What Qualifies for a 1031 Exchange: Like-Kind Property Rules
Section 1031 has two requirements that must both be met — not just "like-kind," but also "held for productive use in trade or business or for investment." Miss either one and the exchange fails, the clock stops, and the entire deferred gain becomes immediately taxable. This guide walks through which properties qualify, which don't, and the tricky cases where the answer depends on facts and timing.
The two requirements that must both be met
IRC §1031(a)(1) states that no gain or loss is recognized if "property held for productive use in a trade or business or for investment is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment."1
That one sentence contains two independent requirements:
- Like-kind. The relinquished property and the replacement property must be of the same nature or character — not necessarily the same grade or quality. For real property, the like-kind test is broad: almost any US real property is like-kind to any other US real property.
- Investment or business use. Both the property given up and the property received must be held for productive use in a trade or business or for investment — not held primarily for personal use or primarily for sale.
What "like-kind" actually means for real property
For real property, the like-kind standard is intentionally broad. Under Treas. Reg. §1.1031(a)-1(b), the nature or character of real property means it qualifies regardless of improvements, grade, or quality.2 Unimproved land and a fully developed apartment complex are "like-kind" to each other. A small rental house in rural Iowa is "like-kind" to a 50,000 square foot industrial warehouse in Los Angeles.
What the like-kind test actually excludes for real property is narrow:
- Foreign property. Under IRC §1031(h), real property located outside the United States is not like-kind to property located within the United States.1 A US investor can exchange one foreign property for another foreign property, or one US property for another US property. Cross-border exchanges are prohibited.
- Non-real property. Since the Tax Cuts and Jobs Act of 2017 (TCJA), Section 1031 applies only to exchanges of real property. Personal property — equipment, aircraft, artwork, livestock, vehicles, intangibles — no longer qualifies for like-kind exchange treatment.3 Exchanges completed before January 1, 2018 under prior-law rules are unaffected; all exchanges after that date are real property only.
Property types that qualify
Any US real property held for investment or business use qualifies — regardless of asset type, size, or improvements. Common qualifying property types:
| Property type | Qualifies? | Notes |
|---|---|---|
| Single-family rental house | Yes | Must be rented or held for investment — not personal use |
| Multifamily (2–4 units) | Yes | Owner-occupied units create a personal-use portion; only investment portion qualifies |
| Apartment building (5+ units) | Yes | Standard rental property |
| Commercial office, retail, industrial | Yes | Qualifies as long as held for business or investment use |
| Net lease property (NNN, NN) | Yes | Long-term passive hold; frequently used as replacement property |
| Raw / unimproved land | Yes | Like-kind to improved property; must be held for investment, not sale |
| Farmland / agricultural property | Yes | Qualifies as real property; farm equipment does not qualify separately |
| Delaware Statutory Trust (DST) interest | Yes | Rev. Rul. 2004-86 confirmed DST beneficial interests qualify as like-kind real property4 |
| Tenancy in common (TIC) interest | Yes | Co-ownership interest in real property qualifies; must not be structured as a partnership |
| Ground lease (30+ years remaining) | Yes | Leasehold interest with ≥30 years remaining (including renewal options) is like-kind to fee simple real property under Treas. Reg. §1.1031(a)-1(b)2 |
| Ground lease (<30 years remaining) | No | Courts have found leaseholds with fewer than 30 years remaining are not like-kind to fee simple interests |
Property types that don't qualify
The investment-use and like-kind requirements eliminate several common asset types that investors sometimes expect will qualify:
| Property type | Qualifies? | Why not |
|---|---|---|
| Primary residence | No | Held for personal use, not investment. Section 121 (up to $500K capital gain exclusion for married couples) may apply instead.1 |
| Vacation home (heavy personal use) | No | Personal-use days indicate investment intent doesn't dominate. A safe harbor exists for properties with limited personal use (see below). |
| Property held primarily for sale (fix-and-flip) | No | IRC §1031(a)(2)(A) explicitly excludes "property held primarily for sale." Dealer intent at sale, not at purchase, controls the analysis.1 |
| Partnership interest in a real estate partnership | No | IRC §1031(a)(2)(D) excludes interests in a partnership. The investor owns the partnership interest, not the underlying real property. Drop-and-swap restructuring may address this (see below). |
| Stock in a real estate corporation (C or S corp) | No | Stock is not real property even if the corporation owns real estate. Selling stock is not exchanging real property. |
| Real estate outside the US | No (cross-border) | IRC §1031(h): US real property is not like-kind to foreign real property. Cannot exchange US for foreign or vice versa. |
| Personal property: equipment, vehicles, aircraft | No | TCJA (effective 1/1/2018) eliminated Section 1031 for all personal property. These exchanges no longer receive non-recognition treatment. |
| REIT shares | No | REIT shares are securities, not real property. Section 1031 does not apply. |
| Notes, mortgages, debt instruments | No | IRC §1031(a)(2)(B) and (C) explicitly exclude stocks, bonds, notes, and other securities. |
Tricky cases where the answer depends on facts and timing
Vacation homes and short-term rentals
A vacation home is not automatically disqualified — it depends on how much the owner used it personally. Rev. Proc. 2008-16 provides a safe harbor under which the IRS will not challenge investment-use qualification if:5
- The property was owned for at least 24 months before the exchange.
- In each of the two 12-month periods preceding the exchange, the property was rented to another person at a fair rental for 14 days or more.
- Personal use by the owner did not exceed the greater of 14 days or 10% of the days rented at fair rental in each 12-month period.
The same safe harbor applies in reverse to the replacement property: it must be held 24 months after the exchange, rented 14+ days per year, and personal use kept below the same threshold. A property that satisfies the safe harbor qualifies for exchange treatment; one that doesn't may still qualify based on all the facts and circumstances, but that requires a professional opinion and carries IRS audit risk.
Short-term rental operators face additional complexity. High-frequency guest turnover can raise the question of whether the property is run as a hotel-like trade or business (potentially problematic under Section 280A). Whether the short-term rental income is passive or active for tax purposes interacts with but does not directly control the Section 1031 investment-use analysis. Short-term rental investors should confirm investment-use qualification with a tax attorney or CPA before relying on a 1031 exchange.
Primary residence with a separate rental unit
A duplex where the owner occupies one unit and rents the other is a common combination. The property is not a pure primary residence, nor is it pure investment property. The IRS allows a Section 121 exclusion (up to $250K/$500K) to apply to the owner-occupied portion and a Section 1031 exchange to apply to the investment portion — but this requires a careful allocation of basis, proceeds, and gain between the two portions, and the allocated values need to support the exchange separately from the exclusion.
Ground leases with fewer than 30 years remaining
A leasehold interest in real property qualifies as like-kind to a fee simple interest only if the lease has at least 30 years remaining, including any renewal options the investor has the right to exercise.2 A ground lease with 28 years remaining does not qualify, even though a 30-year lease would. Investors buying or selling ground lease positions should verify the remaining term before structuring an exchange around the leasehold interest.
Partnership interests and the drop-and-swap
Partnerships cannot do a 1031 exchange for the benefit of individual partners who want to exit. The partnership is the taxpayer — if the partnership does an exchange, the deferred gain stays in the partnership. And an individual cannot exchange their partnership interest directly, because IRC §1031(a)(2)(D) disqualifies partnership interests.
The workaround is a drop-and-swap: the partnership distributes the real property (or a proportional tenancy-in-common interest) to the departing partner before the sale. The former partner then individually owns a real property interest and can complete a 1031 exchange on their portion. Key risk: if the IRS determines the property was "held primarily for sale" at the time of the drop (because the distribution and the exchange closing happened within days of each other), the like-kind exchange treatment may be challenged. Most practitioners recommend holding the TIC interest for at least 12 months before the exchange, though the IRS has never set a bright-line holding period. The drop-and-swap requires legal and tax counsel before execution.
Fix-and-flip properties
A property purchased with the primary intent to rehabilitate and resell quickly — a "flip" — is typically treated as dealer property held primarily for sale, not investment property. This disqualifies it under IRC §1031(a)(2)(A). The classification is based on intent at the time of sale, not at the time of purchase. An investor who buys a property intending to flip it, then changes course and rents it for 24 months before selling, has a much stronger investment-use argument than one who rents for 30 days and then sells. No rule is absolute here; intent is facts-and-circumstances, and the stakes on a large exchange make legal guidance worth having.
The investment-use intent must exist before the exchange begins
A common mistake is assuming that changing how a property is used shortly before a sale fixes a disqualification. Courts and the IRS look at the taxpayer's dominant purpose for holding the property at the time of the exchange. Converting a primary residence to a rental for 30 days before closing does not establish investment intent. The property's rental history, the length of rental before sale, and whether the sale price was driven by investment value or personal decision are all examined.
Intent on the replacement property side matters too. Acquiring a replacement property with the immediate intent to convert it to a primary residence or sell it quickly undermines the exchange. The replacement property must also be held for investment or business use after the exchange closes.
Worked example: which properties in a portfolio qualify
An investor owns the following properties and is evaluating which can participate in a 1031 exchange:
| Property | Details | Qualifies? | Reason |
|---|---|---|---|
| Rental house, rented 8 years | Tenant in place, never personally occupied | Yes | Classic investment use, no personal-use issue |
| Beach condo (vacation home) | Rented 60 days/year, personal use 20 days/year | Depends | Rental ratio is 60 days rented, 20 days personal (33% personal of rented days — exceeds 10%). Outside the Rev. Proc. 2008-16 safe harbor; needs facts-and-circumstances analysis |
| Beach condo (vacation home) | Rented 120 days/year, personal use 8 days/year | Yes (safe harbor) | Personal use 8 days < 14-day max AND < 10% of 120 rental days (12 days). Meets Rev. Proc. 2008-16 safe harbor if owned 2+ years |
| Primary residence | Owner-occupied for 10 years | No (for §1031) | Held for personal use. Section 121 exclusion applies for up to $250K/$500K gain instead |
| Apartment in 4-person LLC taxed as partnership | Each partner owns 25% | Not directly | Partners own partnership interests, not real property. Drop-and-swap needed before exchange |
| Raw land, held 5 years, never listed for sale | Investment intent documented | Yes | Like-kind to any improved property; investment intent supported by 5-year hold with no flip activity |
| Ground lease, 18 years remaining | No renewal options | No | Fewer than 30 years remaining; not like-kind to fee simple real property |
How a financial advisor fits into the qualification analysis
Whether a specific property qualifies is ultimately a legal and tax question — your CPA and tax attorney confirm the legal eligibility. What a fee-only financial advisor adds is the bigger-picture decision work once eligibility is established:
- Model the exchange vs. taxable sale if eligibility is uncertain. If your vacation home is borderline, a financial advisor can model both scenarios: what the exchange saves if it qualifies, what the taxable-sale cost is if it doesn't, and whether the expected tax savings justify the cost and complexity of pushing the exchange qualification argument.
- Evaluate replacement property options once the relinquished property qualifies. Finding one qualifying property to sell is step one. Finding a replacement property that qualifies AND fits the household balance sheet — income needs, leverage, concentration, estate plan — is step two. The 45-day clock doesn't give time to think clearly about this after closing.
- Coordinate with the professional team. The CPA confirms intent and computes gain. The attorney reviews structure and entity issues. The QI holds funds and manages the exchange mechanics. A financial advisor is the one who looks across all of these roles and connects the exchange outcome to the longer-term financial plan.
Use the 1031 exchange calculator to estimate the tax deferral on any qualifying property. If your situation involves a vacation home, partnership restructuring, or any of the tricky cases above, consider working with an advisor before the sale closes — not after.
Sources
- IRC §1031 — Exchange of real property held for productive use or investment. Includes §1031(a)(2) exclusions (property held for sale, partnership interests, securities) and §1031(h) bar on US-to-foreign exchanges. law.cornell.edu/uscode/text/26/1031
- Treas. Reg. §1.1031(a)-1 — Like-kind exchange regulations including the "nature or character" definition of like-kind real property and the ground-lease 30-year rule. law.cornell.edu/cfr/text/26/1.1031(a)-1
- IRS FAQ: Like-Kind Exchanges (Real Estate Tax Tips) — confirms TCJA limited Section 1031 to real property for exchanges after December 31, 2017. irs.gov/businesses/small-businesses-self-employed/like-kind-exchanges-real-estate-tax-tips
- IRS Revenue Ruling 2004-86 — Delaware Statutory Trust interests qualify as like-kind real property under Section 1031. irs.gov/pub/irs-drop/rr-04-86.pdf
- Rev. Proc. 2008-16 — Safe harbor for vacation home and dwelling unit exchanges: 24-month holding period, 14-day rental floor, 14-day / 10%-of-rental-days personal use ceiling. irs.gov/pub/irs-drop/rp-08-16.pdf
Like-kind property eligibility rules verified against IRC §1031, Treas. Reg. §1.1031(a)-1, Rev. Rul. 2004-86, and Rev. Proc. 2008-16. The OBBBA (July 2025) and TCJA changes confirmed current as of June 2026. This page does not constitute tax or legal advice — consult a qualified tax professional and attorney before any exchange decision.
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