REAL ESTATE INVESTMENT TRUSTS - SHAREHOLDER RIGHTS AND RESTRICTIONS

TEXAS BUSINESS ORGANIZATIONS CODE

 

§ 200.151. REGISTERED HOLDERS AS OWNERS.

Except as otherwise provided by this code and subject to Chapter 8, Business & Commerce Code, a real estate investment trust may consider the person registered as the owner of a share in the share transfer records of the real estate investment trust at a particular time, including a record date set under § 6.102, as the owner of that share at that time for purposes of:

(1) voting the share;

(2) receiving distributions on the share;

(3) transferring the share;

(4) receiving notice, exercising rights of dissent and appraisal, exercising or waiving a preemptive right, or giving proxies with respect to that share; or

(5) entering into agreements with respect to that share in accordance with § 6.251 or 6.252 or with this subchapter.

§ 200.152. NO STATUTORY PREEMPTIVE RIGHT UNLESS SPECIFICALLY PROVIDED BY CERTIFICATE OF FORMATION.

A shareholder of a real estate investment trust does not have a preemptive right to acquire securities except to the extent specifically provided by the certificate of formation.

§ 200.153. CHARACTERIZATION AND TRANSFER OF SHARES AND OTHER SECURITIES.

Except as otherwise provided by this code, the shares and other securities of a real estate investment trust are:

(1) personal property for all purposes; and

(2) transferable in accordance with Chapter 8, Business & Commerce Code.

§ 200.154. RESTRICTION ON TRANSFER OF SHARES AND OTHER SECURITIES.

(a) A restriction on the transfer or registration of transfer of a security may be imposed by:

(1) the real estate investment trust's certificate of formation;

(2) the real estate investment trust's bylaws;

(3) a written agreement among two or more holders of the securities; or

(4) a written agreement among one or more holders of the securities and the real estate investment trust if:

(A) the real estate investment trust files a copy of the agreement at the principal place of business or registered office of the real estate investment trust; and

(B) the copy of the agreement is subject to the same right of examination by a shareholder of the real estate investment trust, in person or by agent, attorney, or accountant, as the books and records of the real estate investment trust.

(b) A restriction imposed under Subsection (a) is not valid with respect to a security issued before the restriction has been adopted, unless the holder of the security voted in favor of the restriction or is a party to the agreement imposing the restriction.

§ 200.155. VALID RESTRICTION ON TRANSFER.

Notwithstanding §§ 200.154 and 200.157, a restriction placed on the transfer or registration of transfer of a security of a real estate investment trust is valid if the restriction reasonably:

(1) obligates the holder of the restricted security to offer a person, including the real estate investment trust or other holders of securities of the real estate investment trust, an opportunity to acquire the restricted security within a reasonable time before the transfer;

(2) obligates the real estate investment trust, to the extent provided by this code, or another person to purchase a security that is the subject of an agreement relating to the purchase and sale of the restricted security;

(3) requires the real estate investment trust or the holders of a class of the real estate investment trust's securities to consent to a proposed transfer of the restricted security or to approve the proposed transferee of the restricted security for the purpose of preventing a violation of law;

(4) prohibits the transfer of the restricted security to a designated person or group of persons and the designation is not manifestly unreasonable; or

(5) maintains a tax advantage to the real estate investment trust, including maintaining its status as a real estate investment trust under the relevant provisions of the Internal Revenue Code and regulations adopted under the Internal Revenue Code.

§ 200.156. BYLAW OR AGREEMENT RESTRICTING TRANSFER OF SHARES OR OTHER SECURITIES.

(a) A real estate investment trust that has adopted a bylaw or is a party to an agreement that restricts the transfer of the shares or other securities of the real estate investment trust may file with the county clerk of the county of the principal place of business of the real estate investment trust a copy of the bylaw or agreement and a statement attached to the copy that:

(1) contains the name of the real estate investment trust;

(2) states that the attached copy of the bylaw or agreement is a true and correct copy of the bylaw or agreement; and

(3) states that the filing has been authorized by the trust managers or shareholders, as appropriate.

(b) After the statement is filed with the county clerk, the bylaws or agreement restricting the transfer of shares or other securities is a public record, and the fact that the statement has been filed must be stated on a certificate representing the restricted shares or securities if required by § 3.202.

(c) A real estate investment trust that is a party to an agreement restricting the transfer of the shares or other securities of the real estate investment trust may make the agreement part of the real estate investment trust's certificate of formation without restating the provisions of the agreement in the certificate of formation by complying with this code or amending the certificate of formation. If the agreement alters the original or amended certificate of formation, the altered provision must be identified by reference or description in the certificate of amendment. If the agreement is an addition to the original or amended certificate of formation, the certificate of amendment must state that fact.

(d) The certificate of amendment must:

(1) include a copy of the agreement restricting the transfer of shares or other securities;

(2) state that the attached copy of the agreement is a true and correct copy of the agreement; and

(3) state that inclusion of the certificate of amendment as part of the certificate of formation has been authorized in the manner required by this code to amend the certificate of formation.

§ 200.157. ENFORCEABILITY OF RESTRICTION ON TRANSFER OF CERTAIN SECURITIES.

(a) A restriction placed on the transfer or registration of the transfer of a security of a real estate investment trust is specifically enforceable against the holder, or a successor or transferee of the holder, if:

(1) the restriction is reasonable and noted conspicuously on the certificate or other instrument representing the security; or

(2) with respect to an uncertificated security, the restriction is reasonable and a notation of the restriction is contained in the notice sent with respect to the security under § 3.205.

(b) Unless noted in the manner specified by Subsection (a) with respect to a certificate or other instrument or an uncertificated security, an otherwise enforceable restriction is ineffective against a transferee for value without actual knowledge of the restriction at the time of the transfer or against a subsequent transferee, regardless of whether the transfer is for value. A restriction is specifically enforceable against a person other than a transferee for value from the time the person acquires actual knowledge of the restriction's existence.

§ 200.158. JOINT OWNERSHIP OF SHARES.

(a) If shares are registered on the books of a real estate investment trust in the names of two or more persons as joint owners with the right of survivorship and one of the owners dies, the real estate investment trust may record on its books and effect the transfer of the shares to a person, including the surviving joint owner, and pay any distributions made with respect to the shares, as if the surviving joint owner was the sole owner of the shares. The recording and distribution authorized by this subsection must be made after the death of a joint owner and before the real estate investment trust receives actual written notice that a party other than a surviving joint owner is claiming an interest in the shares or distribution.

(b) The discharge of a real estate investment trust from liability under § 200.160 and the transfer of full legal and equitable title of the shares does not affect, reduce, or limit any cause of action existing in favor of an owner of an interest in the shares or distribution against the surviving owner.

§ 200.159. LIABILITY FOR DESIGNATING OWNER OF SHARES.

A real estate investment trust or an officer, trust manager, employee, or agent of the real estate investment trust may not be held liable for considering a person to be the owner of a share for a purpose described by § 200.151, regardless of whether the person possesses a certificate for those shares.

§ 200.160. LIABILITY REGARDING JOINT OWNERSHIP OF SHARES.

A real estate investment trust that transfers shares or makes a distribution to a surviving joint owner under § 200.158 before the real estate investment trust has received a written claim for the shares or distribution from another person is discharged from liability for the transfer or payment.

§ 200.161. LIMITATION OF LIABILITY FOR OBLIGATIONS.

(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted is not under an obligation to the real estate investment trust or its obligees with respect to:

(1) the shares, other than the obligation to pay to the real estate investment trust the full amount of consideration, fixed in compliance with §§ 200.104-200.108, for which the shares were or are to be issued;

(2) any contractual obligation of the real estate investment trust on the basis that the holder, beneficial owner, or subscriber is or was the alter ego of the real estate investment trust or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; or

(3) any obligation of the real estate investment trust on the basis of the failure of the real estate investment trust to observe any formality, including the failure to:

(A) comply with this code or the declaration of trust or bylaws of the real estate investment trust; or

(B) observe any requirement prescribed by this code or the declaration of trust or bylaws of the real estate investment trust for acts to be taken by the real estate investment trust or its trust managers or shareholders.

(b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, or subscriber if the obligee demonstrates that the holder, beneficial owner, or subscriber caused the real estate investment trust to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, or subscriber.

§ 200.162. PREEMPTION OF LIABILITY.

The liability of a holder, beneficial owner, or subscriber of shares of a real estate investment trust for an obligation that is limited by § 200.161 is exclusive and preempts any other liability imposed for that obligation under common law or otherwise.

§ 200.163. EXCEPTIONS TO LIMITATIONS.

Section 200.161 or 200.162 does not limit the obligation of a holder, beneficial owner, or subscriber to the obligee of the real estate investment trust if that person:

(1) expressly assumes, guarantees, or agrees to be personally liable to the obligee for the obligation; or

(2) is otherwise liable to the obligee for the obligation under this code or other applicable statute.

§ 200.164. PLEDGEES AND TRUST ADMINISTRATORS.

(a) A pledgee or other holder of shares as collateral security is not personally liable as a shareholder.

(b) An executor, administrator, conservator, guardian, trustee, assignee for the benefit of creditors, or receiver is not personally liable as a holder of or subscriber to shares of a real estate investment trust.

(c) The estate and funds administered by an executor, administrator, conservator, guardian, trustee, assignee for the benefit of creditors, or receiver are liable for the full amount of the consideration for which the shares were or are to be issued.

 

Contact Information

Mailing Address

Chowins Law Firm, PLLC
1011 Surrey Lane #200
Flower Mound, TX 75022

Telephone

(469) 630-2550

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