1031 exch. buying new construction 4plex & seller won't do repair

1031 exch. buying new construction 4plex & seller won't do repair

Rental Property Investor · Austin, TX · Member since 2016 · 24 posts · 12 votes

My father and I are in a 1031 exchange and under contract to buy a fourplex in San Antonio. (We are already way beyond our identification period so cannot buy something else).

This fourplex is brand new construction and after having an inspection, we have discovered some major issues with the construction. The seller had agreed to do all the work, per our contract, but after re-inspection, it was not done properly, and sounds like it could result in some major problems down the road. Now he is telling us it’s been done already, but is a terrible "half-assed" job.

I have requested we extend the closing date until the repairs are done properly OR go ahead and close but hold back money in escrow so we can do the work ourselves. He is refusing to do this.

I’m not sure what my options are now..if we don’t buy it, we are going to have a tax issue. But we do not want to buy a property that is poorly built and have problems later when we are trying to resell it or our tenants complain.

I feel like the seller has all the leverage now since he knows we are in an exchange. Any advice on my options at this point or how to get him to allow a holdback for repairs? 

We were going to buy multiple properties from him (which I was using as leverage to negotiate), but now that seems out of the question..

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Dave FosterBusiness Member
Qualified Intermediary for 1031 Exchanges · St. Petersburg, FL · Member since 2013 · 9k+ posts · 9k+ votes
9y

@Maggie Vineyard, This kind of thing is uncommon (thank heaven) but that doesn't make it less painful for you.  Situational ethics by the other side of the transaction can cause you trouble in a 1031.  Yes, they now have leverage only because they know you're doing the 1031.  You could threaten a specific performance suit or void the contract.  

But apart from the nuclear options, the only thing you can do now is to either count your cost and not close (call their bluff) after doing a full analysis of the potential damage vs tax on the gain from a busted 1031.  Or offer them a premium if they'll try again.  A premium may be less than tax.  The amount this harms you doesn't make them a less bad or more bad person. Their character (or lack thereof) is no longer in question.  The only question is how you can minimize the negative impact to you.So gritting your teeth and smiling may be the best answer.

Going forward you may want to consider using assignable contracts with no advance indication that you are in a 1031 exchange.  The eliminates any leverage they may have by stalling or thwarting your purchase.  The required notifications can be made at closing with no risk of early disclosure.

The 1031 Investor5140 Reviews
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  • Dave FosterBusiness Member
    Qualified Intermediary for 1031 Exchanges · St. Petersburg, FL · Member since 2013 · 9k+ posts · 9k+ votes
    9y

    @Maggie Vineyard, This kind of thing is uncommon (thank heaven) but that doesn't make it less painful for you.  Situational ethics by the other side of the transaction can cause you trouble in a 1031.  Yes, they now have leverage only because they know you're doing the 1031.  You could threaten a specific performance suit or void the contract.  

    But apart from the nuclear options, the only thing you can do now is to either count your cost and not close (call their bluff) after doing a full analysis of the potential damage vs tax on the gain from a busted 1031.  Or offer them a premium if they'll try again.  A premium may be less than tax.  The amount this harms you doesn't make them a less bad or more bad person. Their character (or lack thereof) is no longer in question.  The only question is how you can minimize the negative impact to you.So gritting your teeth and smiling may be the best answer.

    Going forward you may want to consider using assignable contracts with no advance indication that you are in a 1031 exchange.  The eliminates any leverage they may have by stalling or thwarting your purchase.  The required notifications can be made at closing with no risk of early disclosure.

    The 1031 Investor5140 Reviews
  • Property developer and building contractor · Lampasas , TX · Member since 2016 · 148 posts · 81 votes
    9y

    @Maggie Vineyard , @Dave Foster is on point. One thing I would do is find out if there's a bank or other financing entity involved and get them involved. I say this as they have a vested interest AND you also can leverage "full disclosure",,, in that if the sale doesnt go through that the listing entity/broker would have to disclose pertinent (non-cosmetic)/workmanship) issues with structure or pertinent systems If they still won't cooperate advise their buyer might sue them when they 'eventually' find out about significant"issues".... With all this in mind, the items you have in question need to be "significant" and non cosmetic or a simple workmanship issue. 

    Lastly; you could also set if you could get them to agree to an impartial third party inspection....? 

    Just some  thoughts to ponder...... Good luck! 

  • Rental Property Investor · Austin, TX · Member since 2016 · 24 posts · 12 votes
    9y
    Thank you Dave for your insight. I appreciate it very much. When guy say "offer them a premium", do you mean offer to pay more on the price for them to repair it? I no longer have confidence in their competency to fix these issues and would rather hire someone reputable to do the work ourselves. There are issues with the stucco and slope of the patio etc that are going to create big water issues in the future. Their solution to "repair it" was to stuff cement up behind it... ugh. :-/ If we were to close on the property, could we still go after them for the repair cost since they are obligated in the contract? They have also agreed to provide a builder warranty and have not. We have signed a management agreement with them, and are concerned now we can't get out if it if we do close, but don't trust these people anymore to do anything. I can see additional problems arising in the future if we keep them as a manager. In a bind and would consider just walking away, but the cash flow on the property is actually good. Better than anything else I've seen in San Antonio for this size.
  • Rental Property Investor · Austin, TX · Member since 2016 · 24 posts · 12 votes
    9y
    Rob Harris Thank you Rob! Yes we are getting a loan, though the bank has not seen the inspection report. Do you think I should forward it to them? I would think after reviewing it, they would require the stucco and patio and drainage issues be addressed, but am not sure. These will most certainly be issues in the future that could affect the structure, not just cosmetic issues. I am very interested in your idea about full disclosure. The developer is also the broker and property manager. If It's possible he could lose his license by not disclosing etc, maybe that would get him to agree?
  • Property developer and building contractor · Lampasas , TX · Member since 2016 · 148 posts · 81 votes
    9y

    @Maggie Vineyard - re "your" bank,, I wouldn't advise them unless you wanna chance killing the deal. The 1031 co won't care about these issues as they must comply with the IRS CODE which to my knowledge have no provisions for such issues. 

    What I was referring to re the bank is the BUILDERS / DEVELOPERS financing institution/entity. If there is issue with a property they have financed, they would push on the borrower to properly perform. Until it's off their books, they are still tied to it. Depending on the institution, they may jump in with both feet or simply say, "Hey, they're paying their note so we don't care.".... But you don't know until you ask/inquire. 

    Hopefully that makes sense. 

  • Rental Property Investor · Austin, TX · Member since 2016 · 24 posts · 12 votes
    9y
    Rob Harris Yes! That makes a lot of sense. The title report should show if there's currently a bank involved on their end, correct? I very much appreciate this advice. Thank you!
  • Writer | Attorney | Accountant · Dallas, TX · Member since 2016 · 150 posts · 116 votes
    9y

    I'm sorry to hear that you are going through this.  I can't count the number of times I have seen it happen in the past 33 years.

    First, you must close or lose your 1031.  That's obvious.  No choice.

    But you cannot solve this problem.  You will not change the facts or the behavior with negotiation.

    At this point, you hire an attorney.

    He will have an inspection done by someone who he can later qualify as an expert witness.

    He will send legal notification to the seller of what the problem is, what the solution is, and the type and amount of damages he will ask the Court to award.

    He might even take the case on contingency, or partial contingency.

    But you need to get this under control right now.

    Good luck.

    Michael Lantrip

  • Dave FosterBusiness Member
    Qualified Intermediary for 1031 Exchanges · St. Petersburg, FL · Member since 2013 · 9k+ posts · 9k+ votes
    9y

    @Maggie Vineyard, Once upon a time a seller informed our client that the contracted agreed upon repairs to a building were not going to be done before the 180 day exchange window expired.  It was amazing how those same repairs were completed in a timely fashion once our clients agreed to pay an additional $40K!  That's what I mean by a premium.  It feels icky but your goal is to keep yourself as whole as possible.

    The tax was much more than that so there was still benefit to our client and they listened to us rather than their attorney next time and didn't disclose the 1031 until at the closing table.

    The 1031 Investor5140 Reviews
  • Rental Property Investor · Austin, TX · Member since 2016 · 24 posts · 12 votes
    9y
    Dave Foster That's an interesting idea Dave though I think we'd be better off using the $40k to do the work ourselves through a reputable professional. Even if I offered the seller (builder) that money, it would not be done properly. He has already proven this with the shoddy "repairs" he's done. He literally stuffed concrete up behind his stucco job to fix it. No sleeve on any of the plumbing in the concrete foundation, to save what a few dollars? Patios all slope down toward the property and accumulate rainfall and water that will just sit there. So many corners cut, I can't even tell you. It's sad a builder can get away with selling such a poorly made product. Thank you for your insight and suggestions. I very much appreciate it.
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