BILL ANALYSIS Ó AB 2818 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2818 (Chiu and Thurmond) As Amended August 17, 2016 Majority vote. Taxy Levy -------------------------------------------------------------------- |ASSEMBLY: |80-0 |(June 1, 2016) |SENATE: |39-0 |(August 22, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: REV. & TAX. SUMMARY: Requires the county assessor to consider, when valuing real property for property taxation purposes, affordability restrictions imposed on housing units and the land on which the units are situated, as specified. The Senate amendments: 1)Require the affordability restrictions a county assessor must consider, when valuing real property for property taxation purposes, to be provided in a recorded contract that is a renewable 99-year ground lease between a community land trust (CLT) and the qualified owner, as specified. AB 2818 Page 2 2)Revise the definition of "affordability restrictions" to mean that all of the following conditions are met: a) The dwelling or unit can only be sold or resold to a qualified owner to be occupied as a principal place of residence. b) The sale or resale price of the dwelling or unit is determined by a formula that ensures the dwelling or unit has a purchase price that is affordable to qualified owners. c) There is a purchase option for the dwelling or unit in favor of a CLT intended to preserve the dwelling or unit as affordable to qualified owners. d) The dwelling or unit is to remain affordable to qualified owners by a renewable 99-year ground lease. 3)Revise the definition of "community land trust" to mean a nonprofit corporation organized pursuant to Internal Revenue Code Section 501(c)(3) that satisfies all of the following: a) Has as its primary purpose the creation and maintenance of permanently affordable single-family or multifamily residences. b) All dwellings and units located on the land owned by the nonprofit corporation are sold to a qualified owner to be occupied as the qualified owner's primary residence or rented to persons and families of low or moderate income (LMI). AB 2818 Page 3 c) The land owned by the nonprofit corporation, on which a dwelling or unit sold to a qualified owner is situated, is leased by the nonprofit corporation to the qualified owner for the convenient occupation and use of that dwelling or unit for a renewable term of 99 years. 4)Revise the definition of "qualified owner" to mean persons and families of LMI, including persons and families of LMI that own a dwelling or unit collectively as member occupants or resident shareholders of a limited equity housing cooperative (LEHC). 5)Add a joint author. EXISTING LAW: 1)Limits the maximum amount of any ad valorem tax on real property at 1% of full cash value. 2)Requires property to be reassessed to current fair market value whenever it is purchased, newly constructed, or when ownership changes, with specified exceptions, and provides a rebuttable presumption that the fair market value is the purchase price. 3)Defines "purchase price" as the total consideration provided by the purchaser or on the purchaser's behalf, valued in money, whether paid in money or otherwise. 4)Requires county assessors, when determining assessed valuation, to consider the effect on property of the value of any enforceable restrictions against the use of the land, AB 2818 Page 4 including but not limited to: a) Zoning restrictions; b) Development controls in accordance with local coastal or protection programs; c) Statutory environmental constraints; d) Hazardous waste land-use restrictions; e) Recorded conservation, trail, or scenic easements; f) Solar-use easements; or, g) Recorded contracts with a non-profit corporation granted a welfare exemption for properties intended to be sold to low-income families who participate in a special no-interest loan program. The contract must restrict use of the land for owner-occupied affordable housing for at 30 years, include a deed of trust in favor of the nonprofit corporation to ensure compliance, and be provided to the assessor. The local housing authority or equivalent agency must also make a finding that the long-term deed restrictions serve a public purpose. [Revenue & Taxation Code (R&TC) Section 402.1] AS PASSED BY THE ASSEMBLY, this bill: 1)Required the county assessor, when valuing real property for property taxation purposes, to consider affordability restrictions provided in a recorded instrument to the county assessor, as specified. AB 2818 Page 5 2)Provided that the recorded instrument must subject a single-family dwelling or unit in a multifamily dwelling, and the land on which the dwelling or unit is situated that is required for the convenient occupation and use of that dwelling or unit by LMI households, to affordability restrictions. 3)Provided that a finding must be made, by one of the following public agencies or officials, that the affordability restrictions serve the public interest to create and preserve the affordability of residential housing for LMI households: a) The director of the local housing authority or equivalent agency; b) The county counsel; c) The director of a county housing department; d) The city attorney; or, e) The director of a city housing department. 4)Provided that "affordability restrictions" include all of the following: a) The dwelling or unit can only be rented, sold, or resold to LMI households to be occupied as a principal place of residence; b) The sale or resale price of the dwelling or unit is AB 2818 Page 6 determined by a formula that ensures the dwelling or unit has a purchase price affordable to LMI households; c) The rent collected from the dwelling or unit, if applicable, does not exceed the maximum rent allowable to be collected from LMI households; d) There is a purchase option for the dwelling or unit in favor of a CLT intended to preserve the dwelling or unit as affordable to LMI households; and, e) The dwelling or unit is to remain affordable to LMI households by recorded deed, deed restriction, ground lease, covenant, memorandum, or other recorded instrument. 5)Defined a "community land trust" as a nonprofit corporation, otherwise qualifying for exemption under R&TC Section 214, that satisfies both of the following: a) Has as one of its primary purposes the creation and maintenance of permanently affordable single-family or multifamily residences; and, b) All residences on the land are sold to a qualified owner to be occupied by LMI households as their primary residence, and the land on which the dwelling or unit is situated is leased by the nonprofit corporation to the qualified owner for the convenient occupation and use of that dwelling or unit for a renewable term of 99 years. 6)Defined a "qualified owner" as either of the following: a) A LEHC; or, AB 2818 Page 7 b) Persons and families of LMI. 7)Defined a "limited equity housing cooperative" as having the same meaning as the term in Civil Code Section 817. 8)Defined "persons and families of low or moderate income" as having the same meaning as the term in Health and Safety Code Section 50093. 9)Imposed a state-mandated local program and provides that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. 10)Provided that no appropriation is made and the state will not reimburse local agencies for property tax revenues lost by them pursuant to this bill. 11)Took effect immediately as a tax levy. FISCAL EFFECT: According to the Senate Appropriations Committee, this bill would result in an unknown annual property tax revenue loss, potentially in the low millions of dollars over several fiscal years (see Senate Appropriatons Committee Staff Comments). Reductions in local property tax revenues, in turn, increase General Fund Proposition 98 spending by up to roughly 50% (the exact amount depends on the specific amount of the annual Proposition 98 guarantee, which in turns depends upon a variety of economic, demographic and budgetary factors). Administration costs related to this bill are expected to be minor. COMMENTS: AB 2818 Page 8 1)Community Land Trusts: CLTs provide an affordable housing model to help LMI households that may not otherwise be able to purchase a home. The CLT acquires and develops properties for sale to LMI households, but retains ownership of the underlying land and leases the land to the homeowner for a nominal fee through a long-term ground lease (usually a 99-year term). The home is therefore more affordable because the homeowner is only buying the building and not the land underneath. If the homeowner decides to sell the property, the home must be resold to another LMI household, and the original owner will only be eligible for a smaller share of its appreciated value. Since the CLT is the owner of the land, it will be a party to all future sales and enforce resale restrictions. According to the California CLT Network, it appears that many CLTs in California also have robust rental portfolios restricted for LMI households. A CLT is generally formed as a membership-based, non-profit organization with a professional staff, led by a member-elected board of directors and funded by land rent fees. Members include CLT homeowners, neighbors, and other local residents, providing community buy-in over local development. Many CLTs also provide homeowners with homebuyer education and financial literacy courses. While a subsidy is often needed to start a CLT, outside funding is no longer necessary once homes are occupied, which provides steady fee revenues, and are resold, which recycles the original subsidy thereby allowing homes to remain permanently affordable. According to the National CLT Network, virtually all CLT leases pass along the cost of property taxes to the homeowner. The homeowner is either directly assigned to pay property taxes associated with both the home and underlying land, or is directly assigned to pay property taxes associated with the home and then pays any property taxes associated with the underlying land via its lease fee to the CLT. 2)Assessment of Restricted Homes: Existing law requires every AB 2818 Page 9 assessor to assess property subject to tax at its full value. In the assessment of land, the assessor must consider the effect of any enforceable restrictions to which the use of land may be subject, such as zoning, easements, environmental restrictions, and recorded contracts with governmental agencies including those outlining affordable housing restrictions. However, "[a]s a general rule, private parties cannot reduce the taxable value of their property by imposing private encumbrances upon it; only enforceable government restrictions under [R&TC] Section 402.1 are recognized as limiting the full fee simple interest." (Assessor's Handbook Section 502, ADVANCED APPRAISAL December 1998, Reprinted January 2015, pg. 6). The inability of private parties to reduce the taxable value of their property through self-imposed private encumbrances has long been recognized by the courts. (Carlson v. Assessment Appeals Board (1985) 167 Cal. App. 3d 1004). Last year, AB 668 (Gomez) Chapter 698, Statutes of 2015, provided that specified self-imposed private encumbrances could result in assessments of reduced property taxes if the applicable contract is recorded and provided to the assessor. Authorized contracts are limited to those by a non-profit corporation granted a welfare exemption to sell low-income families participating in a special no-interest loan program affordable housing, similar to the model utilized by Habitat for Humanity. As a result, assessors must now consider the non-profit's organization-imposed restrictions when determining a property's assessed valuation. 3)How Are CLTs Assessed? According to the author, CLTs in California experience an 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. In other cases, 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 AB 2818 Page 10 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 (i.e., $150,000)." As such, OakCLT believes that the total assessed value (improvements and land) of a CLT property should be based upon the restricted sales price of the home. 4)Purpose of This Bill - Consistent Assessments: This bill follows the precedent established by AB 668 and requires the county assessor to consider the effect of private party affordability restrictions on a property's use when determining that property's assessed valuation. In order to benefit from such consideration, a recorded contract must be provided to the county assessor that subjects the property to specified affordability restrictions. A public agency or official must also find that the affordability restrictions in the contract serve the public interest to create and preserve the affordability of residential housing for LMI households. Analysis Prepared by: Irene Ho / REV. & TAX. / (916) 319-2098FN: 0004734