Real Estate Advisors Consider Effects of Dodd-Frank Implementation
Dodd-Frank, the most sweeping financial industry reform since the Great Depression, is aimed at banks and investment banks, but it also has big implications for commercial real estate investment managers, some of which are still in the process of being clarified.
Passed in 2010, the Dodd–Frank Wall Street Reform and Consumer Protection Act is designed to improve transparency and accountability. It requires lawmakers to impose 243 new rules on financial institutions. A few of those rules carry over to the real estate investment world, the most obvious of these being the issue of registering with the SEC as an investment advisor.
Although it’s not entirely clear that real estate investment advisors need to register and follow certain disclosure rules as a result of Dodd-Frank, but industry sources estimate that 90 percent of major advisors have registered, either as a precaution against the SEC interpreting real estate to fall under the law, or simply because institutional clients are demanding registration from real estate advisors to manage their own third-party risk requirements. Registration itself is probably not a game-changer for most advisors, as it requires real estate fund managers to act as fiduciaries to limited partners, giving the force of law to practices that most advisors would say they follow anyway.
A bigger issue with Dodd-Frank stems from the possibility for perceived conflicts of interest or lack of transparency within private equity funds, which may include real estate funds. To avoid problems with the SEC’s Office of Compliance Inspections and Examinations, real estate investment managers must take care that their disclosures in limited partnership agreements are accurate and precise. If an agreement is vague about the circumstances under which the advisor might take fees–or if any contingency fees are not disclosed–the agreement could be ruled in violation of the advisor’s role as fiduciary.
Designed to apply to financial advisors who generally have a passive role in the performance of investments, Dodd-Frank’s application to real estate can be complicated. For example, many real estate investment firms are affiliated with property management firms, either as part of the same company or as preferred third-party vendor relationships. In their communication with clients, firms must be clear and precise about the nature of these relationships and how they affect fee structures. A fund manager could be in violation of the law if it pitches its affiliated property management team as a differentiator while raising capital, but maintains separate income streams for operations and asset management during the life of the fund.
All of this information comes from savvy lawyers who have studied the new law and its probable application to commercial real estate—and even many of them aren’t sure how certain parts of the law will be interpreted. The best advice for real estate investment managers and their institutional clients is to get experienced legal counsel and follow all the rules, even if that leads to a belt-and-suspenders approach to disclosure. It may turn out that parts of Dodd-Frank aren’t intended to apply to real estate firms—but no firm wants to be the test case for finding out one way or the other.