December 4, 2007
I am a Registered Representative holding FINRA Series 24, 7, 22 and 63 registrations. I have been a licensed real estate broker for over 25 years in multiple state jurisdictions. I am a member in good standing of the National Association of Realtors, The Tenant in Common Association and the Federation of Exchange Accommodators. Since 1999, I have focused my practice on securitized Tenant in Common offerings of investment real estate.
Regarding the National Association of Realtors (NAR) application for exemption from Section 15 and 36 of the Securities and Exchange Act of 1934, I submit the following comments.
I sympathize with the NAR position, however, they are responding to a faction approximately less then .07 percent of the NAR membership, which does not like the competition and competency, presented by securitized Tenant in Common offerings and the broker dealer community.
In my experience, I have found that many top commercial real estate brokerage firms throughout the industry and their highly qualified and professional brokers are not members of the NAR. In addition, many of these brokers do not share revenues or pay advisory fees to other brokers on a regular basis, what is known in the real estate community as a co-brokered deal. If another licensee wants to sell their listing, they are told to work out a compensation agreement with their client.
The NAR request should be rejected. Currently there are very clear avenues for the professional real estate licensee, member of NAR or non-member, to enter the Tenant in Common product arena. Many broker dealer firms will welcome individuals seeking to obtain the minimum FINRA Series 22 and 63 registrations. The registration and educational process and compliance oversight results in a comprehensive understanding of Regulation D Offerings, Accredited Investor qualifications and suitability issues. There is absolutely no need to create a set of new rules or procedures to satisfy the demands of a few members of the National Association of Realtors desiring to avoid the education and FINRA registration process.
If a real estate broker wants to represent and advise a client on a Tenant in Common offering, there is nothing stopping them from having a separate agreement with their client, a Buyer’s Agent Agreement, and obtaining a fee from their client for services just as the client’s attorney or accountant may do.
The SEC must also consider the unintended consequences of granting the exemption. Should accountants, attorneys, insurance brokers and others be granted exemptions and be allowed to receive advisory fees from all security offerings without registrations with FINRA simply because they have experience, training and product knowledge? If the SEC grants the NAR request, which professional group will be knocking on the door next seeking an exception?
Regarding the eight bullet points that the Commission specifically requested comment on, points one through six deal with the qualifications required for a real estate licensee to be qualified to advise on a Tenant in Common transaction. The only qualifier should be the FINRA Series 22 and 63 registrations and meeting the broker dealer affiliation and training requirements. Furthermore, if the exemption is granted, how will the “substantial experience” test be determined and by who? Points seven and eight present some very complicated issues. Who determines the fee, or let us call it share, of the commission that the real estate licensee shall receive? How and who will pay it? The conditions imposed on the broker dealer and the registered representative will be unworkable and will expose them to liability and regulatory issues that can be avoided with the current registration requirement.
It is not in the best interest of the public or the securities industry to grant this exemption. If a real estate licensee wants to obtain compensation from the sale of a Tenant in Common program and wants to make TICs a part of his/her practice, they should be willing and required to obtain the proper and existing registrations through FINRA.
I urge the Securities and Exchange Commission to reject the application of the National Association of Realtors.
CapWest Securities, Inc.