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Tips For Buying and Selling Real Estate and Useful Websites

A Compendium of FAQs

By:

Patrick J. Browne
(504) 585-7654
Beeper: (504) 550-0308
Email

Table of Contents

1 About the Author

2 Benefits of Home Ownership

3 Rent Cost

4 Mortgage Loan Monthly Payments

5 Fair Market Value

6 Contracts to Buy or Sell Real Estate

7 Immovable Property

8 Servitude

9 Building Restrictions (Restrictive Covenants or Title Restrictions) and Zoning

10 Owners Title Insurance

11 Redhibition

12 Home Equity Loan

13 Reverse Mortgage

14 Sale of Residence

15 Installment Sale

16 Recording Leases

17 Tax-Free Exchange (Sections 1031, 1035, and 1044 Exchanges)

18 Real Estate Valuation For Investment Purposes

19 Real Estate Environmental Considerations

20 Appropriate Ownership of Property and Business Interests

21 Intrafamily Leases to Shift Income

22 Basis (Real Estate)

23 Adjusted Basis (Real Estate)

24 Stepped-Up Basis

25 Depreciation

26 Capital Gain

27 Sale of Depreciated Property

28 Useful Websites


Buying and Selling Real Estate

1 About the Author

Some of my better known experiences involved Wal-Mart, Harrah’s, Sears, Dillard’s, Purina, and the FSLIC/FDIC/RTC in transactions ranging from hotels and hospitals to state housing finance authorities in well over a dozen states. My experiences range from commercial, industrial and residential acquisitions and financing to planning, permitting and regulatory compliance involving commercial lending and trust departments of local, regional, national and international banks, commercial lenders, REITs, REMICs, mortgage companies and S&Ls. A more complete list follows, along with my résumé.

Please give me a call when you, your clients or customers, business contacts, friends and family have residential, multi-family, commercial or industrial real estate needs, large or small.

Patrick J. Browne
3200 Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163-3200

Patrick Browne

Pat Browne joined the law firm of Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P (est. 1892), following military service and prior private practice. He is a graduate of Loyola University (Bachelor of Arts and Juris Doctorate).

Description of Law Practice:

Wills, trusts, estates and successions; real estate, leasing and secured transactions; represents national, regional and local lenders along with institutional and individual developers and investors in a full range of commercial and secured transactions; business transactions; planning, financing and operating business organizations; municipal bond securitization and mortgage banking transactions; acquisitions and mergers; public offerings and private securities placements.

Related Activities:

Pat Browne has published articles, lectured extensively, including at Loyola University where he was an Adjunct Professor, and conducted seminars on numerous areas of law. He is a member of the NewOrleans Estate Planning Council; Louisiana State Bar Association (House of Delegates, 1970 – 1978, Board of Governors, 1978 – 1980, Committee on Bar Admissions, 1979 – 1983, Corporation and Business Law Section; Trusts, Estate, Probate and Immovable Property Law Section; Consumer Protection and Bankruptcy Law Section; Civil Law and Litigation Section); American Bar Association (Real Estate, Probate and Trust Law Section; Business Law Section; Lender Liability and Bankruptcy Law Section; State and Local Government Law Section); New Orleans Bar Association (Probate, Trust and Estate Planning Committee and Real Property Law Committee); Loyola University Law School Visiting Committee; National Association of Mortgage Brokers; the Louisiana Mortgage Lenders Association; Louisiana Land Title Association; New Orleans Metropolitan Association of Realtors, Inc.; National Association of Realtors; and Vice-President of Equitable Title Agency, Inc., agent for Commonwealth Land Title Insurance Company.

Admitted to Practice Before the Following Courts:

United States Supreme Court; United States Tax Court; United States Court of Appeals for the Fifth Circuit; United States District Courts for the Eastern and Middle Districts of Louisiana; United States Bankruptcy Courts for the Eastern and Middle Districts of Louisiana; Supreme Court of Louisiana and all Louisiana state courts.

PATRICK J. BROWNE

Phone: 504/585-7654; Beeper: 504/550-0308; E-Mail: pbrowne@monbar.com

REAL ESTATE EXPERIENCE

Better known real estate developments and transactions include:

  • Albertson
  • Louisiana Public Facilities Authority
  • Canal Place
  • Louisiana Public Housing Authority
  • Cortana Mall
  • Maison Blanche
  • D.H. Holmes
  • Orion Oil Refinery
  • Dillard’s
  • Plaza Mall in Lake Forest
  • District of Columbia Housing
  • Purina
  • Finance Authority
  • Rite Aid
  • Energy Centre
  • Sears
  • Flowserve Corporation
  • Tire Town
  • Godchaux’s
  • Touro Infirmary
  • Harrah’s
  • Wal-Mart
  • K&B

Lenders, investors, and trust departments:

Developments and transactions have involved the commercial lending and trust departments of local, regional, national, and international banks, private lenders, REITs, REMICs, mortgage companies, and savings and loans including:

  • ABN AMRO Mortgage Group
  • Lehman Brothers
  • Aulds, Horne & White
  • Mass Mutual Life
  • Bank of America
  • MBIA Insurance
  • Bank of NewYork
  • Mellon Bank
  • Bank One
  • MGIC
  • Chase Manhattan Bank
  • Morgan Keegan
  • Chase Manhattan Mortgage
  • Morgan Stanley
  • CIT
  • Mortgage Co-op
  • Commonwealth Land Title
  • Nations Bank
  • Countrywide
  • Nationwide Home Mortgage
  • Credit Suisse First Boston
  • Newman Financial Services - a subsidiary of GMAC Commercial Mortgage
  • Dime Mortgage
  • Fannie Mae
  • First American Title
  • Northwest Mutual Life
  • First National Bank of Commerce
  • Peoples Mortgage
  • First Nationwide Mortgage
  • Regions Bank
  • Freddie Mac
  • Regions Mortgage
  • FSLIC/FDIC/RTC
  • Rocky Mountain Mortgage
  • GE Credit Corp.
  • Standard Mortgage
  • Ginnie Mae
  • Sun Trust Bank
  • GMAC Commercial Mortgage
  • Sun Trust Mortgage
  • GMAC Commercial Holding Capital Corp.
  • U.S. Bank
  • GMAC Mortgage
  • Union Planters Bank
  • Hibernia National Bank
  • Wells Fargo Bank and Wells Fargo & Company
  • HomeSide Lending
  • Whitney National Bank
  • J. P. Morgan

Types of real estate experiences include:

  • apartment complexes
  • nursing homes
  • collateralized mortgage obligations (CMOs) transactions
  • office buildings
  • condos
  • oil field service company facilities
  • hospitals
  • pools and portfolios of seasoned residential mortgage loans securing municipal bonds issued by numerous city, parish, county, and state housing finance authorities in well over a dozen states
  • hotels
  • industrial development and revenue bonds (IDBs and IRBs)
  • land-based and riverboat gambling casinos and shore-side facilities
  • religious institutions
  • medical clinics and office complexes
  • self-storage/mini-storage facilities
  • mortgage-backed securities (MBSs)
  • shopping centers
  • motels
  • universities

Legal issues in real estate experiences include:

  • commercial, industrial, and residential acquisitions, options, and financing
  • condominium conversions and development, residential, commercial and industrial
  • mortgage lending and loan participations, both construction and permanent
  • commercial and residential business park/subdivision financing and development
  • construction contracts
  • building restrictions and zoning
  • commercial leasing
  • environmental considerations
  • mortgage origination, servicing, and investing in the primary and secondary markets
  • like-kind tax deferred exchanges
  • title insurance
  • complex commercial purchase agreements
  • planning, permitting, and regulatory compliance, including the Interstate Land Sales Full Disclosure Act
  • work-outs, foreclosures, and bankruptcy reorganizations

2 Benefits of Home Ownership

a. Mortgage interest and property taxes are deductible (if you itemize) and result in tax savings.

b. Allows you to have tax deductible interest on home equity loans.

c. You will always know what your monthly payment will be (if you have a fixed rate mortgage), exclusive of taxes and insurance.

d. Owner equity increases with each payment and as real estate prices rise.

e. Redecorations and improvements increase the value and equity.

3 Rent Cost

RENT ACCUMULATION TABLE

Total Rent Paid In

MO.

RENT

1 YEAR

2 YEARS

3 YEARS

4 YEARS

5 YEARS

10 YEARS

15 YEARS

20 YEARS

$250

$3,000

$6,000

$9,000

$12,000

$15,000

$30,000

$45,000

$60,000

$300

$3,600

$7,200

$10,800

$14,400

$18,000

$36,000

$54,000

$72,000

$350

$4,200

$8,400

$12,600

$16,800

$21,000

$42,000

$63,000

$84,000

$400

$4,800

$9,600

$14,400

$19,200

$24,000

$48,000

$72,000

$96,000

$450

$5,400

$10,800

$16,200

$21,600

$27,000

$54,000

$81,000

$108,000

$500

$6,000

$12,000

$18,000

$24,000

$30,000

$60,000

$90,000

$120,000

$550

$6,600

$13,200

$19,800

$26,400

$33,000

$66,000

$99,000

$132,000

$600

$7,200

$14,400

$21,600

$28,800

$36,000

$72,000

$208,000

$144,000

$650

$7,800

$15,600

$23,400

$31,200

$39,000

$78,000

$117,000

$156,000

$700

$8,400

$16,800

$25,200

$33,600

$42,000

$84,000

$126,000

$168,000

$750

$9,000

$18,000

$27,000

$36,000

$45,000

$90,000

$135,000

$180,000

$800

$9,600

$19,200

$28,800

$38,400

$48,000

$96,000

$144,000

$192,000

$850

$10,200

$20,400

$30,600

$40,800

$51,000

$102,000

$143,000

$204,000

$900

$10,800

$21,600

$32,400

$43,200

$54,000

$108,000

$162,000

$216,000

$950

$11,400

$22,800

$34,200

$45,600

$57,000

$114,000

$171,000

$228,000

$1,000

$12,000

$24,000

$36,000

$48,000

$60,000

$120,000

$180,000

$240,000

$1,100

$13,300

$26,400

$39,600

$52,800

$66,000

$132,000

$198,000

$264,000

$1,200

$14,400

$28,800

$43,200

$57,600

$72,000

$144,000

$216,000

$288,000

$1,300

$15,600

$31,200

$46,800

$62,400

$78,000

$156,000

$234,000

$312,000

$1,400

$16,800

$33,600

$50,400

$67,200

$84,000

$168,000

$252,000

$336,000

$1,500

$18,000

$36,000

$54,000

$72,000

$90,000

$180,000

$270,000

$360,000

$1,600

$19,200

$38,400

$57,600

$76,800

$96,000

$192,000

$288,000

$384,000

$1,700

$20,400

$40,800

$61,200

$82,600

$102,000

$204,000

$306,000

$408,000

$1,800

$21,600

$43,200

$64,800

$86,400

$108,000

$216,000

$324,000

$432,000

$1,900

$22,800

$45,600

$68,400

$91,200

$114,000

$228,000

$342,000

$456,000

4 Mortgage Loan Monthly Payments

Examples of monthly payments of principal and interest for each $1,000 borrowed:

Interest Rate 15 yr. Loan 20 yr. Loan 30 yr. Loan
5.00%
5.25%
5.50%
5.75%
6.00%
6.25%
6.50%
6.75%
7.00%
7.25%
7.50%
7.75%
8.00%
8.25%
8.50%
$7.91
$8.04
$8.18
$8.31
$8.44
$8.58
$8.71
$8.85
$8.99
$9.13
$9.27
$9.41
$9.56
$9.70
$9.85
$6.60
$6.74
$6.88
$7.03
$7.17
$7.31
$7.46
$7.60
$7.75
$7.90
$8.06
$8.21
$8.36
$8.52
$8.68
$5.37
$5.53
$5.68
$5.84
$6.00
$6.16
$6.32
$6.49
$6.65
$6.82
$6.99
$7.16
$7.34
$7.51
$7.69

Example: $100,000 loan ÷ $1,000 = 100 x $6.65 (that is 7% for 30 yrs.) = $665.00 per month exclusive of any taxes, insurance, mortgage insurance, and so forth.

5 Fair Market Value

The price at which assets or a business interest would be sold by an agreement between a willing buyer and a willing seller, where neither is under any compulsion to buy or sell, and both have reasonable knowledge of all the relevant facts.

6 Contracts to Buy or Sell Real Estate

Real estate purchase contracts typically specify a time for acceptance and are irrevocable during that time; they expire at the time specified for acceptance and in the event either the proposed buyer or seller dies or becomes incapacitated before acceptance.

Tip: Acceptance that is not in accordance with the terms of the offer is a counter offer which must be accepted by the original offeror.

7 Immovable Property

Immovable property means in Louisiana real estate such as for example land and permanently attached buildings.

Tip: Condominiums and leasehold investments in immovables are immovable property or real estate.

Tip: Oil, gas, and mineral rights are not considered real estate in Louisiana.

8 Servitude

A servitude is a charge on property. A personal servitude is a charge on property in favor of a person; a predial servitude is a charge on immovable property (called the servient estate) for the benefit of other immovable property (called the dominant estate).

Tip: A predial servitude is similar to an easement in most states other than Louisiana.

Tip: A predial servitude passes with the sale of the dominant estate for whose benefit it exists.

Tip: Predial servitudes may be created by contract (for example, to give one property owner the right of passage over the property of another) or established by law for the benefit of the public or for the benefit of certain persons as a limitation on ownership of real estate (for example, an owner of a building cannot allow it to fall on a passerby).

9 Building Restrictions (Restrictive Covenants or Title Restrictions) and Zoning

Charges or limitations imposed on real estate by the owner (for example a developer) or by all of the owners of the affected real estate or immovable property. For example, building restrictions may govern building standards and the use, height or location of buildings or fences on the affected real estate.

Tip: Local governmental subdivisions may impose similar restrictions for zoning, land use and historic preservation.

Tip: A variance from a zoning ordinance is a waiver of the applicability of an ordinance on the grounds of hardship or some special circumstance, for example in the case of off-street parking requirements or set back requirements.

Tip: A nonconforming use is one that existed before the adoption of a zoning ordinance; if such a use is not continued, the nonconforming use right is lost and the real estate must be used in full compliance with the current zoning ordinance.

Tip: You may want to determine all of these in advance.

10 Owners Title Insurance

Tip: Real estate should be insured by an owner’s title insurance policy even if the mortgage lender has title insurance coverage and even if a competent title examination has been performed because neither the lender’s policy nor the title examination protect an owner against certain potential title defects which can surface as “hidden defects” such as for example forgery in the chain of title which could not have been detected by the title examiner. Also the mortgage lender’s policy only covers the current mortgage balance and provides no protection to the owner.

11 Redhibition

The avoidance of a sale because of a vice or defect in the thing (such as a building, vehicle, and so forth) which renders the thing absolutely useless or its use so inconvenient that it may be presumed that the buyer would not have purchased the thing had the buyer known of the defect.

12 Home Equity Loan

Interest on a loan (other than acquisition indebtedness, that is, a loan incurred in acquiring, constructing, or improving a qualified residence) that is secured by a qualified residence is deductible for federal income tax purposes even if the proceeds of the loan are used for personal expenses, provided that the loan is less than the fair market value of the residence less the acquisition indebtedness.

13 Reverse Mortgage

A mortgage loan not in excess of certain amounts between a lender and homeowners (usually those approaching retirement) with equity in their homes under which the homeowners receive regular payments, often in the form of an annuity. The repayments are deferred until the home is sold or vacated, the death of one or both of the homeowners, or at the end of the term of the loan; the lender has an equity interest depending on the amount disbursed to the homeowners.

Tip: A reverse mortgage may force the sale of the house after the death of the second spouse to pay off the mortgage loan, unless other assets are available. In that case, the home cannot be left to the homeowners’ children or grandchildren.

Tip: Payments to the homeowner are not considered income for Medicaid purposes. The payments can be used to pay for nursing home care, a home care attendant, or other expenses.

14 Sale of Residence

Married individuals filing tax returns jointly may exclude from income for federal income tax purposes $500,000 of gain realized on the sale (or exchange) of their principal residence under certain circumstances every two years. Single individuals may exclude $250,000.

15 Installment Sale

A sale where the gain on the sale of property and the income tax on that gain can be spread over a period of time.

Tip: Income tax is only due for each year in which the seller receives installment sale income. There must be at least one payment in the year following the year of the sale. The installment sale benefits do not apply where Î there is certain depreciation recapture, Ï the property is publicly traded securities, and Ð the property was sold in the ordinary course of business unless the property is unimproved residential lots, time-share units, or farm property.

16 Recording Leases

If the lease is unrecorded, the purchaser is not bound but the seller is.

If the lease is recorded, the purchaser is bound.

17 Tax-Free Exchange (Sections 1031, 1035, and 1044 Exchanges)

When business or investment property is exchanged for like-kind property (that is, the same character or nature), gain or loss does not have to be recognized and the transaction should not be subject to current taxation because the taxpayer is in basically the same position before and after the transaction. Real estate, life insurance policies, and annuity contracts can all be exchanged tax-free. An exchange which involves the assumption of a mortgage will cause recognition of some income. Special rules apply to exchanges between related individuals and entities, deferred exchanges, and multiple party exchanges.

18 Real Estate Valuation For Investment Purposes

Investment real estate property such as multi-family units, office buildings, warehouses, and similar property that generate rental and other income frequently are valued roughly by prospective investor-purchasers by the following income approach analysis:

gross estimated annual rental income (for example, $250,000)
less estimated vacancy and collection losses (for example, less $15,000)
plus income from other sources such as late fees, concession vending machines, and so forth (for example, $10,000)
equals effective gross income (for example, $245,000)
less annual operating expenses (exclusive of debt service-mortgage payments); operating expenses would include utilities, insurance, real estate taxes, maintenance and repairs, equipment replacement and decorating, management fees, legal and accounting, and so forth (for example, less $120,000)
equals annual net operating income (for example, $125,000)
divided by the investor’s rate of return (that is, desired current capitalization rate or yield) (for example, 10%)
equals value of the property that the prospective investor would offer to buy the property (for example, $1,250,000)

Tip: Similarly, if the prospective investor-purchaser knows the annual net operating income and the seller’s asking price for the property, the annual net operating income (for example, $125,000) can be divided by the seller’s asking price (for example, $1,500,000) to calculate the estimated current capitalization rate at that price (for example, 8.3%). This calculation can thus serve as a basis for negotiating a lower price.

19 Real Estate Environmental Considerations

Phase-I Audit - An evaluation of property to determine, among other things, what the property has been used for in the past and what other properties in the vicinity are being used for and have been used for in the past. It includes a walk-through of the property and typically aerial photographs of the property and other properties within a certain radius. It also includes a check of public records to determine whether there have been any reported environmental violations of the subject property and other properties in the vicinity, as well as whether there have been any reported releases or spills of contaminants on or near the property.

The general purpose of a Phase-I Audit is to determine whether a more detailed environmental investigation, known as a Phase-II Audit, is warranted.

Tip: A Phase-I Audit is important to determine whether prior uses of the property may pose a risk to present ownership or occupancy. Properties that are or were formerly used as gas stations or dry-cleaning operations are usually environmentally suspect and should be investigated closely prior to purchase or lease.

Phase-II Audit - Typically involves a number of soil borings at various depths and locations and a laboratory analysis to determine whether the soil and/or groundwater is contaminated. If there is contamination beyond certain acceptable limits, remediation or clean up will usually follow.
Phase-III Audit - The term sometimes used to indicate the remediation or clean-up work performed after contamination has been confirmed. It is done with a certain degree of oversight and approval by the Environmental Protection Agency and/or its state counterparts.
Resource Conservation and Recovery Act of 1976 as amended by the Hazardous and Solid Waste Amendments of 1984 (usually referred to together as “RCRA”) - Designed to regulate the generation, handling, transportation, treatment, storage, and disposal of solid and hazardous wastes from cradle to grave.

Tip: It can have a significant impact on owners and operators (including lessees) and should be considered before the purchase or lease of any property, particularly commercial property, that may have been used for purposes involving hazardous wastes.

In addition to the Environmental Protection Agency and its state counterparts being able to bring enforcement actions, in certain circumstances RCRA also allows any private person to file what is known as a citizen suit against persons who have contributed to and/or who are contributing to an imminent or substantial endangerment to health or the environment.

Tip: Potentially-liable parties include present owners and operators (including lessees) for prior actions on the property by former owners and operators.

Comprehensive Environmental Response, Compensation, and Liability Act or Superfund (often referred to as “CERCLA”) - Imposes liability on, among others, present owners and operators (including lessees) of property on which hazardous substances are located and on former owners and operators (including lessees) who owned or operated property at the time hazardous substances were disposed of on the property.

Tip: Before purchasing or leasing any commercial property (and depending upon the circumstances, possibly residential property), minimum environmental due diligence requires that a Phase-I Audit be performed.

Tip: Nearly all lenders currently require at least a Phase-I Audit as a condition to making a loan secured by commercial property.

Tip: Under certain circumstances, persons who inherit real estate will not be liable for hazardous substances on the property.

Tip: Also, there are certain limitations on the liability of those who own or operate real estate in a fiduciary capacity for the benefit of others; this applies to trustees, executors, administrators, and custodians, among others.

Wetland Permit (also sometimes referred to as a Section 404 Permit or a Dredge and Fill Permit) - Required before dredging or filling any real estate classified as a wetland. The U.S. Army Corps of Engineers issues individual permits, which are required by Section 404 of the Clean Water Act.

A wetland includes swamps, marshes, bogs, similar areas, and any area inundated or saturated by surface or ground water sufficient to support vegetation typically able to live in saturated soil conditions.

Typically, any activity that changes the bottom elevation of a wetland or converts it to dry land requires a permit.

20 Appropriate Ownership of Property and Business Interests

Property including real estate, vehicles, vessels, and leases may be owned by one individual (a sole proprietorship) or by more than one individual or by a legal entity such as a corporation, partnership, limited liability company (LLC), or trust.

The selection of the form of appropriate ownership should be made only after taking into consideration a number of legal consequences and characteristics such as your personal liability, various tax consequences, and the applicability of federal Securities and Exchange Commission (SEC), state securities, and “Blue Sky” laws.

Tip: The property which you own individually in your own name (a sole proprietorship) or which you own with other individuals or legal entities is called in Louisiana ownership in indivision and each owner has an undivided interest.

Tip: Ownership should always be covered by appropriate insurance, including liability and “umbrella” coverage for all owners.

Tip: Such ownership should also be subject to a co-ownership agreement in which the owners agree to such matters as the allocation of income and expenses, restrictions on the rights of co-owners to sell or mortgage their interests, assignment of duties to the various owners to manage the property (for example, which owner will be responsible for paying bills, tending to maintenance and repairs, preparing tax returns, finding tenants, collecting rents, and so forth).

The varying characteristics of a legal entity in Louisiana include tax issues, limitations on the number and types of owners (for example, the shareholders, partners, and members), limitations on the liability of the individual owners for the obligations of the legal entities, limitations on management by the owners, and the transferability and heritability of the owners’ interests.

Tip: The Louisiana statutes governing legal entities have numerous default provisions which apply unless the owners agree to override them; as but two examples of such traps for the unwary, each member of a limited liability company (LLC) is entitled to cast a single vote and all decisions are made by majority vote of the members unless otherwise provided in the articles of organization or a written operating agreement, and with a corporation, unless the articles of incorporation provide for them, stockholders do not have preemptive rights; preemptive rights mean each voting stockholder has a right to subscribe for such proportion of new shares to be issued as the number of shares held by each stockholder bears to the total number of voting shares then outstanding.

21 Intrafamily Leases to Shift Income

Tip: When a family business is confronted with the need to buy or lease business property or equipment, income can be shifted for example by having your child in a lower tax bracket buy such assets and lease them to the family business. The lease payments would then be deducted by the business and taxed to the child.

22 Basis (Real Estate)

The original purchase price plus certain capital costs.

23 Adjusted Basis (Real Estate)

The original purchase price plus certain capital costs (the basis) of a property less certain deductions such as depreciation plus capital improvements.

Tip: Income taxes are deferred in each current year but the owner’s tax liability increases when the property is sold; the owner is then taxed on the difference between the adjusted basis and the net sales price.

24 Stepped-Up Basis

The amount used to compute the taxable gain on the sale of property for federal income tax purposes.

Property in the estate of a deceased person takes as its costs basis (whether or not the estate pays federal estate taxes) the fair market value of the property at date of death or six months after the date of death, and therefore the stepped-up basis means that any appreciation of property in the estate is not subject to federal income tax.

Section 1014 of the Internal Revenue Code provides that the income tax basis (cost basis) of property included in the estate of the decedent is equal to the fair market value of that property on the date of death of the decedent. This is usually referred to as the stepped-up basis. The benefit of Section 1014 is that even though property may be subject to estate tax, the built-in gain (that is, the difference between the value at the date of death and the adjusted tax basis) will not be subject to an income tax.

Tip: Section 1014(b)(6) provides that not only does the property of the decedent get this stepped-up basis but so does the surviving spouse’s community share get a corresponding stepped-up basis.

For example, assume a husband owns property worth $100,000.00, which property has an adjusted basis of $10,000.00; therefore, there is a built-in gain of $90,000.00 that will be subject to capital gains tax if the property is sold by the husband. Prior to selling the property, the husband dies. If the property is separate property, then the tax basis of the property will be stepped up to $100,000.00, eliminating the built-in gain. If the property is community property, not only will the husband’s half get a stepped-up basis to $50,000.00 (one-half of $100,000.00) but the spouse’s community half will also receive a stepped-up basis equal to $50,000.00. The benefit of converting separate property to community property occurs if the spouse that owns the separate property is the surviving spouse. If the property has been separate property, then there would be no stepped-up basis upon the death of the spouse not owning the separate property. However, if it is community property, there will be no estate tax cost (assuming a proper will is drafted), but the surviving spouse will now receive a stepped-up basis eliminating any capital gains tax being due in the event the husband sells the property.

Tip: The primary drawbacks to converting property to community property include inheritance (that is, the heirs of the deceased may not inherit one-half of the community property), exposing each other’s seizeable property to the creditors for each other, and divorce.

25 Depreciation

Deducting an allowance for the exhaustion and the wear and tear of property used in a trade or business or of property held for the production of income. This reduces the income tax basis of the property.

Tip: Depreciation also means reduced value owing to any cause (for example, physical deterioration, deferred maintenance, functional or economic obsolescence) and is considered in cost approach appraisals.

26 Capital Gain

Upon the sale of property classified as a capital asset, any gain generally is considered a capital gain. Gain is the increase of the amount realized upon the sale over the acquisition basis adjusted downward for depreciation or upward for additions to the asset. Currently, adjusted net capital gain on assets held for more than 12 months is usually taxed at a maximum rate of only 20 percent.

27 Sale of Depreciated Property

Some of the tax benefit of depreciation is recaptured when the property is sold, but economic benefits remain because of the time value of money and the possible benefit of capital gains, where the rate is less than the taxpayer’s tax rate on other income.

However, equipment, vehicles, and certain other depreciable personal property, certain depreciable real estate, leaseholds, and other intangible real property are not eligible for all of the benefits of capital gain rates or treatment.

Tip: When selling depreciable real estate and leaseholds, the seller should project the affect of recaptured and excess accelerated depreciation on the gain because of the reduced basis. This will result in a taxable gain that is greater than you may have thought and this may affect your asking price.

Tip: When selling depreciable personal property, the seller should project the amount of ordinary income that will be taxed because some personal property (for example, equipment, vehicles, and so forth) will not be eligible for the capital gain treatment and reduced capital gain rates.

28 Useful Websites

Real Estate:

(1) New Orleans Metropolitan Association of Realtors

Search real estate for sale or lease - consumer services- www.nomar.org

(2) The Louisiana Commercial Database

Search for properties for sale, exchange or lease in the region - www.lacdb.com

(3) Orleans Parish Mortgage and Conveyance Offices - www.orleanscdc.gov/recmort.htm

(4) NOLA.com (weekly lists of real estate sales) - www.nola.com

(5) Disconnect, transfer, and connect utilities. - www.connectutilities.com

(6) New Orleans City Code (The Charter and City Laws) - www.nocitycouncil.com

(7) Jefferson Parish Zoning (Search, then key words: Zoning) - http://jeffparish.net

(8) Neighborhood Development Foundation - http://www.enterprisefoundation.org/model%20documents/e540.htm

(9) Louisiana Sex Offenders Child Predator Registry - www.lasocpr.lsp.org/socpr/

(10) National Association of Realtors

Search homes for sale and real estate listings (over 1 million homes for sale) - www.realtor.com

(11) Maps and Driving Directions - www.mapquest.com

(duplicates and supplements the maps in Realtor.com)

(12)http://terrafly.com- (assessed values and photographs in selected regions)

(13) Louisiana Real Estate Commission - www.lrec.state.la.us

(14) Louisiana Laws (The Web Portal to the Louisiana Legislature) - www.legis.state.la.us

(15) Rodnreel (tide graphs and tables, weather, sunrise, sunset) - www.Rodnreel.com

(16) Louisiana Coastwide Aerial Photography - www.lacoast.gov/maps/lacw2001/index.htm

(17)www.Accuweather.com(15-day and hour-by-hour forecasts)

(18) People Finding

(a) There is a feature that makes it possible to type a telephone number into Google’s search bar (Example: (000) 000-0000), click the search button, and have a Map Quest page returned as a result. Any person wishing to discover the physical location of a phone number, be it a home or business address, could use this feature to locate a physical street address, and receive explicit directions on how to get there from anywhere in the country.

(b)www.anywho.com(find phone numbers, addresses, maps, and directions for people and businesses)

(19) Home Buyer’s Survival Kit - www.kiplinger.com/spending/home/buying

(20) Get the Most From Your Home Sale - www.kiplinger.com/spending/home/selling

(21) Loan Calculator (Stewart Title of Louisiana) - www.stewartla.com

(22) Asset Preservation and Sec. 1031 - www.apiexchange.com

(23) Legal and Legislative Analysis for the Real Estate Industry - www.thelegaldescription.com

(24) International Real Estate Digest (Comprehensive guide to real estate) - www.ired.com

(25) CNN Money; Business 2.0; Fortune.com, etc. - www.pathfinder.com/money/depts/real_estate

(26) Lycos Real Estate - www.lycos.com/realestate

(27) The Real Estate Library (Essential Resources for Buyers, Sellers, Home Owners, etc.) - www.relibrary.com

(28) 100 Top Real Estate Sites - www.100toprealestatesites.com

(29) LoanApp.com (Over 300 lenders) - www.LoanApp.com

(30) Real Estate Law - www.nolo.com/encyclopedia/re_ency.html

(31) Hoover’s Online-Money-Real Estate - www.hoovers.com/money/real_estate/0.1334.144.00.html

(32) The International Salary Calculator (Cost of living in selected cities) - www.homefair.com/homefair/cmr/salcalc.html

(33) The Market ICI World Commercial Real Estate Network (Industrial, commercial and investment real estate) - www.iciworld.net

(34) CCIM Commercial Real Estate Network - www.ccim.com

(35) LII: Law about...Real Estate Transactions - www.law.cornell.edu/topics/real_estate.html

(36) The Real Estate Book Outline; Real Estate, Homes (Comprehensive Selection of Homes for Sale, New Homes, Communities, etc.) - www.treb.com

(37) CoStar Group (Commercial information) - www.costar.com

Environmental:

(38) United States Department of Transportation-Federal Highway Administration - http://www.fhwa.dot.gov/realestate/index.htm

(39) Environmental Regulation of Real Estate - www.law.pitt.edu/fox/regre/regre.htm

(40) Real Estate Legal Survival - www.friran.com/real_estate.html

(41) The Real Estate Appraisal Bookstore - www.propertyvalu.com/pva_bookstore_a.htm

(42) Simply the Best Real Estate Software - www.simplythebest.net/realest.html

(43) Inspectors, International Real Estate Digest - www.ired.com/dir/inspect.htm

(44) HUD Guidelines, Appendix 7.3: Lead-Based Paint Abatement - www.hud.gov/lea/leapx7_3.html

(45) Beyond Due Diligence (Hazardous materials, wetlands, lead based paint, abandoned buildings) - www.envirologic.com/beyond.html

(46) Environmental Due Diligence Guide - www.bna.com/prodcatalog/eesc/EDDG.html

Fair Housing and Americans With Disabilities Act:

(47) Resources for ADA-American with Disabilities Act - www.nwbuildnet.com/nwbn/ada.html

(48) Labor and Employment Bulletin-Americans with Disabilities Act - www.haledoor.com/publications/labor/_DisabilityAct.html

(49) The Fair-Housing Network’s Website - www.fairhousing.com

(50) Real Estate Software by Real Data - www.realdata.com

(51) Realty Results Real Estate Investment Analysis (Real Estate Investment Analysis Spreadsheet) - www.realty-results.com

(52) Real Estate Links (Property Management, Investment) - www.gloreal.com/links.asp

(53) Annotated Real Estate Web Site Links - www.islandtime.com/re-intro/re-weblk.htm

(54) Present Value Formula and Graph - www.moneychimp.com

(55) Explaining the Inexplicable: A Primer on Present Value - www.lawecon.com/articles/present_value.html

(56) NPV and IRR-Measures of Evaluating Investments - hadm.sph.sc.edu/Course/Econ/invest/tutorials.html

(57) Datek Online-Glossary (N) - www.datek.com/helpdesk/glossary/bfglosn.html

(58) An Analytical Framework for Information Technology - http://wwwoirm.nih.gov/itmra/caplan1.html

(59) Principals of Corporate Finance

Foundations of the Net Present Value Rule - www.mhhe.com/business/finance/bm/npv.mhtml

OMB Circular No. A-94

(60) Campbell R. Harvey’s Hypertextual Finance Glossary (Net present value of future investments) - www.duke.edu/~charvey/Classes/wpg/bfglosn.htm

(61) Present value of future cash flows for investments - www.whitehouse.gov /OMB/circulars/a094/a094.html

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