California Security Exemption for Notes Secured by Realty
You are looking for a security exemption, and you think that you can finance your real estate deal with a Deed of Trust. California Corporations Code sets rules for securities in California that are separate from the federal (SEC) regulations. You might have already evaluated whether your security is exempt for SEC registration, but is your security also exempt under California law?
One exemption that is particularly interesting to real estate investors, wholesalers, and real estate rehabbers and flippers is found in subdivision (p) of section 25100:
“A promissory note secured by a lien on real property, which is neither one of a series of notes of equal priority secured by interests in the same real property nor a note in which beneficial interests are sold to more than one person or entity.” 1Corp. Code, § 25100, subd (p).
When an investor buys from distressed sellers, or when he or she sells to buyers who cannot qualify with a bank, the Deed of Trust security exemption allows the investor some flexibility. The investor may use seller-financing, when it conforms to the law, because “[a] promissory note secured by a lien on real property is expressly exempted from the requirements of section 25110. Cal. Corp. Code § 25100(p).”2Bennett v. One West Bank (S.D.Cal. June 23, 2011, No. 10cv1884-BTM (RBB)) 2011 U.S.Dist.LEXIS 67459, at 19.
Elements of the security exemption
We can break the security exemption down into four elements: (1) the security must be a promissory note (this excludes stocks and other securities), (2) the security must be recorded as a lien on real property (i.e. a deed of trust), (3) and the note must be recorded in such a manner that it does not share priority with any other lien on the property, and (4) the note must have a single beneficiary. 3Corp. Code, § 25100, subd (p).
Multiple Promissory Notes not excluded
According to the court in People v. Schock (1984) 152 Cal.App.3d 379, 390, any attempt to issue more than one Deed of Trust on a property exceeds the scope of the exemption:
Single Promissory Note with multiple parties not excluded
In People v. Schock, supra, 152 Cal.App.3d 379, the defendant attempted to bypass the single promissory note rule with a clever twist.5People v. Schock, supra, 152 Cal.App.3d 379, 383-384 [199 Cal.Rptr. 327] Schock’s company issued a single promissory note that had multiple beneficiaries; each beneficiary had a percentage interest in the singular note.6People v. Schock, supra, 152 Cal.App.3d 379, 383-384 [199 Cal.Rptr. 327] He argued, that because all the investors were named on the same promissory note that it met the exemption requirements, but the court thought differently:
Security Exemption Summary
Under subdivision (p) of California Corporation Code section 25100, a real estate investor may create a single Deed of Trust on a single parcel of real estate tied to a single promissory note with a single drawer. This rule allows people who have sufficient funds or financial stability to transfer property or invest in property dealings without exposing the segments of the public to risk.
This rule does not cover all that you need to know; more articles will follow on this topic. For example, this rule does not provide the issuer a right to advertise. It does not qualify the note based on the creditor’s accredited investor status. Neither does it specify minimum or maximum amounts. It does limit the investors ability to bring in multiple investors on a single project using Deeds of Trust absent qualification and possibly registration.
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