Representing pensions funds in real estate transactions can sometimes raise unique and challenging issues. Pension funds come in basically two flavors--public and private. Public pension funds hold pension monies for state and municipal employees like teachers, fire and police officers and governmental workers. Private pension funds benefit employees of corporate entities, especially large companies. Due to sensible investment strategy as well as the legal requirements to diversify, many pension funds acquire and hold real estate assets. Following are some of the more common issues that such investment raises:
- Decision Making. Fund investments are handled through advisors, whose relationship to the fund is governed by an investment management agreement. Balancing the needs and desires of both the fund and the advisor can be difficult, but a familiarity with the management agreement is often useful, as it may speak directly to an issue at hand. Regardless of whether it is the advisor or the fund who selects counsel, the actual client and counsel’s ultimate duty is to the fund. In any difference of opinion between the two, the fund has the last word; however, in many situations, experienced counsel can facilitate a solution. For example, the two may disagree over the amount of a limitation of damages provision. The fund is sensitive to limiting its liability to the greatest extent possible while the advisor may believe that the market requires more exposure. Counsel can guide a resolution based on experience in other deals with other funds or with the same fund but a different advisor, thus achieving a “market” deal and still giving the fund comfort that it is acting as a responsible fiduciary in protecting its beneficiaries. Even where the advisor has authority to act under the investment management agreement (such as approval of the closing statement), counsel still acts to insure the interests of the fund are protected.
- Guaranties. Typically, each fund property is held in a single-purpose entity without other assets or, occasionally, with a few other assets not exceeding a pre-determined maximum value. When such an entity is selling or financing the asset or entering into a development agreement which requires significant future contributions, this can create problems because the purchaser, the lender or the developer will have no other assets to look to in the event of a default. Many funds have organizational documents or statutory authority which absolutely prohibit the parent fund (as opposed to the ownership entity) from guaranteeing ANY obligation and even those that do not are concerned that taking on such liability would be a breach of their fiduciary duty. Some funds are willing to guaranty against default which they can control, such as “bad boy” carve outs from loans, but are unwilling to cover any loss from “market risk” situations, such as a reduction in income due to a failure to lease the property or a reduction in market rents or property value. This may make some transactions with some third parties much more difficult. In the case of post-closing liability or required construction contributions, escrows or letters of credit may solve the problem. In the case of loans, a fund may have to settle for a lower LTV than what would have been available with a more robust guarantor. Especially where the fund is absolutely prohibited from giving a guaranty, it is critical that this issue be identified as early as possible in the process, so that the parties can address whether there is a possible “work around” or whether the lender must be eliminated from consideration, thereby avoiding unnecessary costs. Such early identification is particularly important with some regional or local lenders or developers who are doing their first deal with a pension fund.
- Tax Issues. Many of the biggest differences between transactions with pension funds as opposed to other entities revolve around tax issues. The funds and their title-holding entities are exempt from Federal taxes, but the Federal exemption does not necessarily translate to an exemption from state taxes, so the fund’s counsel must investigate the possible impact of both state income and franchise taxes. Eliminating or minimizing such taxes may require a restructuring of the ownership (changing from a corporation to a partnership, for instance, or reducing the amount of paid-in capital as much as possible), which changes may then result in guaranty issues (see above). Also, having a Federal tax exemption does not end the concern about such taxes. Private pension funds are subject to tax on “unrelated” income (UBTI) and, although public funds are probably not (there is some disagreement), they usually want to avoid it as well. Thus, in any acquisition with pension funds, counsel must review the income sources to insure no UBTI is present. Typical instances of UBTI are hourly or daily parking lot income, rental of personal property and re-sale of utilities for a profit. Often, counsel can restructure these income sources to recharacterize them as non-UBTI.
- Partnerships. Private pension funds are subject to ERISA and public pension funds often have similar, state-imposed requirements. Of particular concern in the real estate context is the requirement that the funds act as a fiduciary with respect to its beneficiaries, a categorization which carries with it a number of statutory and common law requirements, some of which must be passed on to thirdparty providers. This can create issues with developers in construction agreements and property managers, but it is often solved by providing some additional information so that they understand that the “additional” responsibilities thus imposed are actually the same or very similar as those the management relationship would impose in any event