Partners · Escrow

A 1031 just landed on your file. Here is the order of events.

Most late exchanges are still workable when the intermediary is in place before the transfer. After funding there is usually nothing left to build an exchange around.

Before the deed records

  • The intermediary is in place before the transfer — a signed exchange agreement, dated before closing (Treas. Reg. §1.1031(k)-1(g)(4)(ii), (iii)(B)).
  • The seller's contract rights are assigned to the intermediary, with written notice to every party on or before the transfer date. The deed still goes directly from seller to buyer (§1.1031(k)-1(g)(4)(iv)(B), (v)).
  • Net proceeds go to the intermediary's exchange account, not the seller. Whatever the seller receives is generally taxable to that extent (§1.1031(k)-1(f)(2), (g)(4)(vi); IRC §1031(b)).

In practice: intermediaries usually ask that the settlement statement show them receiving net proceeds, and send written closing instructions. Call if anything on the statement is unclear before you fund.

The two dates to write on the file

  • Day 45. Replacement property identified in writing, signed by the exchanger and sent to the intermediary (or another permitted party) by midnight on the 45th calendar day after the transfer. Weekends and holidays count (§1.1031(k)-1(b)(2)(i), (c)(2)).
  • Day 180, or sooner. The exchange closes by the earlier of the 180th day or the due date, including extensions, of the exchanger's return for the year of the transfer. A late-year closing without an extension can cut 180 days to far fewer (IRC §1031(a)(3)(B)).

Neither date moves for a slow lender or a closing that slipped. A federally declared disaster can be different: the IRS can postpone these deadlines when its conditions are met (IRC §7508A; Rev. Proc. 2018-58 §17).

What can be paid from the proceeds at closing

  • Usually paid without a problem: commissions, prorated taxes, recording and transfer taxes, title and escrow fees, and prorated rents (§1.1031(k)-1(g)(7)).
  • Not addressed in the regulation: loan costs, points, lender fees and lender-required reserves. Whether a line item is taxable boot is for the exchanger's tax advisor.

On the replacement side

The intermediary acquires the replacement property and transfers it to the exchanger; the deed can pass directly from seller to exchanger. Funds come from the exchange account on the intermediary's written instruction (§1.1031(k)-1(g)(4)(iv)).

In practice: confirm wire instructions by phone to a number you already have, not one in an email. Exchange funds are a wire-fraud target because the closing date is widely known.

Who to call

Call before the proceeds move: 866 550 1031. We work to your closing date and tell you right away if it cannot be done.

The closer sheet, on one page.

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