"Does not qualify for like kind due to not identifying 2nd property within the 45 days."

And, did not shelter this through an escrow agent? And, touched the money directly (got the proceeds in hand)? Like property and date range are only part of the picture; you can buy and then sell, or sell and then buy. But doing it yourself bypasses 1031 exchange, by definition.

"doesn’t technically own the property can they take depreciation?"

Do they have the use of it?