Doug Cornelius on compliance for private equity real estate

Private Real Estate and Regulatory Assets Under Management

Private Real Estate and Regulatory Assets Under Management

Its that time of the year again. Real estate fund managers registered with the Securities and Exchange Commission are working on their Form ADV filings. Im hearing a few questions about the right way to calculate Regulatory Assets Under Management.

The instructions toForm ADV Part 1 Appendix Bprovide three steps on page 9:

Second, does the account receive continuous and regular supervisory or management services?

Third, what is the entire value of the account?

Form ADV deems a private fund to be a securities portfolio. If youve gotten this far youve already given up on dealing with subtleties of the private fund definition and accepted that your real estate fund is a private fund. That gets you past the first step.

For fund managers, the second question is relatively easy since fund management falls squarely into management services.

That leaves us with the third step. The instructions provide:

In the case of aprivate fund, determine the current market value (or fair value) of theprivate funds assets and the contractual amount of any uncalled commitment pursuant to which a person is obligated to acquire an interest in, or make a capital contribution to, theprivate fund.

The first question is what to do about the subscription credit facility. As far I can tell: nothing. That leaves the likelihood that the fund RAUM is slightly high. Draws from the credit facility will be repaid with capital calls. So any investments still financed by the facility will be double counted. The value of the investment is in the value of the fund assets, but the capital has not been called to fund the investment and will be added as part of the uncalled capital.

The second question is what portion of the value of the real estate should be included as a fund asset. Some fund managers are using the gross value of all of the real estate. Others are using the net value after deducting the mortgage debt.

Ive heard mixed messages from the SEC on which is the preferred method. One thing is clear is that the SEC wants consistency on how you come to the value and that you dont act in a way that is deceptive.

The argument on using the net is that it better equates to the true fund value. The mortgage debt is generally isolated to the investment, so it is not fund-level debt. The fund is not leveraged.

As a comparison, it would seem strange for a private equity firm to use the gross value of a portfolio company in its fund valuation. I have not heard from any private equity fund managers that are adding the portfolio company level debt into the firms RAUM.

Many funds use the Investment Company Guidelines for real estate fund accounting. Those Guidelines call for the net value to be shown on the funds balance sheet. The Form ADV instructions say that if you calculate fair value in accordance with GAAP or another international accounting standard for financial reporting purposes you are expected to use that same basis for purposes of determining the fair value of your assets under management.

The SEC wants the registered adviser to use the same method in calculating assets under management that it uses to report its assets to clients or to calculate fees for investment advisory services. That would all seem to lead back to the equity capital in the real estate investments and not the gross value of all of the real estate investments. Investors generally look to the return on equity and capital, not the gross value of the real estate assets.

The third question is what to do about non-fund real estate investments, like direct investments,  separate accounts and joint ventures.  The general consensus seems to be that can they fall outside the scope of RAUM.

While there is still debate over whether a real estate fund is a private fund, these type of dirt investments generally seem to fall far away from that definition. There are few, if any, structural entities that would make one think that it is investing in a securities. There is little in the way of cash holding that may end up in a money market fund or other security investment. That means these dirt investments would not be a securities portfolio and dont make it past step one in the RAUM analysis.

Ive seen a few real estate managers address the RAUM mismatch in Form ADV Part 2. Item 5 states RAUM, then add in other measures of assets under management and how they got to those amounts. That extended assets under management would include the dirt investments.

Im curious to heard what methods you are using.

Appendix B: Form ADV: Instructions for Part 1A SEC

Investment Management Accounting and Financial Reporting Updatefrom Deloitte (November 2014)

Calculating Regulatory Assets Under Management for Private Funds

You can find out more about Doug on theAbout Doug page

Howey Test Framework for Investment Contract Analysis of Digital Assets

Pre-existing, Substantive Relationships and General Solicitation

The Continued Rise of Professional Whistleblowing

You can keep coming back to this website, but we can notify you when there is a new story if youSubscribe.

Please support my Pan Mass Challenge to fight cancer.

Compliance Building is published byDoug Cornelius, focusing on compliance and ethical issues for private equity real estate companies. Read more in

TheDodd-Franklaw brought many real estate private equity firms into the world of theInvestment Advisers Act. These are some key stories on the topic:

Yes, the SEC Wants Real Estate Fund Managers to Register

Are Real Estate Fund Managers Registered with the SEC?

Real Estate Funds and the Investment Company Act

I am a lawyer, but I am not your lawyer. Since Im a lawyer, this website may be considered attorney advertising under the ethical rules of certain jurisdictions. Please read mydisclaimers pagebefore taking any action. And then, dont take any action based on what I wrote.

Compliance Building – Doug Cornelius on compliance and business ethicsbyDoug Corneliusis licensed under aCreative Commons Attribution-Noncommercial 3.0 United States License.

Permissions beyond the scope of this license may be available atPrivacy PolicyPlease review thePrivacy Policybefore commenting or subscribing.Back to Top