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During the pandemic, private aviation boomed and many private aviation providers flourished. With the private aviation market normalizing, some of the companies who launched their businesses during the past three years or were struggling prior to the pandemic, are facing significant challenges. I am often asked for recommendations on selecting the right private aviation provider. I think one of the best things to do is ask impartial members of the aviation community, who have knowledge of most private aviation providers, what insight they may have. Additionally, I would avoid selecting a provider simply because a friend recommended them. The following are an example of some of the questions I would use as I evaluate providers and their product offerings:

1. Is the pricing too good to be true?

2. Does the program make sense from a business perspective and seem like something that is sustainable?

3. Does the company have a proven business model that has been around long enough to show it can sustain the cyclical nature of business aviation?

4. Does the provider have a proven safety record? Does the provider have a safety management system? Has the provider received any designations from third party auditors, such as from ARGUS or Wyvern?

5. Are there any financials of the company that the executive team is willing to share with prospective customers?

6. Who are the executives running the business and what is their background in aviation? Do they have proven success in the aviation industry or have they surrounded themselves with a team of successful leaders in private aviation?

7. Is the provider a charter operator who has its own Part 135 certificate or is the provider a charter broker who depends on other charter operators to fulfill their demand.

8. If the company is a charter operator, how much demand are they fulfilling on their own fleet vs. the use of third-party providers.

9. If outside charter sources are used to cover demand, what are the requirements to be an approved vendor for the provider?

10. Are the hourly prices fixed (guaranteed pricing) or do they allow for variable costs to account for factors the provider cannot control, such as fuel and other third party costs?

11. How are high demand days handled? Can the provider really guarantee their service 365 days a year without putting themselves out of business?

12. Are the insurance levels provided under the program sufficient? If they are lower than the industry norms, why are they low? Is it due to the inability to get more insurance or just an election to keep pricing low?

13. If the provider is not successful are any amounts that are pre-paid recoverable.

a. Are the funds in a segregated account controlled by the customer or are they comingled in a company account.

b. Are the funds being used to purchase an asset, such as a percentage of an aircraft, or just pre-payment for future services with no asset?

Charter demand and charter pricing fluctuates month to month and year to year. Private aviation is a cyclical business. Companies who started during the pandemic and believe that the best year is going to be every year will have a difficult time when charter demand changes or when other factors that affect operating costs are not accounted for in their pricing model.

In order to avoid high-risk providers, I recommend doing your homework or hiring someone to conduct the due diligence necessary to feel secure about your selected provider from both a safety and financial perspective.

As an aircraft owner, it is important to make sure the title of your aircraft remains clear. Unlike some other countries, in the United States we have an owner-based registry where liens can be filed against the aircraft by anyone. Since a notice of lien can be sent to the FAA Civil Aviation Registry (the “Registry”) without the knowledge of the aircraft owner, sometimes these filings create valid liens on the aircraft and other times a cloud on the title. It is a good idea to have a title search of the Registry done annually to make sure there are not any issues with the title of your aircraft. If this annual review is not done, then at the very least title searches for your aircraft should be done when the decision is made to market the aircraft for sale. By conducting the searches prior to finding a buyer for the aircraft, if it is discovered that there are encumbrances/liens which have attached to the aircraft or clouded title, then such encumbrances/liens can be addressed early in the sale process. Another reason to conduct the annual searches is that if the aircraft is financed, then the lender may consider it a breach if there are additional liens placed on the aircraft.

Recently, I have had two separate matters where tax liens were attached to the aircraft without the owner of the aircraft being aware of such attachment. In both cases, the liens were from a time before the current owner owned the aircraft. These types of liens are not uncommon and are better addressed sooner rather than later. Often, the only way to know about these liens is through annual title searches.

In another transaction I was involved with, the aircraft owner discovered that there were five liens attached to the aircraft they owned because a former management company failed to pay for maintenance work done on the aircraft. The owner did not know there were liens on the aircraft until it was under contract to be sold and the escrow agent provided the initial title searches. Unfortunately, in this case, since some of the liens had been attached to the aircraft for more than five years, it proved difficult to locate the lienholders. As a result, the closing had to be delayed until title could be cleared.

I strongly encourage annual title searches to be done by aircraft owners. If the liens attached to the aircraft are the result of a former owner, then the former owner should have a duty to clear the title even after closing. In most aircraft sales the former owner provides a warranty bill of sale where the seller agrees to defend title of the aircraft, even after closing. However, the longer the lien is attached the harder it becomes to reach the seller and have the seller take the actions necessary to clear the liens. The earlier unexpected liens are detected, the more likely it is that the seller will still be reachable and will be willing to take the action necessary to clear title.

There are many great escrow companies in Oklahoma City where the Registry is located. The escrow companies will perform searches on the Registry for a nominal fee. In order to perform the searches, the escrow agent simply needs to know the aircraft registration number and the make, model and serial number of the engines and propellers (if applicable).

In addition to liens filed on the Registry, an international interest can be registered on the airframe and engines of a certain size on the International Registry (“IR”). The IR exists as a result of the Cape Town Treaty, which the United States is a signatory. However, the IR is a two party system and requires consent from the aircraft owner before an international interest is registered against the aircraft. As a result, it is less likely that an international interest will be attached to the aircraft without the knowledge of the aircraft owner. However, if an aircraft is financed and when an aircraft loan is paid off, the aircraft owner should request post-closing IR searches evidencing the discharge of the international interests.

In short, for a bit of annual work and nominal cost, an aircraft owner should conduct annual searches at the Registry, and if applicable, the IR. This would ensure that the aircraft title remains clear of any unknown or unwarranted liens or encumbrances that have attached to title and/or are clouding title of the aircraft. For various reasons, this search will save the aircraft owner headaches in the future when the aircraft is sold. If annual searches are not conducted, the aircraft owner should consider at least doing a search at the end of the first year of ownership and again as soon as a decision is made to list the aircraft for sale.

For nearly 3 years we have been in a seller’s market. I often think of the aircraft market as a clock’s pendulum. It swings back and forth between being a buyer’s market or a sellers’ market and sometimes for long periods of time rests in or around the middle. However, in recent years, the pendulum has been stuck at the top of the arc on the seller’s side.

In March of 2020 the pandemic started us all on a path we did not understand and could not predict. I recall being on many conference calls with industry experts who were not sure if the private aviation market would go into a downward spiral, stay the same, or boom. As we all know now, the demand for private aviation reached an all-time high during the pandemic. As a result, inventory for pre-owned aircraft became scarce, new aircraft order backlogs grew exponentially, the ability for immediate access in fractional programs evaporated and the charter market exploded. The sum of these factors resulted in increased aircraft prices and limitation on availability.

Consequently, the scarcity created by the pandemic (and an increase in demand as the number of people who could afford to fly privately grew), led to some of the most one-sided aircraft transactions I’ve experienced in my 25-year career. Not only have purchase prices been high but the ability to conduct reasonable pre-acquisition aircraft due diligence and the ability to negotiate reasonable terms has been hampered. In some instances, sellers have simply decided to sell to a different buyer for a higher price, in breach of a signed purchase agreement. Additionally, due to the seller having all the negotiating power, there were often time constraints on the acquisition leading to rash decisions made about ownership structure, aircraft selection and post-closing management of the aircraft. These quick closings have led to an increase in management company changes within the first year or two of aircraft ownership and an increase in sales of aircraft that were acquired in the past few years.

In 2023 we are now seeing some signs of the pendulum swinging back toward the middle. Inventory numbers are starting to increase and there are not as many immediate offers on an aircraft as soon as it is listed. However, quality, low-time aircraft in high demand categories are still selling quickly. Perhaps this too will change as we move forward in 2023.

While we are still in a seller’s market, it is not as one-sided as it once was. As a result, buyers can act more rationally and ensure that they are selecting the right aircraft and take the time needed to properly structure the ownership and operation of the aircraft and select the right aircraft management company.

Regardless of what market we are in now or in the future, when the right aircraft becomes available, a smart buyer will be ready to move so they do not miss out on the best aircraft for them. There are several things a buyer can do in anticipation of finding the right aircraft.

1. Ownership and Operating Structure  A first-time aircraft buyer should engage a skilled aviation attorney to help determine the correct aircraft ownership and operating structure, including review of federal and state tax planning and regulatory compliance. Current aircraft owners should work with their aviation attorney to review the current structure and make sure it still is the best considering any changes that have occurred since the aircraft was acquired.

2. Aircraft  Having an experienced and knowledgeable aircraft broker review usage patterns of the past months or years and/or what future usage may be will help to determine the right aircraft type(s) and the number of hours that will be flown. Then, use this information to determine if charter will be allowed on the aircraft.

3. Management Company  Aircraft buyers should consider where the aircraft will be based, the type of aircraft being purchased and if charter is going to be permitted. (This should not just be based on which management company friends have used.) There is also the X factor in finding a management company that will be the right fit based on the culture of the company.

4. Technical Representation  Select a technical representative to oversee the inspection. This may be an employee of the management company or an outside consultant. The representative should have good knowledge of the aircraft type being purchased and be able to be on-site during the pre-purchase inspection.

5. Lender  The lender can be ready to approve a loan once the aircraft is identified by already having the necessary financials and ownership/operating structure in hand. This will allow the cycle time to close on the loan once the aircraft is selected to be shorter.

As we move towards a more balanced market, it is still important to be a prepared buyer. With the seller’s market waning, a buyer has more time to become a thoughtful buyer, which will hopefully result in less time and money being expended after the aircraft is acquired to correct mistakes that could have been addressed prior to closing.

The most common first step in the acquisition of an aircraft is for one of the parties, usually the buyer, to prepare and submit a letter of intent (“LOI”) to the other party. The main reason for using an LOI is to express each party’s understanding of the key business terms of the transaction and to commit to those terms in writing. The LOI confirms that the parties have reached a meeting of the minds on the key business terms. Generally, unless there are extenuating circumstances, the LOI should not be skipped, otherwise more time and effort may be expended on the negotiation of a full agreement before the parties realize they do not have a deal.

For the purchase and sale of an aircraft, the LOI is usually a short, two or three page document that includes the essential terms (identified below) of the deal. The LOI usually includes a provision requiring that the buyer submit a deposit to a specific escrow company within a certain number of days after the execution of the LOI. Additionally, the LOI usually contains a provision that it will terminate and be of no further effect if the final aircraft purchase and sale agreement (“APSA”) is not executed by a certain date.

Given that the LOI is subject to the completion of an APSA and is usually non-binding, the obligation of the parties under an LOI often may be more of a symbolic commitment than a legal commitment. In almost all aircraft LOIs, the deposit is fully refundable, which means the buyer could change her mind at any time and receive a full refund of the deposit. If the LOI is non-binding or the APSA is not agreed upon by the required date, the seller can sell the aircraft to someone else if a better deal comes along. Since the intent of the parties is not always easy to determine and the cost of litigation can be prohibitive, it is in the parties’ best interests to remove any ambiguity from the LOI and clearly state their intentions. It is paramount that the LOI state which sections of the LOI, if any, are intended to be binding on the parties or that the entire LOI is non-binding.

Is the LOI necessary? Yes, it is the best way to start the aircraft purchase and sale process to make sure the parties agree on the key business terms before spending the time and effort to prepare the full APSA. A list of the key business terms to include in the LOI is as follows:

1. Name of the buyer and seller

2. Purchase price

3. Deposit amount and number of days to remit deposit after LOI is signed

4. Escrow agent

5. Visual inspection requirements (if visual inspection has not already taken place), if any

6. Scope of pre-purchase inspection

7. The facility conducting the pre-purchase inspection and at which location

8. Purchaser’s rights to accept or reject the aircraft after the inspection (for any reason or only if significant findings)

9. Definition of discrepancies and seller’s responsibility regarding same

10. Flight cost allocation for all relevant flights

11. Aircraft delivery conditions

12. Closing process (number of days to close after discrepancies have been remedied)

13. Number of days to agree on the final APSA and which party will draft the initial version of the APSA

14. Non-binding statement except for certain key terms

15. No- Shop provision, if applicable

16. Typical miscellaneous provisions (choice of law, confidentiality, assignment rights, deadline for acceptance, taxes, international registry requirements)

The decision to use a LOI or omit the LOI step is a question that should be evaluated with regard to each deal, the parties involved, and considering all the other variables involved so that a strategic, well-informed determination can be made. Most often the LOI should be the first step in the aircraft purchase and sale process and should not be skipped.

On November 22, 2022, the Federal Aviation Administration (FAA) published the direct final rule in response to the FAA Reauthorization Act of 2018. The final rule modifies (i) the duration that certificates of aircraft registration are valid and (ii) extends the period of effectiveness of aircraft registration applications. The effective date of this final rule was January 23, 2023.

First, the rule increases the validity of certificates of aircraft registration from three years to seven years. The certificates will now expire seven years from the month issued. In addition, the FAA is applying this rule to all aircraft currently registered under the existing regulations. The temporary authorization to operate under registration applications previously expired 90 days after the date filed. Now, registration applications are valid until the earlier of (a) the applicant receiving the certificate of aircraft registration from the FAA, (b) the FAA denies the application or (c) twelve months from the date the application was filed.

Due to the rule changes a new aircraft registration application form has been created by the FAA and published for use. The AC Form 8050-1 (01/23) supersedes previous versions and should be used on a go-forward basis. Not only does the new AC Form 8050-1 (01/23) remove the language regarding the registration expiring in 90 days, but there are also other changes to note. First, on the previous form the aircraft manufacturer and model were in the same box and now they are in separate boxes. Also, there is now a box for the applicant to include an email address.

The FAA has advised that the applicant will not currently be required to include an email address on the registration application and that this box can be considered optional for now. The addition of the email address on the registration application is in connection to the ongoing transition to Civil Aviation Registry Electronic Services (CARES). Eventually as a part of the transition, the email address will become a required field.

These changes will hopefully reduce the workload of the FAA Registry and allow the registry to be able to work on the elimination of the current backlog related processing filed documents. To start, the extension of time that a certificate of aircraft registration is valid from every three years to every seven years will mean less work is needed by the FAA Registry to process aircraft registration renewals. In addition, eliminating the expiration of applications after 90 days means that extension requests for applications no longer have to be filed and processed. Currently, documents filed with the FAA registry are worked in the order they are filed unless they are expediated because it is an import or export transaction or because there is an international trip planned. Documents that are not expediated are currently taking approximately five months to be processed.

What are the practical implications of the current delay in processing and recording documents with the FAA registry?

First, the one noticed most by my clients, is that the FAA website does not accurately reflect who the registered owner of an aircraft is. Almost weekly I receive questions from my clients who recently acquired an aircraft as to why the FAA website does not show them as the owner of their new aircraft. New aircraft owners are immediately concerned that we missed something in the closing process. However, the FAA website is not updated until the filed documents are examined and approved by the FAA registry. As a result, the current FAA website does not reflect changes to ownership, legal name changes, mergers, etc. filed within the last five months.

The second issue that is impacting aircraft owners is the inability to change the aircraft registration number in a reasonable time period. Just as you can personalize the license plate on your car, you can also select the registration number for your aircraft (subject to the guidelines established by the FAA and if the desired registration number is available). However, there is no way to expediate the process. For example, if the registration number you have on the aircraft you are selling is the same number you want to use on the aircraft you are purchasing it can take up to a year to complete that change. It will take approximately five months to receive the authorization to remove the registration number from the aircraft that was sold and reserve it back. It will take an approximate second five months to request the assignment the registration number to the new aircraft.

Next is the impact on international trips. The authorization to operate under the registration application only allows for flights within the continental United States. If an aircraft has an international trip that comes up quickly, it may no longer possible. Without the aircraft registration (not issued until the registration application is processed) the applicant is required to file a declaration of international operations to obtain a fly wire. The declarations of international operations I have filed recently have taken between three to five business days to process. As a result, travel outside of the continental United States on an aircraft that is purchased but where the application for registration has not been processed due to the five month backlog of the FAA registry, is not immediately possible.

Finally, there is an impact to lenders. Until the documents filed and indexed are actually examined it is unknown if the FAA registry will accept or deny the documents. It is also unknown if there are any errors in the filed documents that will cause them to be rejected. As a result, after initially filing it could be five months or more before a security agreement is rejected due to a typographical error or a more substantive error. Additionally, for aircraft that are financed and quickly bought and sold, the lien releases should contain the conveyance number assigned by the FAA registry. However, the conveyance number is not assigned until the documents are examined and recorded. As a result, if an aircraft is bought and sold before the original documents are examined the lien release cannot contain the conveyance number. I believe this will cause issues with title opinions for the aircraft in the future and will generate additional work in order to confirm that clear title can be conveyed.

Thoughtful change to the aircraft registration process is needed. I’m hopeful that these changes are a step in the right direction to get the FAA registry back on track and reduce the processing time for documents filed with the FAA- which would be welcome result for all involved.

Effective immediately the FAA Aircraft Registry announced on December 12, 2022 that it was restricting access to ancillary documents at the Registry to only Federal employees and Federal contractors. As a result, access to ancillary documents by Permit Holders (i.e. aircraft escrow agents and attorneys who specialize in aircraft registry matters) has been terminated. Ancillary documents include statements in support of registration filed for limited liability companies or partnerships, legal name change documents, powers of attorney, corporate merger documents, and trust documents.

The FAA stated this change was being implemented “because of concern about the inadvertent release of proprietary data and personally identifiable information (PII)”, and that “This decision is being made after careful Legal review regarding privacy concerns under the Trade Secrets Act (18 U.S.C. 1905) that prohibits disclosure of proprietary data, and the Privacy Act (5 U.S.C. 552a(b)) that prohibits disclosure of sensitive PII.”

Process change is always difficult, but implementation of this sweeping change during the busiest time of the year is worrisome, particularly with so many parties trying to close transactions prior to the end of the year. The most immediate impact that will be felt with regard to statements in support of registration. Since the statements already on file with the FAA will no longer be accessible to escrow agents and FAA registry attorneys, a new statement in support of registration may be needed, if the previously filed statement is not otherwise available. This is to ensure that the proper signatories and titles are included on the documents filed with the FAA.

We will keep you updated as Permit Holders, industry leaders, and the FAA work through possible solutions to address FAA concerns related to privacy and as new processes are developed.