An Analysis of 2021 and 2022 SEC Comments Issued to REITs

PRACTICE NOTE: From the number of Form comments issued, it is clear that REITs have an opportunity to significantly reduce the likelihood of SEC comments by carefully checking filings to ensure the requirements of the applicable Form and regulations are met. We are here to help. Compliance with Form Requirements The Staff often issues comments regarding inconsistent disclosures and/or deficiencies related to compliance with the instructions or item requirements applicable to registration statements (i.e., Forms S-3 and S-11) and Exchange Act reports (i.e., Forms 10-K, 10-Q and 8-K). These comments are typically more administrative and formulaic. The majority of the 23 form comments were issued on registration statements. Comments are often focused on the following: ■ failure to provide an exhibit; ■ staleness of financial statements and other information provided; and ■ incorrect formatting or presentation. Sample Comment ■ We note the risk factor that discloses the company has entered into two tax protection agreements. Please provide clear disclosure of the material terms of the agreements and file as exhibits. ■ We note that your summary risk factors are now six pages in length. Please revise to limit to two pages and disclose only the principal factors that make an investment in the registrant or offering speculative or risky, as required by Item 105(b) of Regulation S-K. ■ It appears that your Section 10(a)(3) update for December 31, 2021 financial statements was required by April 30, 2022. Please provide us with a legal analysis of your compliance with Section 10(a)(3) of the Securities Act of 1933. Please also advise whether you engaged in sales of your securities in the interim, and, to the extent you made such sales, please advise what consideration you have given to including disclosure regarding the potential violation of Section 5 of the Securities Act. An Analysis of 2021 and 2022 SEC Comments Issued to REITs | 14