How To Stay Out Of Hot Water: Private Lending And SEC Law Explained
BATTLECALL GUEST EXPERT: Alan Cowgill, PrivateLendingMadeEasy.com
While speaking all over the nation, meeting thousands of real estate investors the past couple of years and getting ask these same SEC questions, I realized that there is a lot of confusion concerning SEC regulations versus private lending.
The confusion seems to arise because of the following:
1) Each state establishes their own regulations and exemptions. Therefore there are different guidelines depending on where you live.
2) If you cross state lines with your private lending, i.e. houses in one state and lenders in another, the Federal SEC regulations come into play.
3) There are a lot of half truths floating around and when people hear these, they get confused and possibly fearful.
To be better equipped to answer everyone's questions, I decided to hire and attorney to do some research. Since each state is able to establish their own regulations, I decided to have the attorney start his research with the state of Ohio.
Some highlights while working with my attorney:
1) In Ohio I can acquire up to 9 private lenders without having to file any paperwork with the state. Once I file the proper paperwork my number of lenders is unlimited. Different States have different numbers and most are higher than Ohio.
2) As long as my properties and lenders are in Ohio. Just the state regulations apply. If I have lenders and or houses in different states then the federal SEC regulations apply.
3) If I go over 9 lenders, the paperwork I need to file with the state is very simple.
4) I need to give a disclosure statement to potential lenders.
5) Can't pool lender money but I can if I file the proper paperwork.
6) Can't use the word 'guarantee' in my advertising.
As a side note, some of you are under the impression that the SEC is out to cause you problems. The SEC is not the bad guy; they are looking for the bad guys. They want legitimate business owners to prosper. They are very willing to help you if you just ask. They just want you to comply with their regulations.
What is a security?
The term "security" is broadly defined to mean "any certificate or instrument, or any oral, written, or electronic agreement, understanding, or opportunity, that represents title to or interest in, or is secured by any lien or charge upon the capital, assets, profits, property or credit of any person or of any public or governmental body, subdivision, or agency."
That's the language used on the website of the Ohio Division of Securities. This definition includes such common items as shares of stock, warrants and options, promissory notes, membership interests in limited liability companies, bonds and debentures. Limited partnership interests are considered to be securities, while general partnership interests are generally not considered to be securities. The statutory definition additionally includes the term "investment contract," which has been construed by court decisions to include numerous investment opportunities and business opportunities, which at first glance may not appear to fit within the definition of "security."
Does that mean private lending may be considered securities?
When you are borrowing money from private lenders, you are offering them a security. You're making an IOU to them, by borrowing their money and promising to pay them a fixed interest rate over a certain time period or when the sale of a property is concluded.
When a company sells shares or stock, it's giving the purchaser of the securities an ownership interest. Shareholders make their money when they get dividends on their investment or when they sell their stock. Private lenders are lending you funds and they make their money by receiving the interest rate you've promised them.
Ohio and most other states allow securities to be offered to lenders when they are either registered or offered under a proper exemption from registration. Securities laws do define debt as a type of security. This means that your business has the same kind of opportunities as businesses that sell shares of their company to the public. It also means that securities laws and regulations apply to the business.
Who regulates securities?
Each state regulates investments offered to its citizens. The federal government, through the Securities & Exchange Commission (SEC), regulates offerings across state lines. This means that you'll have to look at the laws and regulations in your state when you're only working with private lenders in your state. If you're working with folks across state lines, you'll need to comply with the laws in each state you're working in and comply with the SEC's rules too.
What about advertising?
It's important to understand that each state sets its rules for advertising investment opportunities, which includes private lending. Every state has opportunities for you to advertise to bring in private lenders.
In the course materials that Alan has asked me to prepare for you, you'll see this referred to as from 1-9 private lenders or the 3(H) exemption. In states where you can't advertise to this small number of private lenders, you should step up to the equivalent of a 6(A)2 (in Ohio that's 10-34 private lenders) or a 6(A)1 (35 and more private lenders). By doing this, most states will allow you to advertise to private lenders and grow your business.
What about advertising across state lines?
As you'll see in the course materials, this kind of approach is referred to as a Reg. D offering, and we suggest you use the approach under Rule 504 of Reg. D. If you're looking at using this approach to reach out to private lenders outside of your home state, it is possible to advertise to private lenders.
You would use a state exemption that allows you to advertise and only advertise to accredited investors. Accredited investors are defined elsewhere in this package of information. As a reminder, the Securities Act of 1933 has several definitions of accredited investors.
The most important for your business are likely to be these two:
1. A natural person who has individual net worth, or joint net worth with the person's spouse, that exceeds $1 million at the time of the purchase.
2. A natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year.
What sort of disclosure should I give my private lenders?
When you are reaching out to private lenders, whether it's just a handful or a large group, it's very important that you disclose the risks and benefits of the private lending opportunity you're offering them. There are several reasons you should do this. Some are for the benefit of your private lenders, who will want to know what your business is and how they can make money lending to you.
Securities laws also work to protect private lenders, so you must disclose to them what the potential downsides are. These might include how long it will take to sell a property; mortgage rate changes, housing market pricing fluctuations, or the cost of rehabbing a property. There are others you'll want to mention.
Disclosure documents will also help you protect yourself and business against possible claims that you didn't describe the business properly. A strong disclosure document will help you protect your reputation and protect you against frivolous litigation. It will also help you comply with securities laws and regulations and, should you get a question from a regulator, help you demonstrate to them you are working to be in compliance.
Commissions- Can I pay them?
The bottom line on paying commissions is: don't. Unless you are using a proper registration or exemption and using a licensed or registered broker/dealer, almost every state prohibits paying commissions for the sale of securities.
Now, in Ohio, it is possible to pay someone to help you get potential private lenders to a luncheon, but only if you pay him or her whether or not these folks end up lending you money. That means that you can't pay them based on their success rate or anything that connects their compensation to getting private lenders. Other states won't even let you do that unless the people you're compensating are registered or licensed broker/dealers.
Public Offerings- What does that mean?
It's easiest to explain what it means by explaining what a public offering isn't.
Generally, any offering that is not exempt under the private offering exemption of the securities act of 1933 (Regulation D) is a public offering. This means that if you aren't using an exempt offering, as we talk about in the course materials, then you are getting involved in a public offering. Each and every state has its own definition of exempt offerings and these aren't considered to be public offerings. We talk about some of these exempt offerings in Ohio and other states in the interview and in the course materials you've received.
Exempt offerings are what open the door for you to run your real estate investing business successfully and in compliance.
In Summary, remember securities laws and regulations offer you many opportunities to do your real estate investing business and stay in compliance. Yes, there's going to be some paperwork that goes with these laws and regulations. It's just part of doing business, and that's what Alan's course is all about, helping you get into business and do it the right way and successfully.
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