BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 2818 |Hearing |6/29/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Chiu |Tax Levy: |Yes | |----------+---------------------------------+-----------+---------| |Version: |6/22/16 Amended |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Grinnell | |: | | ----------------------------------------------------------------- Property taxation: community land trust Adds contracts with affordability restrictions to the list of items an assessor must consider when determining the value of land. Background Article XIII of the California Constitution provides that all property is taxable unless explicitly exempted by the Constitution or federal law. The Constitution limits the maximum amount of any ad valorem tax on real property at 1% of full cash value, and directs assessors to only reappraise property when newly constructed, or ownership changes (Proposition 13, 1978). Community Land Trusts. Formed by local agencies, employers, nonprofits, or grassroots organizations, Community Land Trusts (CLTs) are typically non-profit organizations that seek to promote affordable housing by acquiring and retaining ownership of real property in a specific geographic area using capital or land from private donations or public sources. While the first CLTs were formed in rural areas in the 1970s, nearly 200 exist nationwide today, with approximately 20 in California. CLTs mostly operate in higher-income urban and suburban areas, and under federal law, must: AB 2818 (Chiu) 6/22/16 Page 2 of ? Not be sponsored by a for-profit organization; Be established to acquire parcels of land, held in perpetuity, primarily for conveyance under long-term ground leases; transfer ownership of any structural improvements located on such leased parcels to the lessees; and retain a preemptive option to purchase any such structural improvement at a price determined by formula that is designed to ensure that the improvement remains affordable to low- and moderate-income families in perpetuity; Have corporate membership that is open to any adult resident of a particular geographic area specified in the bylaws of the organization; and whose board of directors must be equally comprised of leaseholders, community representatives, and other individuals representing the public interest. In addition to operating rental units, CLTs use a creative ownership model to fund affordable housing sales. First, the CLT divides the underlying land, which it owns in perpetuity, from the home, which is sold to the qualifying resident. The CLT leases the land to the resident via a 99-year ground lease. Only residents considered low- to moderate income in that area can buy the home, which is subject to resale price restrictions contained in the ground lease that stipulate the resale price formula that provides for a fair, but below-market, return on the resident's investment. Additionally, restrictions only allow sales to other low-to-moderate income individuals. The CLT maintains the option to repurchase any structure on its land. When the CLT owns the land, it pays property taxes, but residents are assessed after purchasing the property from the CLT. Assessors' considerations. To determine value, the law effectively presumes that a property's purchase price in the transaction is its full cash or fair market value. The law further defines the purchase price to include the total consideration provided by the purchaser, or on the purchaser's behalf, valued in money, paid in money or otherwise. However, assessors must consider enforceable restrictions, such as zoning and environmental restrictions, as well as recorded contracts with government entities when valuing land. State law establishes a rebuttable presumption that such a restriction is AB 2818 (Chiu) 6/22/16 Page 3 of ? permanent, and that the value of the land is substantially equivalent to the value attributable to its legally permissible use. The assessor can overcome the presumption by showing by a preponderance of the evidence that the restriction will be lifted in the predictable future. The law does not require assessment of any land at less than its full value or as prohibiting the use of representative comparable sales information on land under similar restrictions when such information is available. As a general rule, private parties cannot reduce the taxable value of their property by imposing private encumbrances upon it; only enforceable government restrictions are recognized as limiting the full fee simple interest. Until recently, assessors could only consider contracts with government agencies when determining the effect upon value of enforceable restrictions except for land preservation easements held by non-profit entities. Last year, the Legislature added onto the list of enforceable restrictions contracts in response to differing assessment methods applied to homes constructed and sold by Habitat for Humanity (AB 886, Gomez, 2015) that meet all of the following requirements: With a nonprofit 501(c)(3) that has received a welfare exemption for properties intended to be sold to low-income families who participate in a special no-interest loan program. That restrict the use of the land for at least 30 years to owner-occupied housing available at affordable housing cost, as defined, That include a deed of trust on the property in favor of the nonprofit corporation to ensure compliance with the terms of the program, which has no value unless the owner fails to comply with the covenants and restrictions of the terms of the home sale. Where the local housing authority or, if none exists, the city attorney or county counsel, has made a finding that the long-term deed restrictions in the contract serve a public purpose, and That are recorded and provided to the assessor. AB 2818 (Chiu) 6/22/16 Page 4 of ? Some CLTs argue that assessment of community land trust property varies considerably in the state. Seeking to improve consistency of assessment of CLT properties statewide, CLTs want to explicitly include their model on the list of enforceable restrictions assessors must consider when valuing land. Proposed Law Assembly Bill 2818 adds to the list of enforceable restrictions that the assessor must consider recorded instruments where the following apply: The contract is a renewable 99-year ground lease between a community land trust and the qualified owner of an owner-occupied single-family dwelling or an owner-occupied unit in a multi-family dwelling. The contract subjects a single-family dwelling or unit in a multifamily dwelling, and the land on which the dwelling or unit is situated that is leased to the qualified owner by a community land trust for the convenient occupation and use of that dwelling or unit, to affordability restrictions. The county counsel, the director of a county housing department, the city attorney, the director of a city housing department, makes a finding that the affordability restriction in the contract serves the public interest to create and preserve the affordability of residential housing. The recorded instrument is provided to the assessor. The measure defines several terms, including "affordability restrictions" to mean that all of the following must be met: The property can only be sold or resold to qualified owners, defined as persons and families of low to moderate income, to be occupied as a principal place of residence. The sale or resale price of the property is determined by a formula that ensures that its purchase price is AB 2818 (Chiu) 6/22/16 Page 5 of ? affordable to qualified owners. The community land trust has a purchase option on the property intended to preserve the dwelling or unit as affordable to qualified owners. The property remains affordable to persons and families of low or moderate income by recorded deed, deed restriction, ground lease, covenant, memorandum, or other recorded instrument. State Revenue Impact No estimate. Comments 1. Purpose of the bill . According to the author, "Community Land Trusts (CLTs) are nonprofit organizations that employ a unique and innovative method to permanently preserve the availability of affordable homeownership opportunities. CLTs achieve this goal by separating the ownership of land from the ownership of a home (the improvements). A CLT home is sold to a qualifying low or moderate-income family, but the cost of the land is not passed on through the transaction. Instead, the nonprofit CLT retains ownership of the land and maintains a supportive relationship with homeowners to help ensure their success. While the homeowner does not possess title to the land, they lease the land from the CLT for a nominal monthly administrative fee which grants them exclusive rights to the land. Homeowners are able to capture a portion of the equity when the home is sold but not all of it, keeping the home affordable for the subsequent homeowner. Homeowners that own CLT homes throughout the state have experienced an inconsistent methodology for assessing property taxes. In some cases the homes are assessed at the "fair market value" which does not take into consideration the underlying land lease and its restrictions on the resale price. In other cases, homes are assessed somewhere in between market and the actual restricted value with varying explanations for the inconsistency. The ongoing affordability of CLT homes critically relies on the accurate and fair assessment of the home. In some cases, the AB 2818 (Chiu) 6/22/16 Page 6 of ? property taxes are nearly double what they should be, particularly when assessed at the market value. Even 10 to 20 percent higher taxes can make these homes no longer affordable, putting the homeowner in jeopardy of foreclosure or unable to properly maintain the physical property. AB 2818 would require assessors to consider the underlying land lease and the affordability restrictions on a CLT home to determine the value of the property for the purpose of assessment." 2. Need . The CLT affordable housing model does not cleanly fit the general practice of determining value for property tax purposes, which generally sets the purchase prices of the entire property as its base year value, because the CLT sells only the structure, but retains ownership of the land under the 99-year ground lease. As such, CLTs report inconsistent methodology for assessing property taxes: in some cases, the units are assessed at "fair market value," which does not take into consideration the underlying land lease and restrictions on home resale price, while in others, the units are assessed in between the market and restricted value with varying explanations for the inconsistency. For example, the Oakland CLT (OakCLT) states that while it technically owns the land, "there is no value to the land that it can realize apart from the nominal below-market monthly lease fee ($50/month) collected?the value of the land under an OakCLT home is fully included in the restricted sales price." OakCLT believes that the total assessed value, both improvements and land, of a CLT property should be based upon the restricted sales price of the home. AB 2818 seeks to address this inconsistency by adding the CLT model onto the list of enforceable restrictions state law directing assessors to consider when determining value. 3. Parity, part one . For many years, assessors could not consider enforceable restrictions imposed by private parties when determining the value of land except for land conservation easements. After several years of unsuccessful legislative efforts to create valuation uniformity, the Legislature last year directed assessors to consider the Habitat for Humanity "silent second," housing affordability model, where Habitat records a deed of trust that has no value other than to ensure compliance with their affordable housing program. AB 2818 enacts a similar policy for the CLT model. 4. Parity, part two . State law affords Habitat for Humanity, AB 2818 (Chiu) 6/22/16 Page 7 of ? and other organizations like it, an additional benefit not currently contemplated by AB 2818: a welfare exemption from property tax for the period of time after they acquire the property, but before they sell it to a qualified buyer. The California Constitution allows for welfare exemptions for a variety of organizations and uses of property. State law details these exemptions which provide that the property owner need not pay property tax, presuming that the organization will more charitably use any funds that would have used to pay the tax, and therefore any government services it would have funded. Assembly Actions Assembly Revenue and Taxation 9-0 Assembly Appropriations 14-0 Assembly Floor 80-0 AB 2818 (Chiu) 6/22/16 Page 8 of ? Support and Opposition (6/23/16) Support : AMCAL Multi-Housing, Bay Area Community Land Trust, Beverly-Vermont Community Land Trust, Bolina Community Land Trust, California Association of Local Housing Finance Agencies, California Housing Consortium, Community Land Trust Association of Western Marin, The Dellums Institute of Social Justice, Enterprise Community Partners, Greenlining Institute, Grounded Solutions Network, Habitat for Humanity, Housing Land Trust of Sonoma County, Irvine Community Land Trust, Marty's House Affordable Housing Corporation, Northern California Land Trust, Oakland Community Land Trust, PolicyLink, Preserving Affordable Housing Assets Longterm Incorporated; San Diego Community Land Trust, San Diego Housing Federation, San Francisco Community Land Trust, Sustainable Economies Law Center, T.R.U.S.T. South LA, Urban Strategies Council, 11 individuals. Opposition : None received. -- END --