BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2818


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          2818 (Chiu and Thurmond)


          As Amended  August 17, 2016


          Majority vote.  Taxy Levy


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          |ASSEMBLY:  |80-0  |(June 1, 2016) |SENATE: |39-0  |(August 22,      |
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          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.








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          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).









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             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,  








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            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.








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          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  








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               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,









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             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:  









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          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  








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            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  








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            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