The North American Securities Administrators Association (NASAA) is seeking public comment on proposed revisions to its Statement of Policy Regarding Real Estate Investment Trusts. The July 12 proposal would update the conduct standards for brokers selling non-traded REITs with references to the SEC’s Best Interest conduct standard. (NASAA news release, July 12 and Investment News, July 25)

Proposed Changes

• The Institute for Portfolio Alternatives (IPA) reports that the four proposed revisions under consideration by NASAA would:

1. Update the conduct standards for brokers selling non-traded REITs by supplementing the suitability section with references to the SEC’s best interest conduct standard.
   
   
2. Update to the individual net income and net worth requirements—up to (a) $95,000 minimum annual gross income and $95,000 minimum net worth, or (b) a minimum net worth of $340,000—in the suitability section, by adjusting upward to account for inflation since 2007.
   
   
3. Add a uniform concentration limitation prohibiting an aggregate investment in the issuer, its affiliates, and other non-traded direct participation programs that exceeds 10% of the purchaser’s liquid net worth. Liquid net worth would be defined as that component of an investor’s net worth that consists of cash, cash equivalents, and marketable securities. [NOTE: There is no carve out for accredited or other sophisticated investors.]
   
   
4. Include, in multiple sections, a new prohibition against using gross offering proceeds to fund distributions, “a controversial product feature used by some non-traded REIT sponsors . . . having the potential to confuse and mislead retail investors.”

Potential Impact

• The proposed revisions have the potential to influence other sets of NASAA Guidelines under development, including those for Asset-Backed Securities, Commodity Pools, Equipment Leasing, Mortgage Programs and Real Estate Programs other than REITs. (NASAA Request for Public Comment, July 12)
  
  
• NASAA works to coordinate state regulation of broker-dealers, investment advisers and securities offerings—including non-traded REITs, which are publicly offered REITs not listed on any exchange.
  
  
• NASAA’s Corporation Finance Section Committee Chair and Ohio Securities Commissioner Andrea Seidt said, “The REIT guidelines have not been updated for more than 15 years and these revisions are long overdue. If adopted, the proposed revisions will make key inflationary adjustments to existing suitability standards and promote uniformity in state concentration limits, both of which are key to limiting retail investor risk.” (NASAA news release, July 12)

Final comments on NASAA’s 44-page request are due by Aug. 11, 2022. The Real Estate Roundtable is working with several other organizations on a coalition response. Roundtable members can direct their comments and questions to Roundtable Senior Vice President Chip Rodgers or call 202-639-8400.

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