BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 2818                          |Hearing    |6/29/16  |
          |          |                                 |Date:      |         |
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          |Author:   |Chiu                             |Tax Levy:  |Yes      |
          |----------+---------------------------------+-----------+---------|
          |Version:  |6/22/16    Amended               |Fiscal:    |Yes      |
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          |Consultant|Grinnell                                              |
          |:         |                                                      |
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                        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:








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                 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  








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          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.








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          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  








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               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  








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          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,  








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          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


































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          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.



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