Reporting Requirements For “Non-Financed” Real Estate Transactions In The Works

Written by: Guy Jeffress

On Wednesday, December 8, 2021, the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Treasury that works to safeguard the U.S. financial system from illicit use and money laundering, and to promote national security, issued an advance notice of proposed rulemaking (a “ANPRM”) to solicit public comments on proposed changes to the Bank Secrecy Act (“BSA”). The changes would require additional disclosures for persons involved in “non-financed” transactions involving both commercial and residential real estate. The ANPRM can be found at 86 Fed. Reg. 69589 (Dec. 8, 2021).

A “non-financed purchase,” “non-financed transaction,” “all-cash purchase,” and “all-cash transaction” are defined in the ANPRM as any real estate purchase or transaction that is not financed via a loan, mortgage, or other similar instruments, issued by a bank or non-bank residential mortgage lender or originator, and that is made, at least in part, using currency or value that substitutes for currency (including convertible virtual currency (CVC)), or a cashier’s check, a certified check, a traveler’s check, a personal check, a business check, a money order in any form, or a funds transfer.

According to a June 6, 2021, White House Press Release: “For too long, the U.S. real estate market has been susceptible to being manipulated and used as a haven for the laundered proceeds of illicit activity, including corruption. Our real estate market is a relatively stable store of value. It can be opaque, and there are gaps in industry regulation. As a result, criminals and corrupt officials are able to exploit real estate far too often.”

Recently reported cases and studies cited in the ANPRM and the press release indicate that many groups are using cash-only purchases of U.S. real estate to launder money. The end goal of the rulemaking process is to prepare a rule that would impose nationwide record-keeping and reporting requirements on certain persons participating in transactions involving non-financed purchases of real estate similar to those already required in financed transactions.

The ANPRM points out that there are several key factors that make these types of transactions appealing, those factors include, but are not limited to, the following:

First, the lack of transparency in the real estate market contributes to its vulnerability to money laundering activity. Real estate may be held directly or indirectly through nominees, legal entities (such as one or more shell holding companies), or through various investment vehicles. Buyers may use shell companies in many legitimate circumstances, such as when buyers use legal entities to shield themselves and their assets from liability related to the purchase of real property or as a means of protecting their privacy. Illicit actors, however, can take advantage of the opacity of shell companies or other legal entities or arrangements to mask their identity as the true beneficial owners of the property and their involvement in real estate transactions.

Second, the attractiveness of the U.S. real estate market as a stable vehicle for maintaining and increasing investment value also contributes to its vulnerability to money laundering activity. Illicit actors seek to conceal the origins of their illicit funds in a way that grows as an investment, “cleans” as much money as possible with each transaction and allows them to enjoy the fruits of their illicit activity while minimizing potential losses from market instability and fluctuating exchange rates. Consequently, real estate—especially in a relatively stable market with strong private property protections such as in the United States—is an attractive asset to facilitate money laundering. Real estate is highly appealing for this purpose because there are a large number of transactions, and each transaction is high is amount; as of mid-2021 the average residential sale price in the U.S. was about $350,000.

Third, the lack of industry regulation for non-financed transactions exacerbates the money laundering vulnerabilities of the U.S. real estate market. Non-financed purchases of real estate currently are not subject to the same regulatory requirements as those that involve financing underwritten by a financial institution which are subject to BSA requirements. This leaves a substantial portion of the real estate market without the same protections and safeguards as those applicable to banks, casinos, or other financial institutions. Moreover, data on real estate purchases is held in a patchwork of different state and county databases, making investigation and analysis difficult.

Written comments to the ANPRM must be received on or before Feb. 7, 2022.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer