Commercial Real Estate in Question as Remote Work Continues

However, real estate investment trusts are still seen as a good investment diversifier for 401(k) participants.


With the coronavirus pandemic having forced many millions of Americans to work remotely for nearly five months, a question has emerged which would have been unthinkable just last year: What is the future of office buildings and commercial real estate?

While there is a lot of uncertainty, one thing that real estate industry experts agree on is that it is a toss-up whether companies will ask their employees to return to offices if and when the coronavirus crisis is resolved. Some likely will, and some likely will not.

Want the latest retirement plan adviser news and insights? Sign up for PLANADVISER newsletters.

As Brian Zrimsek, an industry principal at MRI Software, which works with commercial real estate landlords, notes, technology developments achieved in just the last few years make it seamless for many people to successfully work from home.

“In 2000, Internet broadband operated at a mere fraction the speed that it does today,” he says.

If this trend continues, demand for commercial real estate will shrink. On the other hand, industry experts note that in the past 10 to 15 years, employers had already shrunk their office footprint, which has forced employees to work in closer proximity. This would suggest that as people return to their places of work, employers may in fact need more—not less—office space.

But a key consideration that 401(k) participants and other potential real estate investors need to keep in mind is that office leases typically lock employers into five- to 10-year time periods, notes Allan Swaringen, president of JLL Income Property Trust, a real estate investment trust (REIT) with $3 billion of assets under management. Because so many employers have a long-term lease, and because so many developments can happen over a period of even just a few years—let alone a decade—there really is no way to predict the future of commercial real estate, Swaringen says.

“Currently, 95% of commercial buildings are leased for the next five years,” he says. “Even if only 20% of the workers come back, office landlords will still be getting the cash.”

Swaringen says that his company surveyed its workforce, based in Chicago, and found that 15% said they would like to continue to work remotely, but 60% said they are not equipped to work remotely.

“The answer is not going to be clearly black or white,” he says. Swaringen certainly does not expect to witness “the death of office properties.”

Because many so industries function better through collaboration, Swaringen says this will be the primary reason why people return to physical workspaces.

Manny Ybarra, founder and president of Pillar Commercial, a full-service commercial real estate investment and operating company located in Dallas, agrees with this premise of people wanting, and needing, to collaborate.

“There is no doubt the office market is challenging in this current market,” he says. “While this near-term disruption will continue through the balance of this year, we remain confident employers will eventually come back to an office setting when this health crisis is behind us. Collaboration and culture are paramount to a company’s success, and that requires direct social interaction.”

However, experts foresee many changes in the way that people return to physical workspaces. Swaringen expects more companies will leave cities and move to the suburbs, where there is more room, it is easier to reconfigure an office’s layout, and people can drive to work, rather than rely on public transportation.

Goodwin Law has published a white paper, “Envisioning the New Normal,” on the extensive changes it expects office buildings to have make in order to reopen safely. Goodwin says buildings are likely to integrate technological solutions, such as one that can show office and parking lot capacity, handle reservations for limited numbers of employees and set up designated queues for when people can report to and leave work. Goodwin also foresees buildings installing no-touch technology at many locations, such as at elevator panels. Sensory technologies, including those that can monitor employees’ temperatures, are another possibility..

The law firm also expects HVAC systems to be adjusted to monitor air quality levels and to maximize the filtration and circulation of fresh air. Goodwin expects landlords to equip tenants and employees with information on building and occupant safety and contact tracing, and, last but not least, to enhance cleaning protocols.

Swaringen, who was co-president of the Defined Contribution (DC) Real Estate Council, notes that REITS focused on commercial as well as other types of real estate can provide diversification, quarterly dividends and an inflation hedge for 401(k) participants.

“In the U.S., $16 trillion is invested in commercial real estate, and that is half the market cap of the $32 trillion in stocks, and one-third the weighting of the bond market,” he says. “It is a very large investment universe and a significant component of the gross domestic product. But only 40% of all real estate comprises office space. Sixty percent is retail, apartments and industrial real estate, with each of those three accounting for 20% of the market.”

While asking about the future of commercial real estate is a valid question right now, Swaringen says, it is important to remember that real estate opportunities are diverse and of interest to both DC plans and to defined benefit (DB) pensions.

“We have been investing across many types of real estate and geographic markets to give our 17,000 high-net-worth investors a wide array of exposure to real estate for their portfolios,” he says. “So, I don’t worry about who will win in the commercial space. Medical offices are doing great right now, for instance, because of the increased demand for health care offerings outside of hospital settings.”

Media Company Latest to Face Legal Scrutiny Over Fidelity Freedom Funds

The case is yet another example of Employee Retirement Income Security Act (ERISA) litigation to question the use of actively managed default investments.

A new Employee Retirement Income Security Act (ERISA) lawsuit has been filed in the U.S. District Court for the Southern District of New York, naming as defendants the Omnicom Group and various individuals and committees who are alleged to be fiduciaries of the media company’s retirement plan.

The plaintiffs say these fiduciaries breached the duties of prudence and loyalty demanded by ERISA in their management and oversight of the plan’s investment menu. The complaint alleges ERISA breaches occurred when the company failed to fully disclose the expenses and risk of the plan’s investment options to participants; when it allowed unreasonable expenses to be charged to participants for administration of the plan; and when it selected, retained, and/or otherwise ratified high-cost and poorly performing investments.

For more stories like this, sign up for the PLANADVISERdash daily newsletter.

According to the complaint, which seeks class action status, the plan in question has nearly 37,000 participants with account balances and assets totaling nearly $2.8 billion. The plaintiffs specifically seek a declaratory judgment that an ERISA violation occurred, a permanent injunction prohibiting the practices described in the suit, and other forms of relief for further losses and/or compensatory damages. Like the many other ERISA suits filed in recent years, the plaintiffs also seek to have the defense pay any attorneys’ fees, costs and other recoverable expenses of litigation.

The text of the suit claims that, from at least December 31, 2009, through at least December 31, 2018, the plan offered the Fidelity Freedom Fund target-date suite.

“Fidelity Management & Research Company (Fidelity) is the second largest target-date fund provider by total assets,” the lawsuit states. “Among its several target-date offerings, two of Fidelity’s target-date offerings are the risky Freedom funds (the active suite) and the substantially less costly and less risky Freedom Index funds (the index suite). Defendants were responsible for crafting the plan lineup and could have chosen any of the target-date families offered by Fidelity, or those of any other target-date provider.”

The suit claims the defendants failed to compare the active and index suites and consider their respective merits and features.

“A simple weighing of the benefits of the two suites indicates that the index suite is and has been a far superior option, and consequently the more appropriate choice for the plan,” the suit claims. “Had defendants carried out their responsibilities in a single minded manner with an eye focused solely on the interests of the participants, they would have come to this conclusion and acted upon it. Instead, defendants failed to act in the sole interest of plan participants, and breached their fiduciary duty by imprudently selecting and retaining the active suite for the majority of the relevant period.”

The text of the lawsuit states that the two Fidelity fund families have nearly identical names and share a management team. The active suite, however, invests predominantly in actively managed Fidelity mutual funds, while the index suite places no assets under active management, electing instead to invest in Fidelity funds that track market indices.

“The active suite is also dramatically more expensive than the index suite, and riskier in both its underlying holdings and its asset allocation strategy,” the complaint states. “Defendants’ decision to add the active suite over the index suite, and their failure to replace the active suite with the index suite at any point during the class period, constitutes a glaring breach of their fiduciary duties.”

These allegations call to mind the various other ERISA lawsuits that have similarly questioned plans’ use of Fidelity Freedom Funds. These have seen mixed results, but most recently, the defense prevailed in the case known as Ramos vs. Banner Healthat least on the question of whether offering the actively managed suit indeed represented a fiduciary breach. That decision flatly states that the plaintiffs’ arguments about the performance of the active funds “fails to carry their burden to show that the Fidelity Freedom Funds were imprudent investment options,” such that the Banner defendants should have removed these funds as a plan investment alternative by the second calendar quarter of 2011.

It should be stated that Fidelity has not been named as a defendant in this case or in the other anti-active investment suits that have been filed. Still, much of the text of the lawsuit is devoted to criticizing the actively managed target-date funds’ cost and performance. Other funds and managers are also similarly called out by name in the complaint, including the Morgan Stanley Institutional Fund Inc. Small Company Growth Portfolio and the Neuberger Berman Socially Responsive Fund Class R6. The plaintiffs say these are examples of funds that consistently lagged their benchmarks but were nonetheless retained in the plan for extended periods.

The full text of the complaint, which also includes allegations that the plan fiduciaries permitted the payment of excessive recordkeeping fees, is available here

«