More On Legal & Compliancefrom The Advisor's Professional Library
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- Client Commission Practices and Soft Dollars RIAs should always evaluate whether the products and services they receive from broker-dealers are appropriate. The SEC suggested that an RIAs failure to stay within the scope of the Section 28(e) safe harbor may violate the advisors fiduciary duty to clients, so RIAs must evaluate their soft dollar relationships on a regular basis to ensure they are disclosed properly and that they do not negatively impact the best execution of clients transactions.
The Financial Industry Regulatory Authority warned broker-dealers Friday that they were failing to properly communicate to investors all there is to know—including the potential pitfalls—of investing in nontraded real estate investment trusts.
“Recent reviews by FINRA of communications with the public regarding real estate programs have revealed deficiencies,” FINRA told BDs in its Regulatory Notice 13-18.
Those deficiencies include making “inaccurate or misleading statements” on the potential benefits of investing in real estate programs. Other BD communications have emphasized the distributions paid by a real estate program while failing to adequately explain that some of the distribution is return of principal.
In addition, FINRA said that some communications “have not provided sufficient discussions of the risks associated with investing in the products in order to balance the presentation of benefits.”
In February, LPL Financial was ordered by Massachusetts regulators to pay up to $2 million to investors who had bought shares of nontraded REITs and pay a $500,000 administrative fine.
The case, announced in in December, concerns close to 600 transactions of nontraded REITs that took place from 2006 to 2009, valued at about $28 million. The Massachusetts Securities Division’s enforcement unit noted that 36 trades worth about $2.1 million were made in violation of prospectus rules and asset-concentration limitations.
FINRA offered guidance to BDs on how to communicate with investors in the following eight areas:
In describing real estate programs, firms must ensure that their communications accurately and fairly explain how the products operate. Descriptions of real estate programs in communications need to be consistent with the representations in the program’s current prospectus. For example, communications that include discussion of a program’s objectives that are inconsistent with the objectives included in the program’s prospectus or that do not explain that there is no assurance that the objectives will be met would not meet Rule 2210’s requirements.
Since an investor’s participation in a real estate program is an investment in the program and not a direct investment in real estate or any other assets owned by the program, communications that imply that they are direct investments also would be inconsistent with Rule 2210’s requirements. Similarly, if a real estate program has not yet qualified under the U.S. tax code as a REIT, but is being marketed as a REIT, firms should ensure that the marketing communication discloses this fact and the possibility that the real estate program may not qualify as a REIT in the future.
Firm communications concerning real estate programs often include distribution rates. Some real estate programs fund a portion of their distributions through return of principal or loan proceeds. For example, a portion of a newer program’s distributions might include a return of principal until its real estate assets are generating significant cash flows from operations.
Rule 2210(d)(1)(A) requires firm communications to provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry or service. In addition, Rule 2210(d)(1)(D) requires communications to be consistent with the risks of fluctuating prices and the uncertainty of dividends, rates of return and yield inherent to investments.
Accordingly, a firm may not assert or imply in communications that the value of a real estate program is stable or that its volatility is limited without providing a sound basis to evaluate this claim. The fact that a program offers its securities at par value, or at another relatively stable price, does not evidence stability in the value of the underlying assets.
Redemption Features and Liquidity Events
Rule 2210(d)(1)(A) prohibits firms from omitting any material fact or qualification if the omission, in light of the context of the material presented, would cause the communications to be misleading.
Any discussion about potential liquidity events or the timing of such events must be factual and balanced. A communication may not be balanced if it fails to disclose that the date of any liquidity event is not guaranteed or, if applicable, that it may be changed at the program management’s discretion.
Performance of Prior Related Real Estate Programs
If a communication includes prior performance or other historical information about related or affiliated entities, this information may not be “cherry-picked” from other programs; information about all related or affiliated programs should be included with equal prominence. Moreover, firms should ensure that this information is presented to easily differentiate it from information about the current program. Of course, the information must be consistent with information in the program’s prospectus.
Use of Indices and Comparisons
Communications concerning real estate programs often use a real estate index’s performance to demonstrate the sector’s risk or return characteristics. As discussed above, Rule 2210(d)(1)(B) prohibits firms from making false or misleading statements or claims.
In addition, Rule 2210(d)(2) requires that any comparison in retail communications between investments or services disclose all material differences between them, including (as applicable), investment objectives, costs and expenses, liquidity, safety, guarantees or insurance, fluctuation of principal or return, and tax features.
Pictures of Specific Properties
Communications for a new program often include photographs or other images of properties owned by investments managed by the program’s sponsor that are similar to properties the program expects to purchase. In order to be clear that investors will not acquire an interest in the pictured property, prominent text must accompany each depiction explaining that the property is owned by an investment managed by the sponsor and not the program. Once the real estate program has acquired a portfolio, the communication may include depictions of properties that are limited to investments owned by the program.
A communication concerning a real estate program that holds real estate mortgages may include photographs or other images of properties in which the program has a security interest as long as the communication discloses that the program does not own the property and that the property is collateral for a loan owned by the program.
A communication may include a capitalization rate for an individual property within a real estate program if the rate is based on current information contained in the prospectus, and the communication explains how the rate was calculated, that the rate applies to the individual property, and that it does not reflect a return or distribution from the REIT or DPP itself.
As a general matter, however, it is misleading for a communication to include a rate that reflects a blending of multiple individual properties’ capitalization rates. Individual properties within a program’s portfolio typically will have different acquisition dates and their respective capitalization rates, which are generally based on the acquisition price of the property, may not reflect their current values. In addition, the individual properties’ capitalization rates may reflect different calculation methodologies.
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