2/13/2024

How NYC Landlords Comply with Local Law 97




NYC Tackles Climate Change with Local Law 97: A Balancing Act for Building Owners

New York City aims for carbon neutrality by 2050, and Local Law 97 (LL97) is a crucial piece of the plan. This law mandates emissions reductions for large buildings, aiming for a 40% decrease by 2030 and net-zero by 2050. However, building owners face a complex balancing act: complying with the law while considering the cost of retrofits and the limitations of the existing grid.

Who's Affected?

Most buildings over 25,000 square feet must comply, including older structures with unique challenges.

The Timeline:

2024: Emissions limits take effect.

2025: Buildings must report their 2024 emissions and face fines for exceeding limits.

2030: Stricter emissions limits kick in.

Challenges and Opportunities:

Retrofitting older buildings: 

Bringing older structures up to code can be expensive and require significant investment.

Grid limitations: 

New York's aging grid may not yet fully support the increased demand from widespread electrification.

Benchmarking and planning: 

Carefully assess a building's energy use and develop a cost-effective compliance plan.

Energy efficiency upgrades: 

Consider measures like LED lighting and weatherization to reduce emissions.

Explore renewable energy: 

Investigate options like solar panels or on-site power generation but consider grid capacity limitations. How will the skyline change?

Nuclear power, which New York state has three remaining nuclear power plants: James A. Fitzpatrick, Ginna, and Nine Mile Point, Unit 2 The Indian Point nuclear plant closed in 2021. In 2022, nuclear power accounted for 21% of New York's utility-scale net generation, down from 34% in 2019. Public sentiment towards nuclear power is not positive, though it is a clean source.

Advocacy and collaboration: Engage with policymakers and utilities to advocate for grid upgrades and explore financial assistance programs.

Green buildings are not the same as LEED certified. This law measures emissions. Examine the sources of power to fix the problem. New York City relies upon twenty-four in the city power plants that run on natural gas and fuel oil.

The plants were built decades ago and 70% are over 50 years old. In addition to releasing GHGs that contribute to climate change, these plants release air pollutants that cause air quality and health issues in NYC communities.


The power sent to the plants comes from: fossil fuels, coal, hydro from Canada, nuclear, and small amounts of solar and wind.

Climate Mobilization Act is the theory behind this Local Law 97 (LL97). Buildings in NYC over 25000 square feet are subject to the law.  Covered buildings are subject to a yearly monetary penalty. Restrictions and penalties increase into the future.

May 1st, 2025, covered buildings must submit a report showing their GHG emissions for the prior calendar year (2024). This reporting is required annually, and it must be prepared by a registered professional. Buildings that don't submit an annual report before May 1st or release over-limit Greenhouse Gases will be fined. This accounting and reporting require experts and employees to provide the facts in spread sheets. What department in the city is the expert to verify or inspect the statistics?

A huge industry of experts, engineers and contractors have popped up, there’s college classes in compliance to meet carbon emissions. The problem is the cost.

Lawmakers suggest owners comply by starting these steps:

Add solar panels as an energy source.

Solar panels on rooftops in Northeast Cities that don’t have sunlight 360 days a year isn’t a great solution. Also, solar has a shelf life, the glass wears down and fails will require maintenance, cleaning, and replacement. Huge glass panels on top of historic buildings reminds of the movies with King Kong bouncing on top. Wind turbines also are not efficient and require maintenance. Wind and solar parts fill up landfills and are never recycled.

Retrofitting HVAC systems 

Cost prohibitive unless the existing system is old/failing then bringing it up to code and to meet this standard makes total sense. Often this will mean a year of construction and disruption to tenants and income for ownership.

Switching building systems from gas to electric.

An old building that has a coal fired boiler to direct-fired gas heaters or boilers is going to cost millions of dollars to just change it out. These boilers use either natural gas or landfill gas. Boilers work by heating water in a vessel using gas, oil, or coal. The heated water is then sent through a system of radiators to provide indoor heating. 

Changing lighting fixtures to LED lighting. 

This sounds simple but the cost of one bulb is around six dollars vs incandescent at two. Phasing in new seems reasonable and prudent. Those still useful bulbs are not recyclable, can they be given to some source?

 

Installing energy-efficient windows

The GM building with its historic International Style of millions of windows and white Georgia marble is not going to be cheap to replace the windows. Since it’s an older construction we assume there is lead, asbestos, and materials that will increase the cost of replacement.

C-PACE loans – 

Many commercial loan covenants restrict second, third financing behind the first trust deed. A loan decreases the profitability and value of the building.

Tax credits

Huge companies that own 153000 square foot buildings like most corporations in America don’t pay federal income taxes, they have accountants and attorneys who make the bottom line zero. This may work for individual landlords.


Do the right thing

Building owners would love to put a plaque out front and have media press about being caring but they measure the cost.


Change is hard. Rents for commercial and office in NYC are NOT on an upward curve. The cost must be passed on to tenants.

Building new such as the Taipei 101 or the Shanghai Tower include planning for low emissions and greener use but retrofitting real estate is costly.

What solutions do you know? 

New York City landlords are not alone, it's rolling into a world wide pickle.








2/12/2024

Future For Fintech Bank Partnerships



Rent-A-Bank for Fintech's Future
Who is sailing the boat?


True Lender Laws and Fintech "Rent-a-Bank" Partnerships

The Office of the Comptroller of the Currency (OCC) issued the True Lender Rule in October 2020. The rule stated that a bank is a "true lender" if it meets one of two conditions:

·        The bank is named as the lender in the loan agreement on the date of origination.

·        The bank funds the loan.

In June 2021, the House passed a joint resolution to repeal the True Lender Rule by a vote of 218-208. The Senate passed the resolution by a vote of 52-47 on May 11, 2021. 

The Truth in Lending Act (TILA) applies to most types of consumer credit, including car loans, home mortgages, credit cards, and home equity line of credit. TILA does not tell banks how much interest they may charge or whether they must grant a consumer loan. 

 The relationship between True Lender laws and fintech or fin-tech lenders who "rent a bank" are complex.

True Lender Laws:

  • These are state or federal laws designed to identify the true lender in loan transactions involving partnerships between banks and non-bank lenders (fintechs).
  • The goal is to ensure proper regulation and consumer protection by applying relevant laws (like interest rate caps) to the entity with the true economic interest in the loan.
  • There are two main approaches:
    • Bright-line test: Identifies the "true lender" based on specific criteria, like who funds the loan or is named in the agreement. (e.g., OCC's 2020 "True Lender Rule")
    • Totality of the circumstances test: Considers various factors like funding source, risk distribution, and marketing to determine the true lender.
  • States like Connecticut, Illinois, and New Mexico have enacted their own True Lender laws, often targeting "rent-a-bank" models.

Fintech "Rent-a-Bank" Partnerships:

  • Fintechs partner with banks to offer loans under the bank's charter, allowing them to bypass certain regulations or offer higher interest rates in states where the fintech wouldn't be licensed.
  • The bank "rents" its charter but may not have substantial economic risk in the loan.

How True Lender Laws Impact "Rent-a-Bank" Models:

  • True Lender laws can challenge "rent-a-bank" arrangements by identifying the fintech as the true lender based on factors like:
    • Who markets and originates the loan?
    • Who retains most of the profit or risk?
    • Who controls loan servicing?
  • If the fintech is deemed the true lender, it might need to:
    • Obtain appropriate licenses in relevant states.
    • Comply with consumer protection laws like interest rate caps.
  • This can make "rent-a-bank" models less attractive for fintechs.

Current Landscape:

  • The OCC's "True Lender Rule" was vacated in 2022, creating uncertainty.
  • Several states are enacting their own True Lender laws, leading to a patchwork regulatory landscape.
  • The future of "rent-a-bank" models under these evolving laws remains uncertain.

True Lender laws aim to identify the true economic owner of a loan, potentially impacting fintechs that rely on "rent-a-bank" partnerships. As these laws develop, the landscape for both fintechs and consumers is likely to evolve. Will other states develop detailed regulation? I expect yes.


Some places to research and follow besides emailing your Senator or Congressperson:


National Conference of State Legislatures (NCSL): This organization tracks legislation across all states. Searching for keywords like "fintech," "rent-a-bank," "true lender," "disclosure," and "consumer protection" on their website.

  • State-Specific Legislative Websites: Every state has its own website where you can search for introduced bills and track their progress. I see about 80 bills in progress.
  • Industry News Sources: News outlets focusing on fintech and financial regulations might report on upcoming legislation with potential impacts on these companies.
  • Legal Alert Services: Some legal services offer alerts on specific topics like banking or consumer protection. They might highlight relevant legislation as it emerges.

 

Lending Club, Affirm, Stripe, BlueVine, Divvy, Gusto, Intuit, Veem, Kabbage, Coinbase, Upstart, Marlette, Rocket Loans, Upgrade, New Rez partner with Cross River BankAffirm also with Evolve Bank & Trust

Marqeta, VISA, Mastercard:  Evolve Bank & Trust 

 Stripe: also as some use more than one source depending on product Goldman Sachs

Upgrade, Robinhood, Monzo, Brex, Marqeta, Ramp, TeamPay, Marqueta, Cash App, Galileo, Zelle, Privacy lock link with Sutton Bank

Most of these relationships are fluid and changing. The consumer might not know who they can call or blame.

#BAAS

 

Rent-a-bank and fintech partnerships have not made promised profits for the banks. Twenty percent of banks participating saw a 5% or more increase in loan volume from partnerships, and half as many have realized at least a 5% gain in non-interest income. This is even when the bank created the product, underwrites to their own rules and doesn’t make exceptions.

Big box banks have not built new technology. Few know where to aim their research. AI apps can be set up in weeks, but what is the tool that is exactly going to patch into their system by API and what will be secure? Banks are still thinking about safety deposit boxes and walk in clients.

Rent-a-bank is not regulated in most states today. But as consumers report to the CFBP and their state regulators, expect this model to disappear in fines and laws.

Many fintech websites that fail to disclose the actual rate, the APR, the product qualifications… Many of them offer mortgage products without persons licensed in any state. 

The consumer clicks and signs up, enters bits of personal information that are not secure and open to hacking, then bingo just like a slot machine the digital money is approved. This isn’t going to end well. I'm not big on gambling. I believe pay day apps that charge a person with low income and fragile finances 36-40% is not going to last.

This is not legal advice. This is merely my opinion.

What do you think?

2/11/2024

California Proposition 19 Children Inheriting

 

California

Proposition 19, also known as the
Home Protection for Seniors, Severely Disabled, Families and Victims of
Wildfire or Natural Disasters Act, significantly changed how property
taxes are affected when children inherit property in California. Here's a breakdown of
the key changes:

Before
Proposition 19:

  • Children who inherited property from their parents could typically keep the parent's lower property tax base even if they didn't use the property as their primary residence. This benefited children who wanted to rent out the inherited property or use it for other purposes without facing a significant tax increase.

After
Proposition 19:

  • Children can only keep the parent's lower property tax base if they use the property as their primary residence within one year of inheriting it. This means living in the inherited property themselves as their main home.
  • If the child does not use the property as their primary residence, the property will be reassessed at its current market value, leading to a potentially significant property tax increase.

Additional
important points:

  • These changes only apply to property inherited on or after April 1, 2021. If a child inherited property before this date, the old rules may still apply depending on the specific circumstances.
  • There are some exceptions to the new rules, such as for children who are already living in the property with their parents or for properties severely damaged by natural disasters.

Overall
impact:

  • Proposition 19 aims to prevent inherited properties from being used for investment purposes while keeping property taxes low for families who continue to use them as their homes.
  • However, it can create difficulties for children who inherit property but cannot or do not want to live in it themselves.
Allows transfers of a family home or family farm between parents and their children without causing a change in ownership for property tax purposes. 

It is an exclusion from change in ownership. 

Allows transferee to retain the taxable value of the transferor. “Taxable value” means the base year value plus inflationary adjustments, commonly referred to as the factored base year value. (Note: In cases where the transferor died, the date of death is considered the date of transfer.) Applies to a purchase or transfer of a family home between parents and their children if the property continues as the family home of the transferee. 

The transferee must live in the home as their primary residence within one year of transfer and file for the homeowners’ or disabled veterans’ exemption within one year of transfer to qualify for the exclusion. •

There is a limit to the value that can be excluded for a family home or each legal parcel of a family farm. The value limit is equal to the property’s taxable value (factored base year value) at time of transfer plus $1 million. If the market value exceeds this limit, the difference is added to the taxable value. (Note: The $1 million allowance will be adjusted annually by the State Board of Equalization (BOE) beginning in 2023.)

It's
important to note that this is a simplified explanation and the specific rules
can be complex.
If you have questions about how Proposition 19 might affect your situation, it's best to consult
with a tax professional or your local county assessor's office.

 





Philippians 4:13 ,
 "I can do all things through him who gives me strength". 






2/09/2024

Are you A Real Estate Professional defined by the IRS?
























Why would someone want the tax advantage to qualify as a real estate professional?

And how to keep track of 750 hours actively working a year to meet the second of two criteria (IRC Sec. 469(c)(7)(B):

Qualifying as a real estate professional (REP) under IRC Sec. 469(c)(7)(B) can offer several tax advantages for taxpayers who own and actively manage rental properties. Here are some of the key benefits:

1. Deducting rental losses against non-passive income: Typically, rental property losses are considered "passive" income and can only be used to offset passive gains (like other rental income) or up to $25,000 of non-passive income ($12,500 if married filing separately). However, if you qualify as a REP, your rental activities become "active" and you can deduct losses from them against any type of income, including your salary, wages, or self-employment income. This can significantly reduce your overall taxable income.

2. Avoiding the Net Investment Income Tax (NIIT): The NIIT is a 3.8% tax on certain net investment income, including some rental income, for high-income taxpayers. But if you qualify as a REP, your rental income is exempt from the NIIT.

Net Investment Income Tax (NIIT): Explained with Examples

The Net Investment Income Tax (NIIT) is a 3.8% tax levied on certain types of investment income earned by individuals, estates, and trusts above specific income thresholds. Here's a breakdown of the key points:

Who pays NIIT?

  • Individuals: Single filers with modified adjusted gross income (MAGI) exceeding $200,000, married couples filing jointly with MAGI exceeding $250,000, and married couples filing separately with MAGI exceeding $125,000 are subject to NIIT.
  • Estates and Trusts: Estates and trusts with taxable income exceeding $25,000 also pay NIIT.

What income is subject to NIIT?

  • Net Investment Income: This includes interest, dividends, capital gains (net of losses), passive income from partnerships and S corporations, royalties, rental real estate income (unless you qualify as a real estate professional, see below), and income from non-qualified annuities.
  • Important exclusions: Gains from the sale of your primary residence, qualified retirement distributions, and some other types of income are not subject to NIIT.

How is NIIT calculated?

NIIT is applied at a rate of 3.8% to the lesser of:

  • Net investment income: The total amount of your investment income as mentioned above.
  • Excess MAGI: Is the amount your MAGI exceeds the income threshold for your filing status.

Examples:

Example 1: Sarah, a single taxpayer, has a MAGI of $220,000 and $40,000 in net investment income. Since her MAGI exceeds the threshold of $200,000 by $20,000, she will pay NIIT on $20,000, resulting in a tax of $760 (20,000 x 3.8%).

Example 2: John and Mary, a married couple filing jointly, have a MAGI of $280,000 and $60,000 in net investment income. Their MAGI exceeds the threshold of $250,000 by $30,000. However, the lesser amount for NIIT calculation is their net investment income of $60,000. Therefore, they will pay NIIT of $2,280 (60,000 x 3.8%).

Real Estate Professionals and NIIT:

If you qualify as a Real Estate Professional (REP) under specific IRS criteria, your rental income is not considered passive and is therefore exempt from NIIT. This can be a significant tax advantage for real estate investors who actively manage their properties.

 

3. Deducting qualified business expenses: As a REP, you can deduct all ordinary and necessary business expenses related to your rental properties, such as repairs, maintenance, advertising, property management fees, and travel expenses. This can further reduce your taxable income.

4. Using the home office deduction: If you use a portion of your home exclusively and regularly as your principal place of business for your real estate activities, you may be able to deduct a portion of your home office expenses.

Here are the two key criteria you must meet to qualify as a real estate professional under IRC Sec. 469(c)(7)(B):

  • Active participation: You must spend more than 750 hours during the tax year participating in real estate activities (either personally or through employees).
  • Material participation: Your real estate activities must make up more than 50% of your total personal services performed during the tax year (or at least 100 hours if that's more than 500 hours).

It's important to note that qualifying as a REP can also have some drawbacks. For example, you may be subject to self-employment tax on your rental income, and you won't be able to claim the standard deduction if you itemize your deductions. You need to have a pencil with your last year’s IRS return and add up all the differences before you embark on this plan. Measure if it helps and if you really spend 750+ hours or nineteen weeks of full-time work. Material participation in income-producing activities is defined as regular, continuous, and substantial. Income-producing actions, in which the taxpayer materially participates, are active income or loss. You are on the phone, meeting contractors at the site, checking on repairs, researching cost savings…

A “real estate professional” to meet this bar, a taxpayer must meet the following two criteria (IRC Sec. 469(c)(7)(B):

1.   More than one-half of the personal services performed in all trades or businesses by the taxpayer during such taxable year are performed in real property trades or businesses in which the taxpayer materially participates,

2.   Such taxpayer performs more than 750 hours of services during the tax year in real property trades or businesses in which the taxpayer participates.

You must also meet material participation requirements for each rental (or group; the activity). 

For couples married filing jointly, one spouse must achieve both no.1 and no. 2 on their own

Size of your rental portfolio matter? In Smith v. Commissioner, T.C. Summary Opinion 2014-112, the taxpayer was a 63-year old disabled veteran. He had no other job due to being disabled and made himself available 24/7 to take care of his one three-unit property. The Court agreed that he qualified as a real estate professional even though he only had one property.

Having a property management business or being a real estate agent may help you qualify for Real Estate Professional Status (REPS) but it isn't a requirement.

Just create a log of the hours spent managing the properties.

The two requirements to claim real estate professional status are
1) Spend 750 on real estate related activities
2) Spend more time on real estate than a W-2 or a business.

There is no requirement about being an employee and payroll compensation.

 

I am not a tax professional and this is not tax advice