A fee and leasehold bifurcation is a disposition of real property that sits inside a transaction most owners describe as a financing. That description is the problem, because by the time anyone calls it a sale the proceeds have often already been received.
1. What is the basis allocated to land? Gain on the land sale is measured against the land basis alone. On an older property that allocation is frequently small, and the owner is frequently unaware of it.
2. Is the leaseback long enough to be like-kind? A leasehold with thirty years or more to run is like-kind to a fee under the regulations. A ninety-nine year ground lease clears that easily; a twenty-five year lease does not.
3. Is it a true sale? Fair value paid, real risk transferred, market rent, no fixed-price repurchase obligation, and a buyer free to sell and finance the fee. A structure that functions as secured lending is not a disposition at all.
4. Where are the proceeds going? Into the same project, into other replacement property, or out. That determines whether a forward exchange is even the right instrument.
5. What is the real closing date? Ground lease closings are negotiated rather than found, so the date is often a term. That is unusually helpful against a forty-five and one hundred eighty day calendar.
6. Does the lease carry a fair market value reset? Not a tax question, but it determines whether the leasehold your client keeps is financeable at all. Agency leasehold guidance requires rent to be a fixed ascertainable sum and treats reappraisal-based resets as unacceptable.
For an exchanger who has sold and cannot find anything worth buying, a newly created leased fee is passive, requires no management or capital expenditure, carries fixed escalations and runs ninety-nine years. Because the position is structured rather than purchased from an existing seller, the closing date is negotiable rather than inherited.
Whether it suits a particular client is their advisors' call. See exchanging into a leased fee and why the structure is unusually passive.
Land bifurcations are usually brokered as capital raises. Nobody in the room calls an intermediary, because nobody in the room is thinking about a disposition. The result is a taxable land sale that closes without anyone raising the question.
We are a buyer of land, not an advisor to your clients, and we are not offering a security. The reason to have this conversation cold is that it does not work retroactively.
Nothing here is tax or legal advice. Exchange mechanics and characterization are matters for the intermediary, counsel and the client's CPA on the specific facts.
Yes. The fee interest in land is conveyed. It is a sale of real property, whatever the transaction is called in the term sheet.
The basis allocated to land. Improvements are retained by the seller and are not part of the disposition.
A leasehold with thirty years or more to run is of like kind to a fee under the regulations. A ninety-nine year ground lease is far above that line.
Fair value, real risk transfer, market rent, no fixed-price repurchase, and a buyer free to transfer and finance the fee. The form should say so expressly rather than leaving it to inference.
Usually yes, because the transaction is being structured rather than bought from a seller with an independent timeline.
No. We are a real estate principal buying land and writing ground leases.
If the characterization analysis does not work the way this page describes, that is worth knowing early. Send the objection and we will take it seriously.
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