NEW SAFE HARBOR FOR TENANCIES-IN-COMMON - IRS Revenue Procedure 2002-22 Conditions for Rulings

Sep 16, 2026

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Client memorandum outlining the IRS Revenue Procedure 2002-22 safe harbor for tenancies-in-common. It explains why like-kind exchange treatment under IRC Section 1031 is available for co-owners holding property as tenants-in-common, and why IRS advance rulings were previously limited. The memo enumerates key eligibility conditions for IRS consideration, including ownership structure, cap on co-owners, restrictions against treating the co-ownership as a business entity, required governance and voting rights, alienation and lender-consistent limits, and proportional sharing of proceeds, liabilities, profits, losses, and debt.

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NEW SAFE HARBOR FOR TENANCIES-IN-COMMON

Tenancy-in-Common eligibility conditions

Co-ownership structure and governance

Restrictions, voting, and economic arrangements

CLIENT MEMORANDUM NEW SAFE HARBOR FOR TENANCIES-IN-COMMON On March 19, 2002, the Internal Revenue Service (the “IRS”) issued Revenue Procedure 2002- 22, 2002-14 IRB 733 (the “Rev. Proc.”), which sets forth the conditions for considering a request for a ruling from the IRS that an undivided fractional interest in real property is not an interest ina business entity. The “like-kind exchange” rules of Internal Revenue Code (“IRC”) Section 1031 provide that taxfree exchange treatment is not available to an exchange of interests in a partnership. In contrast, property held by co-owners in a tenancy-in-common arrangement is eligible for like-kind treatment. Prior to the issuance of the Rev. Proc., the IRS would not issue advance rulings or determination letters on the question of whether an undivided fractional interest in real property is an interest in an entity that would not be eligible for tax-free exchange treatment. The Rev. Proc. provides that the IRS will generally not consider a request for a ruling regarding an undivided fractional interest in property unless the following conditions are satisfied: 􀀁 Tenancy-in-Common Ownership. Each of the co-owners must hold title to the property (either directly or through a disregarded entity) as a tenant-in-common under local law. 􀀁 Number of Co-Owners. The number of co-owners must be limited to 35 persons. For this purpose, “person” is defined as an individual, trust, estate, partnership, association, company or corporation, except that a husband and wife are treated as a single person and all persons who acquire interests from a co-owner by inheritance are treated as a single person. 􀀁 No Treatment of Co-Ownership as an Entity. The co-ownership may not file a partnership or corporate tax return, conduct business under a common name, execute an agreement identifying any or all of the co-owners as partners, shareholders, or members of a business entity, or otherwise hold itself out as a partnership or other form of business entity (nor may the co-owners hold themselves out as partners, shareholders, or members of a business entity) . The IRS generally will not issue a ruling under this revenue procedure if the co-owners held interests in the property through a partnership or corporation immediately prior to the formation of the co-ownership. 􀀁 Co-Ownership Agreement. The co-owners may enter into a limited co-ownership agreement that may run with the land. For example, a co-ownership agreement may provide that a co-owner must offer the co-ownership interest for sale to the other coowners, the sponsor, or the lessee at fair market value (determined as of the time the partition right is exercised) before exercising any right to partition; or that certain actionson behalf of the co-ownership require the vote of co-owners holding more than 50 percent of the undivided interests in the property. 􀀁 Voting. The co-owners must retain the right to approve the hiring of any manager, the sale or other disposition of the property, any leases of a portion or all of the property, orthe creation or modification of a blanket lien. Any sale, lease, or re-lease of a portion or all of the property, any negotiation or renegotiation of indebtedness secured by a blanket lien, the hiring of any manager, or the negotiation of any management contract (or any extension or renewal of such contract) must be by unanimous approval of the co-owners. For all other actions on behalf of the co-ownership, the co-owners may agree to be bound by the vote of those holding more than 50 percent of the undivided interests in the property. 􀀁 Restrictions on Alienation. In general, each co-owner must have the right to transfer, partition and encumber the co-owner's undivided interest in the property without the agreement or approval of any person. However, restrictions on the right to transfer, partition or encumber interests in the property that are required by a lender and that are consistent with custom

FAQs

What is the purpose of IRS Revenue Procedure 2002-22 in this memorandum?

It sets forth conditions under which the IRS generally will consider requests for rulings about whether an undivided fractional interest in real property is not an interest in a business entity.

Why do tenancies-in-common qualify for like-kind exchange treatment under IRC Section 1031?

The memorandum states that tax-free like-kind exchange treatment is not available for partnership interests, while property held by co-owners in a tenancy-in-common arrangement is eligible for like-kind treatment.

What limits apply to the number of co-owners for IRS ruling consideration?

The number of co-owners must be limited to 35 persons, with specific aggregation rules for spouses and persons acquiring interests by inheritance.

Sep 16, 2026

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