November 14, 2007
In my opinion, without easily quantifiable restrictions, the exemption will inevitably lead to realtors doing general solicitation in hopes of increasing their referral business without SRO oversight. The SEC has a safe harbor provision for issuers (1 issue every 12 months). Why not limit the real estate professional to one deal every twelve months with an exception for other family members with the same relinquished property? This will sideline those realtors who will use lack of SRO oversight, to conduct general advertising campaigns or do business as a career TIC salesperson.
So that broker-dealers are not made to police the one property per year limit, make the real estate professional sign off that they have not been compensated on another TIC transaction in the past twelve months. If a real estate professional has been compensated more than once in a twelve month period, they should become registered with SEC/FINRA just like the rest of us.
The real estate designations (SIOR, CCIM, etc.) mean very little when it comes to certain TIC properties i.e. raw land, oil gas, etc. On the contrary, the broker-dealer community hopes to engage "non-commercial" realtors to best serve the investor. The exemption should, therefore, be allowed for all realtors irrespective of CCIM, SIOR, or "commercial" designations who have an interest in helping the investor make appropriate and suitable TIC investments.
How will the prohibition against advertising Reg D offerings be made known to realtors, who haven't been educated on the rules? It is difficult enough for an educated registered representative to understand what actions may constitute an offer of securities made through general solicitation much less a non-registered person like a real estate professional. My question is how can a real estate professional avoid general solicitation when they don't know what it is? Also, if the exemption is granted, well have non-registered persons selling one of the most regulated securities available to the public.
One last question and comment: If a broker-dealer has contemplated a TIC issue, which has been referred to the broker dealer from a real estate professional, is the broker-dealer allowed to execute the trade if the investment is suitable for the investor? If a real estate professional has knowledge of an issue and gains a prospect through general solicitation and then passes the investor on to a broker-dealer, is the trade subject to contemplation and general solicitation prohibitions? I think many in the securities industry would say that the investor was not derived through general solicitation by a registered rep or B/D, and therefore the broker-dealer would be clear to execute the trade. I certainly hope this scenario will be clarified when and if the exemption is allowed by SEC.