Category: Real Estate

The Limits of Deference to Agency Interpretations Under Maine Law

Earlier this month, the Maine Law Court issued its decision in Cassidy Holdings, LLC v. Aroostook County Commissioners, holding that, in a municipality without a board of assessment review, a taxpayer whose nonresidential property is valued at $1 million or more has the option to appeal an assessment either to the county commissioners or to the State Board of Property Tax Review. The decision has been described by my excellent colleagues, Jon Block and Olga Goldberg.  For purposes of this blog, it is noteworthy that that Cassidy Holdings took up an issue of broad application: the extent of deference owed to changing agency interpretations of a state law.

In Cassidy Holdings, the county commissioners cited a Tax Bulletin issued by Maine Revenue Services as support for their statutory interpretation argument.  The interpretive guidance provided by the Maine Revenue Services, however, had changed over time.  Initially, the agency had taken the position that appeals could go either to the county commissioners or the state board; later, without explanation, the agency changed its guidance to state that appeals should be taken to the state board.  This change raised the question whether the agency’s statutory interpretation should be granted judicial deference.

The Law Court did not have to resolve this issue, because it reached its conclusion based on the plain and unambiguous meaning of the statutory language.  Nevertheless, the Court found this issue to be of sufficient importance to address in a lengthy footnote.  While acknowledging that an “agency is free to change its mind in its interpretation of a statute,” Justice Connors, writing for the Court, made clear that Maine courts should not give deference to an agency interpretation when the agency has taken a new position without reasoned explanation.  For deference to be owed,

the agency must acknowledge that it is making a change, explain why, and give due consideration to the serious reliance interests on the old policy.

The Court cited numerous federal authorities in support of its conclusion that an agency must explain its change in position.

This footnote is notable on several levels.  First, although this issue had been addressed by federal courts, the Law Court had not previously opined on this particular limitation to Chevron-style judicial deference to agency interpretations of state law.  This limitation promises to have application in a wide variety of cases.  Second, the Law Court’s articulation of this limitation on Chevron­-style deference is a reminder of the unusual standing of that doctrine under Maine law.  As previously discussed on this blog, the Law Court has never addressed how the federal Chevron doctrine of judicial deference to agency interpretations of state law relates to Maine’s strict separation of powers doctrine.  That issue promises to come into stark relief early next year, when the Supreme Court will consider a pair of cases challenging the Chevron doctrine.  Given the Law Court’s recent emphasis on the primacy doctrine, together with any potential changes to the Chevron doctrine at the federal level, the Court may well confront additional issues relating to the application of Chevron deference in the near future.

©2023 Pierce Atwood LLP. All rights reserved.
For more news on Maine property taxes, visit the NLR Real Estate section.

Mo Money, Mo Problems? No Biggie for a Homeowner’s Association, Right?

Was your community association lucky enough to come in under budget last year?

On the surface, this might appear to be a bonus, but if not handled properly, it can quickly turn into an unexpected tax burden.

Taxation of Community Associations

 

Almost all community associations in North Carolina are formed as non-profit corporations, which are taxed as corporations. This means community associations should file an IRS Form 1120 (“U.S. Corporate Income Tax Return”) at the federal level. However, a community association may elect to be taxed as a “homeowners association” under Section 528 of the Internal Revenue Code of 1986, as amended (“Code”), and file a Form 1120-H (“U.S. Income Tax Return for Homeowners Associations”).  Oftentimes, a community association’s articles of incorporation, bylaws, or declaration will require that the association make this election.  If your community association chooses to file a Form 1120-H, it will be taxed at a 30% federal income tax rate on its “homeowners association income.” In addition, the election means that the association is not eligible to avoid tax on excess income.  However, the good news is that “homeowner association income” does not include membership dues, fees, and assessments.

Taxation as a Regular Corporation

 

A community association that does not elect to be taxed as a Code Section 528 homeowners association (and file a Form 1120-H) is taxed as a regular corporation subject to standard federal and state income taxes.  Under these standard tax rules, taxable gross income includes “all income from whatever source derived.”  Code Section 61.  But in the case of membership funds paid to community associations, the funds are viewed not necessarily as income but as monies held by an agent (the community association) to pay expenses for its principal (the members or owners of the community association).  For example, Revenue Ruling 75-370 found that condominium owner assessments are not treated as taxable income to the condominium association “since the funds are received by the community association for the unit owners to be used solely for the benefit of the unit owners.”

Handling Excess Assessments

 

Where a community association has received assessments from its members during the year in excess of its budgeted expenses, the Internal Revenue Service (“IRS”) determined, in Revenue Ruling 70-604, that the excess amounts are not taxable income to the association itself where the members vote at the end of the year either to: (1) apply excess assessments to their future assessments; or (2) rebate the excess amounts back to the members.  The IRS made this key ruling with respect to excess assessments received by a condominium management corporation. In its ruling, the IRS noted that the stockholder-owners of the condominium association held a meeting each year at which they decided what to do with any excess assessments not actually used for association expenses.  Your community association’s membership will need to do the same to take advantage of this tax exemption—take a vote (either in person or by written ballot) before the association files its Form 1120.

After issuing this ruling, the IRS clarified, in several informational letters, that the ruling did not mean that condominium and homeowners associations could retain excess assessments from year to year in a working capital reserve without recognizing the amounts as taxable income.  Accordingly, your community association may not apply excess assessments to its reserve account.  It must either: (1) return the excess assessments to the membership or (2) apply the excess assessments to the next fiscal year, thereby reducing the subsequent year’s annual assessment.

Authority of the Community Association Board of Directors

 

Under the North Carolina Planned Community Act and the North Carolina Condominium Act, the board of directors has the authority, not the members, to decide if excess funds will be returned to the members, used for reserves, or used to offset assessments for the following year.  If the board of directors does decide the funds will be used to offset future assessments the, the members should vote to take advantage of the exemption.

Thus, both federal and state law authorizes a community association to avoid excess assessments by returning such excess to its members or by applying such excess to the subsequent year’s budget.  However, both of these Acts vest the financial affairs of a community association in the association’s board of directors, not the members.  Accordingly, if your community association comes in under budget for any tax year, we recommend that your community association’s board of directors include with its annual membership minutes an action item for the members to vote upon adopting Revenue Ruling 70-604 to avoid paying taxes on any excess assessments.

Summary of Steps to Avoid Federal Income Tax

To sum things up, your community association can avoid federal income tax on any excess assessments it has at the end of the fiscal year if:

  • it files a regular IRS Form 1120;
  • its members take a vote each year to apply the excess towards next year’s operating budget;
  • the vote is either in person or via written ballot at the annual membership meeting before the community association’s tax return is filed.

 

© 2023 Ward and Smith, P.A.. All Rights Reserved.
Article by : Matthew A. Jones of Ward and Smith, P.A.
Read more real estate news on the National Law Review.

Biden Administration Revitalizes and Advances the Federal Government’s Commitment to Environmental Justice

On April 21, 2023, the eve of Earth Day, President Biden continued his Administration’s spotlight on environmental justice issues by signing Executive Order 14096, entitled “Revitalizing Our Nation’s Commitment to Environmental Justice for All.”

This Executive Order prioritizes and expands environmental justice concepts first introduced in President Clinton’s 1994 Executive Order 12898. The 1994 Order directed federal agencies to develop environmental justice strategies to address the disproportionately high and adverse human health or environmental effects of federal programs on minority and low-income populations.

One of President Biden’s early actions [covered here], Executive Order 14008, introduced the whole-of-government approach for all executive branch agencies to address climate change, environmental justice, and civil rights. It created the White House Environmental Justice Interagency Council, comprising of 15 federal agencies, including the United States Environmental Protection Agency (“EPA”) and the Department of Justice. Biden’s new Executive Order expands the whole-of-government approach by: (1) adding more agencies to the Environmental Justice Interagency Council and (2) establishing a new White House Office of Environmental Justice within the White House Council on Environmental Quality (“CEQ”). The new Office of Environmental Justice will be led by a Federal Chief Environmental Justice Officer and will coordinate the implementation of environmental justice policies across the federal government.

This new Executive Order emphasizes action over aspiration by directing federal agencies to “address and prevent disproportionate and adverse environmental health and impacts on communities.” It charges federal agencies with assessing their environmental justice efforts and developing, implementing, and periodically updating an environmental justice strategic plan. These new Environmental Justice Strategic Plans and Assessments are to be submitted to the CEQ and made public regularly, including through an Environmental Justice Scorecard, a new government-wide assessment of each federal agency’s efforts to advance environmental justice.

Specifically, defining “environmental justice” is one strategy to make concrete what federal agency efforts will address. Under the Executive Order, “environmental justice” means “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people: (i) are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and (ii) have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.” This definition adds “Tribal affiliation” and “disability” to the protected categories and expands the scope of effects, risks, and hazards to be protected against. The Fact Sheet accompanying the Executive Order explains that the definition’s use of the phrase “disproportionate and adverse” is a simpler, modernized equivalent of the phrase “disproportionately high and adverse” originally used in Executive Order 12898. Whether this change in language from “disproportionately high” to “disproportionate” will affect agency decision-making is something to watch for in the future.

As part of the government-wide mission to achieve environmental justice, the Executive Order explicitly directs each agency to address and prevent the cumulative impacts of pollution and other burdens like climate change, including carrying out environmental reviews under the National Environmental Policy Act (“NEPA”), by:

  • Analyzing direct, indirect, and cumulative effects of federal actions on communities with environmental justice concerns;
  • Considering the best available science and information on any disparate health effects (including risks) arising from exposure to pollution and other environmental hazards, such as information related to the race, national origin, socioeconomic status, age, disability, and sex of the individuals exposed; and,
  • Providing opportunities for early and meaningful involvement in the environmental review process by communities with environmental justice concerns potentially affected by a proposed action, including when establishing or revising agency procedures under NEPA.
    The Executive Order also emphasizes transparency by directing agencies to ensure that the public, including members of communities with environmental justice concerns, has adequate access to information on federal activities. These activities include planning, regulatory actions, implementation, permitting, compliance, and enforcement related to human health or the environment when required under the Freedom of Information Act, the Clean Air Act, the Clean Water Act, the Emergency Planning and Community Right-to-Know Act, and any other environmental statutes with public information provisions.

CEQ is expected to issue interim guidance by the end of the year and more long-term guidance by the end of 2024 as to implementing the Executive Order’s directives. It is too early to know whether any directives will go through rulemaking under the Administrative Procedure Act. But with a presidential election looming and ongoing budget negotiations between the White House and Congress that propose modest cuts to NEPA as part of permitting reform, CEQ’s efforts may be limited to guidance for now.

© 2023 Ward and Smith, P.A.. All Rights Reserved.

For more environmental legal, news, visit the National Law Review here.

Deed Warranties and Why They Should Matter To You

You’re negotiating to buy a piece of real estate and your attorney tells you that the seller is proposing to give you a “Special Warranty Deed” in exchange for all of the money you will pay.

Special Warranty Deed – that sounds nice, doesn’t it?  But what does that term really mean?

In order to appreciate what a Special Warranty Deed will mean to you as a buyer, it will help to know a little about the different types of deeds commonly used in North Carolina.  The three most common types of deeds are:

  • General Warranty Deeds;

  • Limited Warranty Deeds; and,

  • Non-Warranty Deeds.

General Warranty Deeds

In a General Warranty Deed, the seller usually gives four warranties regarding the land to the buyer.  The seller warrants to the buyer that:

  • The seller has the right to convey the real estate.

  • The seller will defend the title to the real estate against the claims of all persons.

  • The seller is “seized of the fee” in the real estate. “Seized of the fee” basically means that the seller warrants that the seller owns all of the rights in the real estate except as specifically stated in the deed.

  • There are no encumbrances against the real estate that are not listed in the deed. An encumbrance could be a simple (even beneficial) easement that allows the power company to install a power line across the property or a multi-million dollar judgment lien against the property.  An encumbrance could be just about anything you might imagine that impacts (usually negatively) the use or value of the property, including restrictive (sometimes called “protective”) covenants that control how the real estate may be used.

Limited Warranty Deeds

However, in a Limited Warranty Deed, the seller usually gives only two warranties.  The seller usually warrants to the buyer that:

  • The seller personally has not done anything to the title that the seller received. This is a much more limited warranty than the broad warranty found in a General Warranty Deed.  As explained above, in a General Warranty Deed the seller warrants that the seller not only owns the property, but also has all of the rights in the property except as specifically stated in the deed.

  • The seller will defend the title to the property against claims based on the prior actions of the seller, but no one else. This also is a much more restrictive warranty than that found in the General Warranty Deed.  As noted above, in a General Warranty Deed the seller warrants that the seller will defend the title against the claims from all parties except as specifically stated in the deed.

Limited Warranty Deeds go by various names, including “Special Warranty Deeds.”  Sometimes Limited Warranty Deeds are named after the grantor, such as a “Trustee’s Deed” or an “Executor’s Deed,” but they all share the same characteristic in that they warrant only against the grantor’s own acts.

Non-Warranty Deeds

As one might imagine, the seller gives no warranties in a Non-Warranty Deed.  A Non-Warranty Deed is sometimes called a “Quitclaim Deed.”  Although lawyers quibble over whether there is a difference between a Non-Warranty Deed (which actually purports to convey something) and a Quitclaim Deed (which only releases any claims the grantor has in the land), they all share the same characteristic that they contain no warranty, even against the grantor’s own acts.  In a Non‑Warranty or Quitclaim Deed, the seller merely is giving the buyer whatever rights, if any, that the seller has in the property and the seller makes no warranties of any nature about the seller’s rights in the property.

But What About The Special Warranty Deed?

A Special Warranty Deed is just a Limited Warranty Deed with an appealing name.

But what does it matter if you get a Limited or Special Warranty Deed when you buy a piece of property as opposed to another type of deed?  As long as no title problems come up, it probably will not make any difference whether the seller gives you a General Warranty Deed, a Limited Warranty Deed, or a Non-Warranty Deed.  However, if a title problem should arise, the deed warranties may make a big difference to you.

Let’s take a quick look at what would occur under the different deed warranties when a simple title problem arises.  Let’s assume that you purchased your office building in 2021 from Sam Seller.  Being familiar with the area and Sam Seller, you know that Sam purchased the building from the developer in 2020.  You also know that the developer went out of business at the end of 2020.  When you purchased the property in 2021, everything went smoothly.  Everything was still going well until this past weekend when you received a notice from the county tax office indicating that the 2018 property tax bill on your office building had not been paid and the county has a lien on your property for several thousands of dollars.  Yikes!  As you scramble to locate your purchase file, let’s consider how the different deed warranties could affect your attitude once you actually find your file.

If you had received a General Warranty Deed from Sam Seller, then Sam would have warranted to you that there were no encumbrances against the property that were not listed in the deed.  So unless the deed specifically indicated that the property was conveyed to you “subject to” the 2018 unpaid taxes, you should be able to sleep restfully knowing that Sam owes you the money for the unpaid taxes.

If you had received a Limited or Special Warranty Deed though, your sleep will not be as restful.  In a Limited Warranty Deed, Sam would have warranted simply that he had not done anything to encumber or otherwise harm the title to the property while he owned the property.  Unfortunately, Sam Seller did not own the property in 2018 when the 2018 taxes became a lien on the property or in January 2019 when they became past due.  As you will recall, Sam bought the property in 2020.  Consequently, the warranties found in a Limited Warranty Deed from Sam would not cover the unpaid 2018 taxes, and Sam would not be liable to you for the unpaid taxes.

Of course, if you had received a Non-Warranty or Quitclaim Deed from Sam Seller, then Sam also would not be liable to you for the unpaid taxes.  As mentioned above, under a Non‑Warranty or Quitclaim Deed, Sam would not have warranted anything to you about the property.  You simply would have received whatever rights (if any) that Sam had in the property at that time, and Sam’s rights were subject to the lien of the 2018 taxes.

What To Do If Offered A Special Warranty Deed

So, how do you protect yourself from issues that may arise when you will receive a Special Warranty Deed?  Here are three things to do the next time you decide to buy property:

  • Regardless of the type of deed to be given at closing, get your attorney involved in the transaction before you sign a contract. Even if the contract provides for a General Warranty Deed, other language in the contract could reduce the general warranties.  For example, contract language that indicates the property will be conveyed by a General Warranty Deed “subject to all matters of record” sounds reasonable, but the “subject to” language essentially negates the general warranties because most matters encumbering title to the property will be “of record.”

  • Have your attorney conduct a title examination on the property to discover any encumbrances or title problems before you purchase the property. Even if there are no title problems, this is where your attorney will discover those “little” things that could become big problems if you did not know about them prior to purchasing the property.  For example, this is where your attorney would discover that the large open area behind the office building is subject to an easement in favor of the owner of the adjoining property that would prevent you from expanding the building into that area.

  • Have your attorney obtain title insurance for you. Title insurance will give you additional protection from unknown title risks that could raise their ugly heads in the future.  Although title insurance does not guarantee that you will not have a title problem, it does provide insurance to help pay to correct the problem or to compensate you if the problem cannot be corrected.

Conclusion

Understanding deed warranties will help you to better protect yourself from title problems and possible litigation in the future.  Special and Limited Warranty Deeds really aren’t that special and might not grant you the protections you think.  Even still, other deeds may not contain any protection for a buyer at all.

© 2022 Ward and Smith, P.A.. All Rights Reserved.
For more Real Estate Legal News, click here to visit the National Law Review.

More Places, Less Spaces: California is Driving Down Development Costs

In an effort to decrease the skyrocketing development costs and reduce greenhouse gas emissions, Assembly Bill 2097 (AB 2097) aims to eliminate a key obstacle for new developments: parking. More specifically, starting on January 1, 2023, this law prohibits public agencies from imposing minimum automobile parking requirements for residential, commercial and other development projects if the project is located within a 1/2-mile of a “High-Quality Transit Corridor”[1] or a “Major Transit Stop.”[2]

Prior to the enactment of AB 2097, cities and counties retained the authority to impose a minimum number of parking spaces required for new developments. This condition is typically the result of a calculation found in the city or county’s zoning code, and is usually determined based on the use or type of project being developed, regardless of project specifics. Oftentimes, the use of a universal calculation results in excess parking. For example, a new restaurant may be required to provide 4 parking spaces for every 100 square feet of use even if the restaurant concept does not necessitate a large number of parking spaces or if the restaurant is in a pedestrian- or transit-friendly location. While California remains in the throes of a housing crisis, some areas within the state boast an oversupply of parking spaces. For example, Los Angeles County has 18.6 million parking spaces, which equates to almost 2 parking spaces for every 1 resident.[3] This statistic is similar in the Bay Area where there are 1.9 parking spaces for every 1 resident.[4]

Moreover, not only can a static calculation result in unnecessary parking (and blacktop), it can add untenable costs to new developments. For example, new residential developments are typically required to provide 1 to 2 parking spaces per unit. The requirement results in an additional cost of approximately $36,000 per unit.[5] As the cost to develop residential projects is at an all-time high,[6] builders are welcoming all efforts to reduce the cost and eliminate unnecessary development “standards.”

To avoid a complete free-for-all, under AB 2097, public agencies will still retain the ability to impose a minimum parking requirement, if, within 30 days of the receipt of a completed application, the public agency makes a written finding that not imposing a minimum automobile parking requirement would have a substantial negative impact. However, there are a number of exceptions to this caveat that wholly restrict public agencies from imposing a minimum parking condition. These exceptions include certain affordable housing projects or small residential housing projects.

For parking spaces that are voluntarily included in proposed project designs, public agencies may still require: (i) spaces for car share vehicles; (ii) parking spaces to be shared with the public; or (iii) for the project to charge for parking. Nothing in AB 2097 shall reduce or eliminate the requirement that new developments provide for the installation of electric vehicle supply equipment (i.e., EV-charging stations) or to provide parking spaces accessible to persons with disabilities.

AB 2097 is intended to give developers more flexibility and lower the costs associated with development, which will – hopefully – result in an influx of housing and the redevelopment of vacant buildings where it may not have been previously feasible to provide parking in a quantity necessary to meet a jurisdiction’s minimum requirements. By reducing the oversupply of parking, there is the expectation that the use of mass transit will increase, thereby reducing traffic, greenhouse emissions and air pollution.

Critics of AB 2097 are concerned that the elimination of parking requirements could actually weaken local efforts to provide more affordable housing as many public agencies offer reductions in parking requirements to incentivize developers to add on-site affordable housing units to the project.[7] There is also concern that, despite the decrease in availability, many residents will continue to own vehicles, which – ironically – will lead to increase parking demand and congestion.

Although there is a lot of speculation of AB 2097, many are hopeful that it is a step in the right direction when it comes to addressing California’s housing crisis. As Governor Gavin Newsom stated when he signed the bill: “Reducing housing costs for everyday Californians and eliminating emissions from cars: That’s what we call a win-win.”

FOOTNOTES

[1] “High-Quality Transit Corridor” means a corridor with a fixed-route bus service with service intervals no longer than fifteen minutes during peak commute hours.

[2] “Major Transit Stop” means a site containing an existing rail or bus rapid transit station, a ferry terminal served by bus or rail, or the intersection of two or more major bus routes with a frequency of fifteen minutes or less during peak commute periods.

[3] Aguiar-Curry, Cecilia. Assembly Committee on Local Government – AB 2097 (Friedman) – As Introduced February 14, 2022. (April 20, 2022. )

[4] Inventorying San Francisco Bay Area Parking Spaces: Technical Report Describing Objectives, Methods, and Results. Mineta Transportation Institute – San Jose State University. (February 2022.)

[5] Some estimates place the aveage cost of one residential unit at $1,000,000 in development costs. (The Costs of Affordable Housing Production: Insights from California’s 9% Low-Income Housing Tax Credit Program. Terner Center for Housing Innovation – UC Berkley. A Terner Center Report [March 2020].)

[6] Dillon, Liam and Posten, Ben. Affordable Housing in California Now Routinely Tops $1 Million per Apartment to Build. Los Angeles Times. (June 2, 2022.)

[7] California Daily News.

Article By Amanda S. Lee of Sheppard, Mullin, Richter & Hampton LLP

For more real estate legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

The Top 10 Do’s and Don’ts of Selling a Cell Lease

When you sell a cell lease, in addition to assigning the lease and rents to the purchaser, you also sell the purchaser the right to put communications antennas on your property for 50 years or more. Done properly, this can be very advantageous, but if done improperly, the right, coupled with its lengthy term, can be harmful, especially for valuable properties.

While the intricacies of such sales should be left to professionals (the sale documents are often 15-20 pages long to protect the property owner), here is a short list of items unique to cell lease sales which property owners should keep in mind. This list is based on years of experience helping clients sell over 100 leases.

  1. Sell the cell lease first if you will be selling the property with the lease. Recently, leases have sold for around 20 times annual revenues. Done properly, a lease sale will add dollar for dollar to the sales price of the property it’s on.
  2. Don’t use the documents from the purchaser without extensively revising them (we often toss them out and use our own documents). They are usually so overreaching that using them “as is” can reduce or destroy the value of the property with the lease.
  3. Include provisions protecting the future use, development and value of the property with the lease.
  4. Have a relocation provision so you can require the leased area to be moved to another location on the property if needed for the maintenance, repair or redevelopment of the property.

The following items are particularly important for areas where the leased space is on a building rather than for a tower on open land. Buildings are generally much more valuable than open land (so the potential harm from bad terms is greater), there often are two or more parcels being leased (equipment on the ground, antennas on the roof, cables in between) and property owners need to be specific on the rights being sold and retained.

  • Clearly describe, with engineering drawings if needed, the areas of the building the purchaser can use.
  • Spell out the types of communications uses the purchaser can conduct and the equipment it may place in these areas.
  • Also spell out the rights the building owner and tenants retain to use these same areas (as well as other parts of the building) for their antennas, HVAC, elevators, etc.
  • Describe the types of communications uses and radios that the building owner, residents and tenants have retained and do not violate the sale.
  • Attach engineering drawings showing the equipment currently on the building.
  • Require landlord approval of changes to the preceding and the reasons the approval can be withheld.

Article By John W. Pestle and Peter A. Schmidt of Varnum LLP

For more communications, media, and internet legal news, click here to visit the National Law Review.

© 2022 Varnum LLP

An Investment Worth Making: How Structural Changes to the EB-5 Program Can Ensure Real Estate Developers Build a Good Foundation for Their Capital Projects

The United States has made major changes to the rules governing its EB-5 program through the enactment of the EB-5 Reform and Integrity Act of 2022 (RIA). The RIA was a component of H.R. 2471—the Consolidated Appropriations Act, 2022—which President Biden signed into law on March 15, 2022. And while the RIA made many sweeping changes to the EB-5 landscape, including establishing an EB-5 Integrity Fund comprised of annual funds collected from regional centers to support auditing and fraud detection operations, two changes in particular are pertinent to developers funding capital investments. First, the RIA altered how developers calculate EB-5 job creation. Second, the RIA prioritizes the processing and adjudication of EB-5 investment in rural area projects, and it tweaked the incentives for high unemployment area and infrastructure projects. Paying careful attention to each of these two areas will enable developers to maximize the benefits afforded to it through the changes enacted by the RIA.

THE RIA MODIFIES JOB CREATION CALCULATIONS

New commercial enterprises under the EB-5 program must create full-time employment for no fewer than 10 United States citizens, United States nationals, or foreign nationals who are either permanent residents or otherwise lawfully authorized for employment in the United States. The RIA made three major changes to how regional centers measure job creation to meet this 10-employee threshold:

  • First, the RIA permits indirect job creation to account for only up to 90% of the initial job creation requirement. For example, if a developer invests in a small retail-residential complex that will eventually create 30 new jobs with the retail stores that will move into the shopping spaces, the developer could count only nine of those jobs toward the 10-employee threshold.
  • Second, the RIA permits jobs created by construction activity lasting less than two years to account for only up to 75% of the initial job creation requirement. The RIA does allow for these jobs to count for direct job creation, however, by multiplying the total number of jobs estimated to be created by the fraction of the two-year period the construction activity will last. For example, if construction on the small retail-residential complex will last only one year and create 100 new jobs, then the RIA would calculate 50 new jobs (100 total jobs multiplied by one-half (one year of a two-year period)) but the developer could count only 7.5 of those 50 jobs toward the 10-employee threshold.
  • Third, while prospective tenants occupying commercial real estate created or improved by the capital investments can count toward the job creation requirement, jobs that are already in existence but have been relocated do not. Therefore, if a restaurant is opening a new location in the small retail-residential complex, the developer could count toward those new jobs toward the job creation requirement. If the restaurant is just moving out of its current location into a space in the retail-residential complex, however, the developer could not count those jobs toward the job creation requirement.

THE RIA CREATES NEW EB-5 VISAS RESERVED FOR TARGETED EMPLOYMENT AREAS AND INFRASTRUCTURE PROJECTS

Under the previous regime, the U.S. government would set aside a minimum of 3,000 EB-5 visas for qualified immigrants who invested in targeted employment areas, which encompassed both rural areas and areas that experienced high unemployment. Now, the RIA requires the U.S. government to set aside 20% of the total number of available visas for qualified immigrants who invest in rural areas, another 10% for qualified immigrants who invest in high unemployment areas, and 2% for qualified immigrants who invest in infrastructure projects. Therefore, at a minimum, the RIA reserves nearly a third of all total EB-5 visas issued by the U.S. government for rural projects, high unemployment area projects, and infrastructure projects. Furthermore, and most significantly, the RIA provides that any of these reserved visas that are unused in the fiscal year will remain available in these categories for the next fiscal year.
The changes to the reserved visa structure create significant incentives for qualified immigrants to invest in rural, high unemployment area, and infrastructure projects. If, for example, the United States government calculates that it should issue 10,000 visas in Fiscal Year 1, then the RIA mandates reserving 2,000 visas for rural projects (20% of total), 1,000 for high unemployment area projects (10% of total), and 200 for infrastructure projects (2% of total). These numbers are significant when considering the RIA’s roll-over provision because it pushes projects in these categories to the front of the line for the green card process. If only 500 of the 20,000 visas for rural projects are used in Fiscal Year 1, then the 1,500 unused visas set aside for rural projects roll over to the next fiscal year. Therefore, if the United States government issues 10,000 new visas in Fiscal Year 2, then 3,500 visas will be reserved for rural projects in the new fiscal year (the 1,500 rollover visas from the previous year plus a new 20% of the total number of visas per the RIA), and the high unemployment area and infrastructure project reserved visas would have a new 1,000 (10% of total) and 200 (2% of total) visas in reserve, respectively.

The RIA changed the structures for investing in both targeted employment areas and non-targeted employment areas, however. The RIA raised the minimum investment amount for a targeted employment area by over 50%, increasing the sum from its previous level of US$500,000 to its new level of US$800,000. The RIA similarly raised the non-TEA, standard minimum investment amount from its previous level of US$1 million to now be US$1.05 million.  Additionally, the RIA modified the process for the creation of targeted employment areas: While under the previous regime, the state in which the targeted employment area would be located could send a letter in support of efforts to designate a targeted employment area, the post-RIA EB-5 regime now permits only U.S. Citizenship and Immigration Services to designate targeted employment areas.

IMPLICATIONS AND RECOMMENDATIONS

The new developments resulting from the RIA will have tangible effects on developers seeking to fund new capital investments. The percentages caps imposed on indirect job creation, relocated jobs, and other categories toward the job creation requirement will likely lengthen the amount of time spent on project creation and completion. These changes also likely should incentivize developers to focus their job creation metrics toward directly created jobs rather than through indirectly created ones. While these changes might increase the length of projects, the broadening of visa reserves through both the percentage caps and the creation of the rollover provisions will likely increase the number of projects in rural areas and high unemployment areas. Developers should carefully consider the composition of their job creation goals and calculate workforce sizes in line with these new requirements. Additionally, developers seeking to ensure they are able to succeed in obtaining visas for their desired employees by avoiding the typical backlog of visa applicants through the EB-5 program should consider investing in rural and high unemployment area projects to take advantage of the broadened application pool.

Article By Brian Graham, Adriana Reyes, and Gregory T. Lewis of K&L Gates

For more immigration legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates

Hurricane Coming? Know Your Insurance Policy

As we prepare for Hurricane Ian in Tampa Bay and throughout Florida, one important item on your checklist for both your personal and business hurricane preparation plan should be to be aware of your hurricane/windstorm coverage in your insurance policies. While we all hope to avoid major impact or damage from the storm, even minor damage may be covered under your insurance policy. However, the conditions of your insurance policy may require that you report claims prior to doing anything other than emergency repairs. As such, a review of your policies before the storm may not only be helpful to learn what damages are covered but may also avoid taking steps that compromise what would otherwise be covered claims.

Know Your Deductibles

Florida statutes protect homeowners from unexpectedly declining windstorm/hurricane coverage, but allow insurance companies to set a different (and usually higher) deductible for claims related to hurricanes. These deductibles can be as high as 10% of the policy limits for the property/dwelling coverages and may also apply to claims discovered in the days immediately after the hurricane. Knowing your deductible will allow you to gain a more accurate understanding of your potential claims following a hurricane.

For your commercial lines, you should be sure to review your policy to ensure you have windstorm coverage and again check to see if a higher deductible applies.

Whose Policy Applies and What Coverages Apply

If you are on an active construction site, you likely have a general liability policy. But these liability policies are unlikely to cover the more common losses caused by a windstorm or hurricane. Common hurricane claims are more likely to be covered under a builder’s risk policy. As you prepare your project site for the storm, you should determine who has purchased the builder’s risk insurance and review that policy to see what coverages are available in the event of a loss.

Depending on the terms of your builder’s risk policy, there may be coverage for soft costs such as delays, expedited construction costs, consultant costs and possibly even attorney’s fees. Knowing your coverages before a claim arises will ensure that you are able to receive the insurance benefits that were purchased.

Be Prepared to File a Claim

As many insurance policies require claims to be reported promptly after a loss and even before work is done to repair the loss, being prepared to file a claim before the storm hits will allow you to maximize your chance of recovery under the applicable insurance policies…it may also provide you with some peace of mind in a stressful situation. Good practices include identifying a point person with knowledge of the policy to inventory any potential damage and document the same with photographs, videos, and notes. Also, know who you need to report any claims to and what evidence or documentation is needed to report a claim. Know what types of damages will allow for emergency repairs and what claims need to be reported to the carrier before work can be started. And take pictures of your property before the storm hits so that you can show before and after pictures of the property.

While knowing your available insurance coverage is an important item in your hurricane preparations, the most important thing in any storm is to be safe and take all reasonable precautions to keep you, your loved ones, and those around you safe. From all of us at Hill Ward Henderson, we hope and pray that Hurricane Ian passes without major impact to our community.

For more insurance law news, click here to visit the National Law Review.

© 2007-2022 Hill Ward Henderson, All Rights Reserved

Estate Planning Considerations That Apply to Nearly Everyone

This article contains core information about the vital estate planning measures that almost all North Carolinians should have in place. 

Why You Need an Estate Plan

Estate planning is not just for affluent individuals.  While good estate planning can lead to desirable financial outcomes under the right circumstances, estate planning in its most basic form involves implementing the legal steps and directives that are necessary to ensure that your health and your assets are managed properly in the event of incapacity and death.

Everyone should consider:

  • Do you want to make sure that your family has the legal authority to direct and take part in your medical care if you become ill?
  • Do you care whether your assets will pass to your spouse, children, or other beneficiaries after your death?
  • Do you want to avoid a costly and uncertain court proceeding if you, your spouse, or your adult child becomes mentally incapacitated?
  • Do you have minor children or grandchildren, and specific desires about how they would be cared for in the event of your death?
  • Do you care about your finances and affairs becoming part of the public record when you die?

If your answer to any of the these questions is “yes,” then you likely need an estate plan.

Foundational Estate Planning Documentation

The following documents are the foundation of any good estate plan.

  • Last Will and Testament. A simple Will directs the disposition of a person’s assets and names someone to handle final affairs, in the event of death.  In the absence of a Last Will and Testament, the disposition of your assets may be controlled by state law, and the result may be much different from what you intended.
  • Revocable Trust. A revocable trust can help ensure that the management and disposition of your assets is more private and efficient during your lifetime and at death.
  • Durable Power of Attorney. A durable power of attorney typically names a spouse, adult child, or other individual(s) of your choosing to step in and handle your financial and legal affairs when you are unable due to incapacity or absence.
  • Health Care Power of Attorney. A health care power of attorney is a document that nominates a trusted person (usually a family member) to make health care decisions in the event of your incapacity.  Without this document, decisions about your medical treatment may be made by the attending physician or might involve petitioning the court for a guardianship – an expensive and cumbersome process.
  • Living Will. A living will addresses medical decisions and directives related to end-of-life care.
  • HIPAA Authorization. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) protects an adult’s private medical information from being released to third parties without the patient’s consent.  Without a valid HIPAA authorization on file, a doctor or medical provider legally cannot, and frequently will not, discuss the patient’s medical information with family members.

Ownership and Beneficiary Designations

An essential component to planning for death involves reviewing the way that your assets and accounts are structured.  Asset ownership and account-specific beneficiary designations can supersede and undermine even the most carefully-drafted estate planning documentation.  Unfortunately, these aspects are often overlooked, and unintended consequences ensue.  Having the advice of an attorney with significant experience in estate planning and administration is the best way to ensure that your assets and your estate plan will work hand in hand.

Changes in Circumstances

If you already have an estate plan in place, that’s great.  But in the vast majority of cases, an estate plan will need to be updated over the course of a person’s life.  If your estate plan no longer addresses your needs or accurately expresses your wishes, it’s time for an update.

The following are common reasons for updating one’s plan:

  • Children grow up and become able to manage a parent’s healthcare and estate matters.
  • Changes in financial circumstances.
  • Relocation to a new state.
  • Separation, divorce, or remarriage.
  • Changes to applicable law.
  • Birth, death, or marriage of a beneficiary.

Article By Peter B. von Stein of Ward and Smith, P.A.

For more estates and trusts legal news, click here to visit the National Law Review.

© 2022 Ward and Smith, P.A.. All Rights Reserved.

After EPA Rule Changes, Which ASTM Phase I ESA Standard Should You Use?

On November 1, 2021, ASTM International released its revised standard for Phase I Environmental Site Assessments. On March 14, 2022, the U.S. Environmental Protection Agency (the “EPA”) published a Direct Final Rule that confirmed the new ASTM standard, ASTM E1527-21, could be used to satisfy the EPA’s All Appropriate Inquiry (“AAI”) regulations. That, in turn, would mean that satisfying the ASTM E1527-21 standard could help a potential buyer of contaminated property satisfy some of the EPA’s requirements to qualify as a Bona Fide Prospective Purchaser, which may lead to being protected from liability under the federal Superfund statute.

However, on May 2, 2022, EPA withdrew the Final Rule it had published on March 14, 2022, and indicated it would address the comments it received concerning the previously Final Rule in a subsequent final action.

Why the change and, more importantly, which ASTM standard should a potential purchaser of contaminated property use when having a Phase I Site Assessment prepared?

EPA withdrew its Direct Final Rule in response to the negative comments it received concerning that rule. EPA had planned to allow both the November 2021 ASTM standard and its predecessor from 2013 (the ASTM E1527-13 standard) to be used to satisfy certain AAI requirements. Those commenting said that approach would lead to confusion in the marketplace, and would allow reports that did not meet the ASTM E1527-21 standard to be considered adequate, even though the 2021 ASTM standard represented what the real estate and environmental community had determined to be good commercial and customary practice. In other words, because the 2021 standard required a more rigorous approach to the relevant environmental due diligence work needed to prepare a Phase I Environmental Site Assessment, EPA’s approach would have meant that less thorough reports could have been deemed sufficient.  As noted in the comment letter submitted to the EPA by the Environmental Bankers Association, “ASTM E1527-21 includes important updates that will reduce the risk of Users [of the ESA report] failing to identify conditions indicative of hazardous substance releases, potentially jeopardizing landowner [and prospective purchaser] liability protections to [potential] CERCLA [liability].” All of that makes sense: the better the environmental due diligence, the less risk of unpleasant surprises later.

But, where does that leave potential purchasers of contaminated real estate? Should they have their consultants prepare their Phase I Site Assessment reports based on the 2021 ASTM standard, or its 2013 predecessor, or both?

Contaminated real estate buyers, and any other parties involved in the transaction, such as lenders and equity investors, should require their environmental consultants to prepare their Phase I Environmental Site Assessment in conformance with the ASTM E1527-13 standard, because that is the ASTM standard that is currently referenced in EPA’s AAI regulations. It is necessary to do so, at least for now, in order to be able to qualify for Bona Fide Prospective Purchaser protection from CERCLA liability.

Those parties should also consider having their environmental consultants prepare the same Phase I Environmental Site Assessment in conformance with the updated ATSM E1527-21 standard. While some additional cost may be involved, nonetheless it may be worthwhile in order to meet what ASTM sees as the current standard of practice regarding these reports.

Another important consideration in the preparation of these reports is whether additional issues that are not formally included in the scope of either the ASTM E1527-13 or the ASTM E1527-21 standard should be addressed. For example, as noted in an appendix to the E1527-21 standard, petroleum products are within the scope of the practice “because they are of concern with respect to commercial real estate, and current custom and usage is to include an inquiry into the [past or present] presence of petroleum products when doing an environmental site assessment of commercial real estate.” That is so even though petroleum products generally do not lead to liability under CERCLA.

The non-scope issues appendix to the ASTM E1527-21 standard also addresses “substances not defined as hazardous substances” and does a good job addressing why a user of an ASTM-compliant report should at least consider whether to include certain emerging contaminants such as per- and polyfluoroalkyl substances, also known as PFAS, within its scope. The point is to think about whether to evaluate potential environmental liability for PFAS on a case-by-case basis in light of state law considerations, even though PFAS compounds have not yet been designated “hazardous substances” under CERCLA.

EPA’s recent rule-making activities have not provided clear guidance for potential purchasers of contaminated property regarding which ASTM standard should be used in preparing environmental site assessment reports that comply with EPA’s AAI regulations. At the moment, what seems to make the most sense is to have these reports prepared so that they comply with the ASTM E1527-13 standard and to consider whether to comply with the E1527-21 standard in addition. The user should also carefully evaluate whether certain considerations, such as potential PFAS contamination, should be included within the scope of the report.

Article By Ned Abelson and Justin Rheingold of Goulston & Storrs

For more environmental legal news, click here to visit the National Law Review.

2022 Goulston & Storrs PC.