Chapter 6: Address Long-Term Affordability
This chapter discusses what can happen at the expiration of the IRS compliance period. It explores the investors’ options to exit the deal, and discusses how their exit options may affect the PJ’s ability to enforce HOME affordability restrictions. This chapter further identifies steps the PJ can take at the funding stage to preserve affordability when investors exit the deal at the end of the compliance period.
HOME and LIHTC Long-Term Affordability
While PJs are concerned with maintaining decent, safe, and affordable housing in their communities for low-income families, investors in LIHTC projects are interested in receiving a fair financial return on their investment. The development of affordable multifamily housing usually meets the objectives of both parties for a number of years. However, when the LIHTC tax benefits and their related use restrictions expire, a sale of the property may occur and it may become a challenge for the PJ to preserve affordability and enforce the HOME affordability restrictions.
It is important for PJ staff to understand the implications of the expiring LIHTC compliance period on the project, especially when the HOME affordability period is for more than the 15-year LIHTC compliance period. (This is true for many HOME and LIHTC new construction projects, where the HOME affordability period is a minimum of 20 years—five years beyond the expiration of the 15-year initial compliance period of the LIHTC.
HOME Affordability Period
The HOME Program requires PJs to impose affordability restrictions for an affordability period that remains in place without regard to any other requirements of other lenders or programs. With the exception of new construction, a 5- to 15-year minimum affordability period is based on the amount of per unit of HOME investment, as shown in Exhibit 5-1 in Chapter 5. For new construction, a minimum period of 20 years is required. During this affordability period, the compliance requirements discussed in Chapter 5 apply. As previously noted, the PJ can impose longer term affordability periods.
The HOME affordability restrictions are enforced through the use of a deed restriction or restrictive covenant that runs with the land and is recorded in the appropriate jurisdiction (discussed in Chapter 3).
LIHTC Compliance and Extended Use Period
The LIHTC Program requires the investor to hold the LIHTC investment for 15 years, during which time the investor’s tax credits are subject to credit recapture by the IRS.
After 1989, the Internal Revenue Code (IRC, or the Code) requires an extension of the use restriction on the property that expires the later of 15 years after the tax credit compliance period ends or a date specified by the state. This is referred to as the extended use period. However, the Code also permits the investors to exit the project at that point, raising the possibility that ownership and financing may need to be restructured.
Typical Investor Exit Strategies
The tax credits are realized by the investor in the first ten years of the project. The Code permits investors to request to be bought out after the initial 15-year compliance period, and allow a successor owner to complete the extended use period. Therefore, most investors view their position in the project as a 15-year investment. An investor determines on the front end of the investment what exit strategy makes economic sense to optimize its return on its investment. At the end of the 15-year compliance period, the investor might have two options:
- Continue ownership and re-capitalize the project
- Exit its ownership interest.
Some investors may choose to continue ownership, but may require additional capital investment to address refinancing needs (on balloon mortgages) and additional capital investment to make improvements to the aging project.
However, most investors can be expected to opt to exit the ownership, as their tax credits have been used up. Under the Code, the state’s allocating authority attempts to identify a successor owner. If it fails to find a successor, there are provisions to phase out the affordability restrictions.
PJs with affordability requirements that extend beyond the IRS compliance requirement, especially in the case of new construction where the HOME affordability is a minimum of 20 years, should understand the options available to an investor and how they may affect a HOME-assisted project.
Up-front, and before negotiating the terms of the HOME investment, the PJs should know what exit strategy the LIHTC investor has selected. Information on the exit strategy may be contained in the partnership agreement (discussed in Chapter 3), or it may include options to be exercised later. PJs should assume that investors will wish to exit after 15 years unless otherwise committed in the partnership agreement, and negotiate appropriate protections in the HOME written agreement to ensure that the PJ will be able to enforce the HOME affordability requirements even if the investor exits the partnership.
In either case – recapitalization or exit – PJs need to keep in mind that HOME rules restrict the ability of the PJ to invest additional HOME funds in the project during the HOME affordability period.
If the PJ is unable to protect its affordability period beyond the expiring use of the LIHTC period or foreclosure, and the property does not continue to meet the HOME affordability requirements, the PJ is at risk of repaying the HOME funds invested in the project, whether or not those funds are recovered from the project.
Effects of Exit Strategy on Pricing of Credits
The type of exit strategy affects the price investors are willing to pay for the credits. The investor calculates an anticipated rate of return on its investment, including the financial and tax effects of the exit strategy. If the PJ negotiates or requires a different exit strategy than what the investors plan, this might impact the syndication yield.
For a full understanding of the model used for a particular project, PJs should consult with the owners of the project and the owner’s or PJ’s tax and/or legal counsel. However, some of the investor’s financial considerations related to its exit strategy are:
- Capital gains resulting from a sale
- Distribution of partnership assets other than the real estate
- Transaction costs related to a sale or transfer of title
- Potential tax benefits if the investor’s interest is donated to a 501(c)(3) nonprofit organization
- Exit taxes.
PJs need to find the appropriate balance between the investor’s economic interests and the PJ’s interest to preserve affordability. If the requirements of the PJ restrict the economic benefits to the investor, the PJ may need to provide more HOME funds to provide a better product.
Typical Investor Exit Strategies
PJs need to think about three things as they contemplate structuring the deal in a manner to preserve long-term affordability and maintain enforcement of the HOME requirements:
- If the investors want to exit after 15 years, what mechanisms can help to ensure that a successor sympathetic to maintaining affordability can purchase the property?
- What terms of the HOME investment can help to induce the successor to maintain affordability?
- How can the financing needed to buy out the investors and make needed improvements to the units be achieved, especially if the HOME affordability period prevents additional HOME investment?
Mechanisms for Controlling Changes of Ownership
When the HOME affordability period extends beyond the 15-year LIHTC compliance period, at a minimum, the PJ should require the LIHTC project owner to notify it when certain actions are taken or milestones are reached, including exit or change of ownership.
However, there are additional protections the PJ can put into place to strengthen its ability to enforce the HOME affordability restrictions during the remaining years of the affordability period if a change of ownership is required, including:
- Right of First Refusal
- Sale of units to tenant-occupants
- Option to purchase.
Right of First Refusal
The Code allows the sale of LIHTC projects to certain qualified groups at a bargain price, known as the “Qualified Contract” price through a Right of First Refusal. In this scenario, the Right of First Refusal gives the qualified group the right to purchase the property from the investor before the investor can sell the property to another party. The Code permits LIHTC project owners to offer the Right of First Refusal to the following groups:
- Government agencies
- Qualified nonprofit organizations
- Resident management corporations.
If the investor plans to give a Right of First Refusal to a qualified nonprofit, the PJ should secure an agreement with that nonprofit regarding any HOME affordability that extends beyond the LIHTC expiring use agreement. If the investor has not identified a qualified nonprofit to act as owner of the project, the PJ should consider requesting a Right of First Refusal itself so it can ensure continued HOME compliance.
If a PJ or a qualified nonprofit elects to enter into an agreement that provides them with the Right of First Refusal, the bargain price imposed by the Code is the total debt on the project plus any exit taxes.
“Exit taxes” are the investor’s tax liability in the event that the cumulative tax losses on the project exceed the investor’s investment of capital in the project, resulting in the investor having a “negative basis.” For example, if an investor made an original capital contribution of $1 million, received $100,000 in cash distributions over 15 years, and recognized $1.3 million in losses over 15 years, that investor’s tax basis would be negative $400,000 at year 15. If this investor donated its limited partner position to a charity, or sold its investment for a penny, or lost its investment to foreclosure, the investor would have $400,000 of taxable income and, in a 35 percent tax bracket, would owe $140,000 of income taxes. This “exit tax” ($140,000 in this example) creates a barrier to preservation, because it makes the investor reluctant to relinquish its partnership interest, even though selling may otherwise be the optimum strategy.
Tenants are also able to purchase their units under a Right of First Refusal. Some tax credit deals are designed as longer term lease-purchase programs, whereby the initial tenants rent their units with the understanding that at the time the LIHTCs expire, they will have the option to purchase.
The long-term lease-purchase option is not what is contemplated under the HOME Program lease-purchase requirements; HOME requires that the tenant/buyer purchase the property within 36 months of signing the lease-purchase agreement. However, the HOME Program does permit a rental property owner to sell or otherwise convey rental units to existing income-eligible tenants under 24 CFR 92.255. To do this, the length of time that remains on the HOME affordability period for the rental property would be imposed on the tenant/buyer, and the tenant/buyer would be subject to the HOME homeownership requirements of 24 CFR 92.254. (If the tenant/buyer were provided additional HOME funds, the affordability period would be redetermined to include these funds.) Therefore, tenant purchase is possible even when the HOME affordability period extends beyond the 15-year tax credit compliance period.
This strategy is risky, however, since the investor will not be able to convey HOME-assisted units to any tenant whose income has increased above 80 percent of AMI. There may be opportunities to use this strategy in properties with only a percentage of HOME-assisted units. PJs should work with the owners and their legal counsel to see if it is appropriate to invest HOME funds in projects with this type of exit strategy.
Option to Purchase
Another expiring use strategy is an “Option to Purchase” the investor’s ownership interest in the project. This option provides the General Partner in the ownership entity the right to buy out the investor’s limited partnership interest at the time the requirements of the LIHTC expire. Since the ownership of the real estate remains the same, there are no sale transaction costs.
While the IRS at-risk rules do not permit a fixed price set in advance, up-front negotiation of formula approaches to sales price are permitted, and usually incorporate one or both of the following amounts:
- Fair market value of the partnership interest
- Investor’s unpaid benefits plus any exit taxes.
To protect the HOME affordability period, a PJ should require notification and the right to approve any change in ownership of both the property and the owner of the property prior to the transaction.
A variation on the Option to Purchase is what is referred to as a “Put, ” which requires the General Partner to acquire the investor’s interest in the project. The price to acquire the interest is agreed to on the front-end by the parties. A PJ should know that this is part of the ownership structure prior to committing HOME funds to the project. If the PJ approves this arrangement, it should include a notification clause in the HOME agreement.
Terms of the HOME Investment
When making decisions about the investment of HOME funds in a HOME-LIHTC project, PJs need to think about the potential exit of the investors and how to best invest the funds to ensure long-term affordability.
First, as said in other parts of this guide, the deed, covenant, or other mechanism should be recorded ahead of liens, as the restructuring of the financing will be required as part of the recapitalization or buyout of the investors, and the use restrictions need to survive the refinancing or sale.
Second, the HOME financing will need to be recorded as debt (through note and mortgage or deed of trust) to ensure that the PJ has a claim on the actual HOME funds in any restructuring of foreclosure that could trigger repayment. The lien position is an important consideration.
Third, the HOME debt is likely to be structured on a cash flow basis so that it can be included in the tax credit basis, and the accrual of debt increases the leverage of the HOME agency to influence the sale.
Fourth, the HOME debt should be due on sale, but assignable to an approved buyer, such as a nonprofit, that will continue to preserve affordability.
And, finally, if the use of some or all of the HOME funds might be directed toward acquisition of land, providing the funding to a land trust or nonprofit and a land lease keeps the ownership of the land in the hands of the nonprofit and removes land appreciation from the buyout price.
Financing the Sale and Preservation
Refinancing is typically part of most exit or recapitalization strategies. Depending on the original loan terms and current lending market conditions, refinancing of the original debt may create some additional debt capacity, which is needed to raise funds for the required exit payment to the investors and for current rehabilitation needs.
After 15 years of operation, a project may require large capital outlays to replace or repair major building systems such as the roof or the heating and air conditioning system. If replacement reserves are distributed to the original investor as part of its exit strategy, and there are no funds in a reserve account to replace them, the existing general partner or new owner will need to find ways to fund the repairs or the property may fall into a state of disrepair. The property may not be able to support additional bank debt to pay for the repairs or rehabilitation.
Depending on the partnership agreement, the operating and replacement reserves in the project may be part of the distribution to the original owners at the time of sale or transfer of ownership. This is not in the interest of the project, as those reserves are needed for the project going forward.
Re-syndication is another option available to owners to raise capital for their project.
During the HOME affordability period, the PJ is not permitted to provide additional HOME funds, so the PJ and new owner will need to identify other sources of capital for these projects. Note that if the HOME affordability period has expired, PJs may make a new commitment of HOME funds, subject to the HOME requirements.
PJs should be open to refinancing or recapitalization strategies that preserve affordability and HOME compliance, including re-subordination of new debt, assumption of the HOME debt by a new owner, and addition of new sources that enable the buyout and necessary rehabilitation.
Including Long-Term Affordability and Preservation of HOME Compliance into Development Negotiations
It is important for PJs to integrate the relevant preservation strategies into their HOME agreements whenever possible. This can be accomplished if the PJ understands the investor’s exit strategy at the earliest stage of the development process.
Sometimes, the owner of an affordable housing development seeks HOME funds from a PJ after the LIHTCs are allocated, or shortly before an application deadline. The PJ may feel pressure to accommodate the owner’s terms so that important tax credits are not lost to its community. However, even when this occurs, the PJ has a responsibility to understand the entire financing structure of the project, including the exit strategy, prior to committing HOME funds.
The best approach to ensure that all parties understand the terms, conditions, and needs of the other parties to the transaction is to bring all the stakeholders or their representatives together to discuss all aspects of the deal, including expected outcomes, and the investor’s anticipated exit strategy.
The stakeholders include:
- Managing General Partner of the ownership entity
- HOME sponsor, if different than above
- The state allocating agency
- Lender representatives
- LP investor or its representative
- Legal and tax counsel.
The PJ is investing HOME funds and it should expect, as a minimum return on its investment, compliance with HOME affordability requirements over the long term. Even when contacted late in the deal, the PJ must make sure that provisions are incorporated into HOME agreements to ensure compliance with HOME requirements throughout the affordability period.
Areas that PJs should consider in their negotiations are:
- Agreements that survive foreclosure
- Agreements with the owners that provide the PJ (or an appropriate successor) the Right of First Refusal in the event of a sale initiated by the LIHTC investor that precedes the expiration of the HOME and/or PJ affordability period
- Agreements with the owners and all other lenders that provide the PJ notification in the event of default or noncompliance
- Agreements with the owners and all lenders that allow the PJ the right to cure the event of default, and where possible, any identified noncompliance issue
- A provision in any agreement(s) with the owner that any change in ownership and/or management must be approved by the PJ.
Consulting Services We Provide
- Review public works preconstruction contracts
- Monitor DIR contractor/subcontractor certified payrolls
- Audit labor classification for each worker employed
- Review DIR pre-DAS 140/142 submissions
- Review CAC training fund contributions form CAC-2
- Review DIR Fringe Benefits Statement PW-26
- Monitor DIR wage determinations
- Audit fringe benefits allowances
- Review DIR holiday payment requirements
- Audit DIR travel & subsistence requirements
- Caltrans Labor Compliance
- County of Sacramento Labor Compliance
- City of Los Angeles Labor Compliance
- Los Angeles Unified School District Labor Compliance
- Federal Davis-Bacon Project Monitoring
- Federal DBE Implementation & Review
- Federal FAA AIP Goal Setting
- DIR & Davis-Bacon Training
- DIR Civil Wage Penalty Review
- Local-Hire Review (e.g., San Francisco)
- Skilled and Trained Workforce
Give us a call to discuss your labor compliance requirements.
This email is intended for general information purposes only and should not be construed as legal advice
or legal opinions on any specific facts or circumstances.