What language should be added to the contract in a 1031 exchange?

Although many exchangors usually include language in their Purchase and Sale Agreement in order to establish their intent to perform an exchange, it is not required by the Internal Revenue Code. Many Exchangers and real estate agents add exchange language to the contract for a couple of reasons:

• It establishes their intent to perform a 1031 tax deferred exchange
• To notify the other party in advance of the need to assign the contract to an Intermediary

It is important, however, that the Purchase and Sale Agreements for both properties are assignable. In order to structure a typical exchange transaction, 1031 Exchange Place must be assigned in as the Seller of the relinquished property and also as the buyer of the replacement property. An exchangor should review the contract to confirm they are not prohibited from assigning their position as either a “seller” or “buyer” to a Qualified Intermediary. When a typical 1031 exchange is initiated, the Qualified Intermediary is shown as the Seller on the Settlement Statement instead of the exchangor/seller.

What language should be added to the contract in a 1031 exchange? The language below is satisfactory to establish the Exchanger’s intent to perform a tax deferred exchange and releases the other parties from costs or liabilities as a result of the exchange:

“Buyer is aware and acknowledges that Seller intends to perform an IRC Section 1031 tax deferred exchange. Seller requests Buyer’s cooperation in such an exchange and agrees to hold Buyer harmless from any and all claims, costs, liabilities, or delays in time resulting from such an exchange. Buyer agrees to an assignment of this contract by the Seller.”

“Seller is aware and acknowledges that Buyer intends to perform an IRC Section 1031 tax deferred exchange. Buyer requests Seller’s cooperation in such an exchange and agrees to hold Seller harmless from any and all claims, costs, liabilities, or delays in time resulting from such an exchange. Seller agrees to an assignment of this contract by the Buyer.”

At 1031 Exchange Place, many real estate investors contact our office just minutes before closing on their transaction and successfully convert a sale into a 1031 exchange. In most situations, a successful exchange can be accomplished as long as 1031 Exchange Place is contacted prior to closing.