Thursday, August 2, 2012

Real estate is not a security? But an interest in a REIT is?

The title to this post is the title of an email I received from a Series 65 candidate who--like most people--is still struggling to get over the hurdle known as the Series 65 Exam. What stands out to me is this--her question actually explains THE point when trying to determine if an investment is actually a "security." But before I go there, let's first ask the more important question: why does the test ask me if something is or is not a security? Because of two things: the anti-fraud statutes, registration requirements. If the investment is not a security, the Uniform Securities Act has no authority over it, period. For example, you cannot commit securities fraud when offering/selling a fixed annuity--it's not a security. But, a mission investment fund security offered by a religious organization--Lutheran, Catholic, etc.--does meet the definition of a security. It is, therefore, subject to anti-fraud rules, and if investors are sold securities based on insufficient or erroneous offering documents, that is securities fraud. The security is exempt from the registration requirements of the Uniform Securities Act, but all SECURITIES are subject to the Uniform SECURITIES Act. And, the Uniform SECURITIES Act doesn't cover fixed annuities any more than it covers baseball cards.
Or, does it cover baseball cards?
I don't know--tell me more. If we're talking about some guy with a shoe box full of rare and valuable baseball cards, we're definitely talking about somebody with something of value--an investment of money that has likely gone up in value over time. But baseball cards are tangible items, things. Securities are always intangible. This piece of paper represents a debt obligation of a corporation; this piece of paper represents an ownership stake in a C-corporation trading on the NYSE, etc. So, a baseball card collection is an investment of money in collectible items--not a security. We could use baseball cards, on the other hand, to create an investment of money that would meet the definition of a "security."  Using the criteria from the Howey Decision, what would we call a situation in which 27 investors put $25,000 into an enterprise that uses that infusion of capital to travel the country going to baseball card swaps. Each investor receives a 1.5% ownership stake of any net profits/dividends. We don't call it "stock" or anything like that? Well, no one cares what it's called.  The question is--how does it function? It functions as an investment of money in a common enterprise where the investors profit solely through the efforts of others. It's an investment contract, which is a security.
Similarly, if you purchase a commercial building--which I so do not recommend--you have invested in real estate. This is not a security. However, if you put together a bigger real estate program funded by investors who put in money in exchange for an equity/ownership stake, now you have created a security. Chances are, you have created a REIT (real estate investment trust), in which investors will receive a share of net income, assuming there is any. So, the customer's email was perfectly titled--real estate is just real estate. If you sell ownership interests in a real estate program--now you're talking about a security. Need Help with Series 65/66?