have them look at the meat of the deal before they make their decision. And then once they’ve made their decision based on what you’ve presented in your investment summary, then the legal documents become more of a formality for that, they’re not as daunting.
So the investment summary … if you’re doing a specified offering where you’re going to be buying a specific property, then that would be a property package, it’s sometimes called. If you’re doing a blind pool fund where you’re going to be pooling money and buying multiple properties, then this investment summary is going to look more like a business plan for your fund, and it’s going to describe what kind of properties you could buy, where you could buy them, etc. And then we have these securities notice filings both with the SEC and with the states where your investors claim residency. So when they fill out the subscription agreement, they’re going to tell you where they live and where they file their tax returns or state tax income tax returns. And then we’re going to notify those state securities agencies that sold securities in their jurisdiction, and that also gives those agencies jurisdiction over you, so that if you violate this federal law it’s not probably the SEC that’s going to come after you, it’s going to be a state securities agency.
The states have the budget and the money and the people to go after smaller securities violations. The SEC as near as I can tell, they don’t really do much until somebody steals about $15 million it seems. But the state securities agencies can definitely prosecute and they will, so that’s what’s in a securities offering.
What do you need the money for? Down payment, closing costs, capital improvements, manager acquisition fees, legal fees, operating capital and reserves. So how are you going to market your offering? Well, it depends on what exemption you’ve selected. When we’re interviewing a potential client, someone will come to us and we’ll start asking them a series of questions, “What are you buying? How much are you raising? Do you think you know enough people that you won’t have to advertise? And do you think some of your investors might be non-accredited?”
All of our clients start with Reg D, Rule 506(b) offerings. And the reason for that is because they all have family and friends who aren’t accredited, who would be fine investors, and they want to help out. And so until you get those people invested with you, then you shouldn’t be looking at doing 506(c) offerings. Also, those people will invest with you before you have a track record. When you start advertising, no one’s going to invest with you until you can prove a track record, so the first question they’ll ask is “How many have you done before?” So if you don’t have that experience, then you have to bring people into your syndicate management team who have the right experience so that you can survive that question.
There are a whole lot of people out there that call themselves capital raisers, but I will tell you that that technically is an illegal term unless they have a securities license, and they should not be raising money for other people or advertising themselves as people who can raise money for other people, because the securities exemptions that we’re talking about apply to the issuer of the securities. As long as you’re selling your own securities, you don’t have to have a securities license, but if you want to sell securities for somebody else and be paid a commission based on the amount of money that you’ve raised, then you have to have a securities broker dealer license, which is very, very onerous and expensive to obtain.
There is no way for people raising money for others that don’t have securities licenses to be compensated based on the amount of money that they’ve raised. So here’s what’s illegal: If you hire an unlicensed capital raiser, then you could get charged with paying an unlicensed broker and you can’t pay them a commission, any amount based on the amount of money that they’ve raised. You can’t hire an independent contractor, consultant or liaison to raise money for you unless they have the right securities license, so you have to be super careful about that. Then how do people do this? Well, you bring people into your management team, so they become part of the issuer and you give them compensation that’s based on their non capital contributions to your company, other than raising money. Nobody gets compensated for raising money, everybody should have a job of raising money, it’s just a given.
So whatever else you do is what you get paid for, and you’re going to get a share of the management earnings for doing that, but there should not be any formula associated with, “Well, I raised a million dollars, so we plugged in that number, plus I also did this and that’s how I got my share.” You’ve got to be super careful about that because that’s all going to fall apart if you’re ever questioned by a prosecutor on how it was determined what you were earning. So be aware of illegal capital raisers; they can cause you to lose your exemption, and if you lose your exemption then you would have to give everybody’s money back without deduction usually in 30 days. And that’s going to be extremely difficult to do when you have it tied up in a property, you would have to re-syndicate it and you’d have to confess to all these new investors, that you just violated securities laws and that’s why you need the money.
There are two things you need to do to be successful as a syndicator. First, you need to have a syndication business plan. What are we buying? How are we buying it? Where is it located? What size properties are we buying, etc. How many properties do we want to buy? How many units do we want to have? How many units do we have to support the lifestyle that we want? All that should be in your business plan for your investing business.
And second, you also have to have an investor marketing plan for how you are going to market for investors. How are you going to meet them? What are you going to say to them when you first meet them? What’s your elevator pitch? You’ve got to practice that; you have to make it compelling. How are you going to make a lasting impression? People are meeting people all over the place, it’s hard to remember people, so how are you going to stay top-of-mind?
And what can you give investors to take home? What if you’re meeting with someone at a coffee shop and they have a significant other, well, then it’d be nice if you could give them some marketing materials or something that they could take home and share with their spouse in order to show that you are legitimate, so there are some marketing tools that you should be developing for your syndication business. And so you should have an investor marketing plan. We do have an investor marketing plan template, we sell it for $250 at our affiliate website called investormarketingmaterials.com, but I’ll tell you how you can get it for free later on.
You should have a company brochure, which is what you show people between deals. When you don’t have a deal, you should have a website that describes what you do, and then you should have this property package and then maybe a pitch deck. We have an independent marketing arm for Syndication Attorneys that is called investormarketingmaterials.com. And you can check that out to see what kind of products we offer. We have professional editors and graphic designers who can create those for you. In addition, our Syndication Attorneys legal team creates securities offering documents. We do joint ventures that are you and three other people buying a property, or joint ventures between your syndicate and a private equity company. We can support you on all of those.
We will form companies. We do have something called a pre-syndication retainer, which is for people who don’t have a deal but want to have continued access to us to be able to brainstorm, maybe show us your website or marketing materials that you’re creating. Our pre-syndication retainer is just a $1,000 and gives you up to two hours of one-on-one time with one of our attorneys. And then also we will give you a free investor marketing plan template, and an invitation to our weekly Masterminds that I hold every Friday at noon Eastern time, unless I’m traveling. Pre-syndication retainers have been a really great tool for a lot of people. We’ve been able to help get you from where you are to becoming a syndicator, and then we’ll also give you a discount off your first syndication equal to or greater than the amount of that retainer.
Check us out at syndicationattorneys.com. Do check out the library at syndicationattorneys.com. Also check out investormarketingmaterials.com. You can get a free marketing plan template at investormarketingmaterials.com. If for some reason you can’t see it there to get it, then you can email email@example.com and we’ll get that to you. Andss we’ll go ahead and give you that free marketing plan template now, just for having listened to us today. You can also get a free digital copy of my book at our website at syndicationattorneys.com or at investormarketingmaterials.com. Get a free digital copy delivered right now to your computer, or you can buy a copy at Amazon. So Vinki, do we have any questions?
Yes, we do. Wow. That was so informative. But we do have a question from Gerard and he says, “How do you transfer 506(c) investors to a (b) status from one deal to the next? As an example, I’m advertising a deal in Houston on Facebook as a 506(c), we are having individual conversations with investors and getting to know them. Our next deal let’s say is in Orlando and is a (b), can we change their status since we had their email already?”
Kim Lisa Taylor:
You can do a new and separate offering, so you complete your 506(c) offering, you have to have a 30-day gap between when you stopped raising money for the 506(c) and start a 506(b) offering. And then if you have the right documentation to demonstrate that you have that substantive relationship, then you would be able to invite those people that you’d met on the prior offering into the current offering. But you can’t really have them going concurrently and the reason for that is because you can’t bait and switch people, like, “Oh, I met you on this one, that’s a 506(c) you can’t get in that, but I got this 506(b) over here, you can do that,” so you can’t do that. You do have to have a 30-day gap in between when you stop raising money for the 506(c) and you start raising money on the 506(b) in order to make that defensible.
So I have one follow-up question for you on that. I think a lot of people on this call, they have a CRM system set up and we do pick up so many emails, phone numbers, a lot of information when you’re doing the webinars and the meetups. And we are consistently sending them emails, weekly, biweekly, or monthly. So there are some relationships set up there, even though we did not have one-on-one or maybe we had a one-on-one in the networking sessions, but we did not have individual one-on-one, but they did not spam us, so they did not unsubscribe from the list either. How would you categorize them?
Kim Lisa Taylor:
You cannot use for them anything until you have that conversation; the SEC has specifically said they don’t believe that a substantive relationship can be established electronically.
But I do see people sending big offerings like that.
Kim Lisa Taylor:
I can tell you that, what did we say, how many offerings are there, or what kind of offerings are there that is registered exempt or illegal. I get them all of the time in my inbox, “Hey we’re raising another $100,000 or we have $50,000 offerings minimum investment available on this multifamily, it’s a 506(b).” I have never heard of this person before. And what I send them is, “I’m not your attorney, perhaps I should be, or you better check with the one you have because if you’re doing a 506(b) offering, I don’t know who the hell you are and you can’t do that.” I say it a little nicer than that.
But usually there’s a lot of people out there that think they can just grab somebody else’s documents and they edit them themselves, and then they can go out there and they can just raise money. They don’t understand the rules, they don’t understand that there’s filings that have to be done. As an investor, you want to understand the rules and what they should be doing, because if they’re not following the rules then your money is at risk. And the reason is, because what happens when a regulator starts an investigation against them, or somebody sues them for violating securities laws, the first thing they do is they suspend distributions and use your money to defend themselves.
Interesting. So I have another question from Vernon, “If you receive a percentage of the asset management fee in exchange for raising capital, how can it be calculated since it cannot be tied to a percentage of dollar raised? And if you can get paid in Class B shares, is there a specific way that the percentage share must be calculated?”
Kim Lisa Taylor:
Your percentage shares have to be calculated based on the job that you’re doing; you’re getting hired for a job. And the job is not raising money; everybody has the job of raising money. It’s like, okay, you have an office and everybody just has to show up at work in order to get paid, and then they all go off and they do their respective jobs. The showing up at work, the raising money is just something everybody has to do, but they’re not getting paid extra for that, so they’re not getting paid anything special for that. It’s now whatever else they do is what they’re getting compensated for, so you have to provide some value to that syndicate besides just raising money.
And maybe you do a newsletter or you’re an accountant, you’re a bookkeeper, you found a deal, you have some other value to add. There’s a lot of jobs in a syndicate; they need to be carved up amongst the management team, which is another reason why more than five in a management team doesn’t work or in a joint venture because there aren’t that many jobs in a syndicate. There are a number of jobs and it’s too big of a job for one person, but there’s not jobs for more than five people.
Question from Siya, “How do the rules impact funds that do not have specific properties identified?”
Kim Lisa Taylor:
The exact same rules apply; you still have to follow the exact same securities rules. Pick an exemption, follow the rules of that exemption as to who you’re asking to invest with you. The only difference is that instead of having a property package that’s attached to those offering documents — the PPM, the operating agreement and subscription agreement — instead of having a property package, you’re going to have a business plan for your fund that says, “These are the kinds of properties that we could buy. Here’s where they’re located. Here’s the parameters they have to meet before we would buy them.” And then you have to stick within those rules for your fund.
Angel has a question, “People say with the 506(b) you can send to a full personal email list, is this not a blanket, too?”
Kim Lisa Taylor:
No. So read the article on our website on how to create a substantive relationship, if you have gone through that list and you have created a substantive relationship with every one of the people on that list, then you could potentially do it with this one caveat. I knew somebody who got in trouble with a securities agency or with the SEC, one of the claims the SEC said to them is, “You sent an email blast to 200 people.” And they said, “But we had pre-existing substantive relationships with 200 people.” And the SEC said, “We don’t care, it’s 200 people, that’s a general solicitation.” Now, I don’t know if they still are as hard-nosed about that as they were in the past, because this has been a number of years since that occurred, and it was really early on even before the JOBS Act when that happened.
But it’s still the point that you don’t have personal relationships with 1,000 people, so if you’re email-blasting a thousand people, then it’s probably going to be construed as a general solicitation, so you have to be extremely cautious. The whole point about Reg D, Rule 506(b) is this is like a dating relationship, one-on-one. I met you, you met me, we have common interests together. We decided that we wanted to go into business together and this is what we’re going to do. This is not a you go into the bar and try to marry every girl that comes over because you make an announcement. You have to be super careful about this; this is a dating relationship, you meet people, you establish a follow-up call to see if there’s any rapport, or a follow-up meeting.
And during that meeting, you ask them those questions that are in that article about establishing substantive relationships, you take notes about what was discussed during that meeting or that call. And from that point on you should be able to have a tag associated with that person, whether they’re accredited or whether they’re sophisticated. And you’re going to know exactly how they’re sophisticated and then from that point on you know whether you can only offer them 506(c) or you can offer them 506(b).
One follow-up question on that: “How would somebody know whether we had the relationship with somebody existing in our CRM system or not? Because we’ve been sending them the email, let’s say maybe 100 emails and after that they invested with us, unless somebody reported, right?”
Kim Lisa Taylor:
Well, yeah, but here’s the thing — so nothing is wrong until everything goes wrong, right? So all of a sudden your deal starts to tank, then everybody starts going to their attorney who says to them, “How did you meet this person?” ‘Oh, I don’t know. I don’t even ever…’ “Did you ever have a conversation with them?” ‘No. I never talked to them;, they sent me all these emails and then finally I just decided to invest with them.’ They’re going to say, “Well, they didn’t do the right thing, they didn’t establish this relationship. How many people were on these emails?” And the whole thing starts to unravel. So again, nothing is wrong until everything goes wrong, and then it all happens at once and then you’re trying to backtrack and figure out whether you did things right.
So the right answer here is not to try to get around the rules, it’s to try to comply with the rules. And so you take your list, write down every single person that you know and start calling them and start asking them the questions about their suitability, and taking note of whether they’re accredited and if they’re not accredited, are they sophisticated and how, and from that point forward you can send them deals. Before you have that, you cannot send them 506(b) deals. So 506(c) you can advertise to everybody, you don’t have to worry about who you’re sending your ad to. You can advertise to everybody, but then the only people that can invest in it have to go through the verification process to prove that they’re accredited. But to your previous question, could you meet people who say, “Well, I’m not accredited, but I sure like this deal,” then what would you say to them?
Anytime a stranger asks you “Can I invest in this deal if it’s a 506(b),” the first answer should always be, “I don’t have anything I can offer you right now, but I would love to get to know you. Because once I get to know you and once we get to know each other, then maybe we’ll have something down the road.” It’s always in the future, it’s something in the future, because your relationship has to predate the offer, “And we may have something down the road we could offer you, so let’s have that conversation now.”
How many meetings do you need to have in order to establish …
Kim Lisa Taylor:
Not how many; it’s not the quantity of time you’ve known someone, it’s the quality of the relationship. And the quality is established by what you know about that person, but not only what you know about them, what they know about you. And the other reason that you don’t want to do just email blasts, first of all, it’s unrealistic to think you’re going to send out 5,000 emails and people are going to start pouring checks into your mailbox. Because first of all, whoever does send you a check on that basis, I would be highly suspicious of, because you also have an obligation not to help people launder money, because there’s a lot of people in jail for that, too. So you need to know who your investors are, you want to make sure that you understand their situation to know if you even want them in your deals.
You want to make sure that you’re emotionally compatible, because if they’re going to be calling you every five minutes, because they’re Nervous Nellie or they’re freaking out … I had somebody one time who wanted to invest with us and I couldn’t stand talking to her. Every time she called it was something about her manner, her voice or something that just rubbed me the wrong way and I just cringed, it’s like, “Okay. So not fair for her to be an investor with me and not fair.” People are litigious, some people just go out and they’re predatory, they look for people they can sue and take advantage of. You’ve got to get to know these people to know that you want to invite them into your lives for the next five to seven years, and that they’re not going to be whacking crazy and ruin your life, so think about that. Get to know people well enough that you’re comfortable having them be in business with you.
So another follow up question on 506(c) and (b) is, “I have heard of people that start with 506(b) and then they moved to 506(c); how does that work? Can it work 506(c) to (b) too, the same deal switching, not two different deals?”
Kim Lisa Taylor:
You cannot go from a 506(c) to a 506(b) because you found people by advertising, unless you didn’t find anybody by advertising. If the only people that invested with you were people that you already had pre-existing relationships with, even though it was a 506(c) offering, then you could convert it to a (b). But if you met any of those people through advertising or solicitation, then you couldn’t qualify to convert it to a (b) offering. Usually people don’t shift midstream, whatever you start with is what you finish with. What people do is three, four, five successive 506(b) offerings until you’ve got all the people that are non-accredited and sophisticated that you know and invested with you, and then you’ve kind of run out of those people, now you have a good enough track record and you need to advertise to get new investors.
So then at that point you start doing 506(c) offerings and you continue to do them from then on. Maybe occasionally you’ll say, “Okay, in the next one let’s do a 506(b) because we met some people and we got to know them, and now we can go ahead and put them in this next deal,” so that’s kind of how it’s worked. But you’re not going to start out with one thing and then switch midstream and update your Form D with the SEC and start changing to a new exemption because that’s like a red flag for the IRS.
That’s true. That’s true.
Kim Lisa Taylor:
That would draw all kinds of attention to yourself; I wouldn’t recommend it.
Plus the thing is the people who are 506(c) who are accredited, they can invest in 506 (b) deal as long as you have the pre-existing relationship with them already, they do not need to downgrade themselves. And let me ask you this too: So let’s say I advertise a deal, but I build a relationship over time in a few weeks, few months. And we are like, kind of, sort of friends now, so that will qualify as a (b) too, right?
Kim Lisa Taylor:
But you have to have that financial conversation with them. Just because you’ve known your aunt for your whole life doesn’t mean you’ve ever asked her about her finances. Just because you’ve lived next door to someone for a long time, doesn’t mean you’ve asked them about their finances. So until you’ve asked someone about their financial situation, whether they’re accredited, if they’re not accredited, how are they sophisticated? What kind of time horizon might they be interested in investing with, talking to them about the kind of deals that you do, does that even sound interesting to them? That’s the kind of information you need to know about someone to have that substantive relationship. “Substantive” means “I understand their finances and whether they’re qualified to be in my deal or whether I want them in my deal.” So beyond that, it doesn’t matter what kind of relationship you have, it’s not the right relationship to offer them investment opportunities.
And another question I have for you is, “If you introduce a sponsor to a large private equity fund, is there anything preventing the fund from paying a flat fee or buying through?”
Kim Lisa Taylor:
Nobody really pays attention to that so much because it’s a large fund and they can pay whatever they want. The whole point of the securities laws — the Reg D, Rule 506(b) and (c) — is to protect what the SEC calls “retail investors,” who are ordinary people with savings and self-directed IRAs, retirement funds;, these are the people that they’re trying to protect. They don’t care about protecting these institutional investors because they have lawyers, they have underwriters, they have analysts and all these people that can protect them.
So they’re not worried about whether they pay you some flat finder’s fee, but they are worried if you start introducing your country club buddies to somebody’s deal and you start taking a cut from each of their earnings. And one of the perils there is that you get tagged as an unlicensed broker and you could be held responsible for their investment for as long as they have it, so you could take on liability and it could be a felony. And then if you violate securities laws, the bad-actor provisions now are such that if you violate securities laws, you could be barred from ever engaging in capital raising again, so you’ve got to be super careful not to get labeled a bad actor.
I need to remind everybody once again, if you have any questions, please put in the Q&A. And our social media friends, please add your questions in the chat, on your Facebook, LinkedIn, YouTube, wherever you are. Let me check the social media again, I do not see any questions anywhere. I think we covered a lot today, Kim.
Kim Lisa Taylor:
Yeah, we did.
Seems like no more questions, but a lot of “wows” and “thank yous” to you.
Kim Lisa Taylor:
Thank you, everybody.
Thanks again for such an informative session.
Kim Lisa Taylor:
Thank you so much. And do go to our website and get some of that free information. Check out our podcast “Raise Private Money Legally” and subscribe to it; it’s on 20 different podcast platforms. We’d love to have you.
How can people reach out to you?
Kim Lisa Taylor:
They can go to syndicationattorneys.com; there’s a place there where you can schedule an appointment. You can either schedule a free appointment with our staff or you can schedule a paid appointment with me.
If you like to reach out to me, you can connect with me via LinkedIn or you can send an email to firstname.lastname@example.org or go to my website and download a free ebook, “Why Syndications Build Long-Term Wealth.” And thank you everybody for joining us today: see you in two weeks with another awesome guest.