Affordable Housing

Affordable Housing

Overview

Cox, Castle & Nicholson is a nationally recognized leader in the area of affordable housing focused on representing developers in all aspects of the acquisition, disposition, financing, development, and operation of affordable housing projects, including major mixed-income and mixed-use developments. We have served as lead counsel on hundreds of affordable, mixed-income, and mixed-use housing projects valued at over several billion dollars in more than thirty states. Our knowledge of market terms and deal structures, our close relationships with key industry players, and our practical, problem-solving approach allow us to help our clients achieve their objectives in a cost-effective, streamlined fashion.

Utilizing our cross-disciplinary experience in real estate, tax, municipal finance, securities, construction, land use, and governmental law, we structure, negotiate and document, among other things:

  • joint ventures between developers (for-profit and nonprofit) and investors
  • private activity bond transactions among issuing authorities, developers, lenders, credit enhancers, and investors
  • regulatory agreements between developers and governmental entities
  • intercreditor arrangements among senior and subordinate lenders
  • disposition and development agreements between developers and governmental entities   

Deal Structuring

Successful low-income and mixed-income restricted projects often combine low-income housing tax credits under Internal Revenue Code Section 42, tax-exempt private activity bonds, other state and federal mortgage loan programs, property tax exemptions, ground lease structures, non-profit contributions, and seller financing. Our clients rely on our extensive experience in engineering, developing, troubleshooting, and implementing complex financial structures that combine some or all of these financing sources in a single transaction. 

We offer experience and insight on critical deal points that arise in low-income and mixed-income deals, such as:  

  • structuring and implementing year 15 tax credit investor exits
  • managing California redevelopment agency dissolution issues
  • layering California Proposition 1C and other grant and loan proceeds into a tax credit financed project
  • accessing debt and equity sources on affordable restricted projects without triggering California's prevailing wage requirement
  • managing exposure to liability under completion, repayment, and performance guaranties

We also are experts in structuring year 15 tax credit resyndication transactions to avoid related party limitations under Internal Revenue Code Section 42.

Tax Counseling

Our tax attorneys are experienced in all federal and state tax aspects of affordable housing development, with a special emphasis on taxation of partnerships and partners, nonprofit organizations, low income housing tax credits, tax-exempt bond rules, and transfer taxation of real estate. We understand the critical tax issues in low income housing tax credit transactions, including:

  • the 10% test under Internal Revenue Code Section 42
  • compliance with the minimum set-aside
  • tax credit recapture during the compliance period
  • deferred developer fees
  • special allocations of partnership income and loss
  • tax-exempt status
  • property tax abatement 

Our tax attorneys continually work to develop creative and sound deal structures to address these issues.

Market Knowledge

We maintain close and strong ties to key industry players, including state housing agencies, HUD, USDA Rural Development, tax credit investors and syndicators, for-profit and non-profit partners, bond issuers and bond counsel, Fannie Mae, Freddie Mac, conventional lenders, property managers, and key municipalities. Our volume of transactions provides us with access to the most current financing terms and conditions, especially in California and the Western United States.

Government

Our attorneys routinely advise on the rules and regulations of state agencies responsible for housing development and housing finance matters (such as the California Tax Credit Allocation Committee, the California Debt Limitation Allocation Committee, the California Department of Housing and Community Development, the California Board of Equalization, the California Department of Industrial Relations, and the California Department of Finance), as well as federal agencies such as the IRS, HUD, and USDA Rural Development. We have taken a leading role in organizing client responses and shaping public debate regarding proposed regulatory changes that affect affordable housing development. 

In addition, many administrative policies that affect the development of affordable housing projects are unwritten, and our extensive experience in numerous transactions provides clients with insights not generally available from other practitioners.

Representative
Matters

We believe that no law firm outside of Boston and Washington, D.C. handles as many affordable housing transactions on behalf of developers as Cox, Castle & Nicholson.  The following examples represent the kinds of transactions we handle across the country:

Represented the developer in an affordable apartment rehabilitation deal utilizing (i) short-term tax-exempt bonds that were cash collateralized with the proceeds of the sale of taxable GNMA securities, with a mortgage loan under HUD's 223(f) program, (ii) low-income housing tax credits, and (iii) seller financing.

Represented the seller of a portfolio of multiple affordable housing projects in several states.

Represented the buyer of 100% of the ownership interests in several entities that owned, directly or indirectly, a portfolio of existing, fully-financed affordable housing projects in several states.

Represented the developer of the required inclusionary affordable housing component of a large master-planned community in connection with the acquisition and financing of that property, which representation included advice regarding (i) utilization of master planned community facilities fee credits in a low-income housing tax credit financed deal, (ii) exemptions from California's prevailing wage rules, and (iii) structuring land donations in a low-income housing tax credit financed deal.

Represented a developer in a year 15 tax credit resyndication transaction, including refinancing the existing tax-exempt bond loan for the project and structuring the ownership of the buyer entity to comply with buyer/seller disaffiliation requirements under Internal Revenue Code Section 42.

Represented the developer in the financing of a five-property scattered site affordable housing project, involving tax exempt multi-family housing bonds, low-income housing tax credits, United States Department of Agriculture Rural Development loan funds, and Tax Credit Assistance Program grant funds under the American Recovery and Reinvestment Act of 2009, in a first-of-its-kind financing transaction in New Mexico.

Represented the borrower in a loan transaction secured by a pledge of equity interests in a handful of entities that indirectly owned controlling partnership interests in a portfolio of dozens of existing, fully-financed, and operating low-income restricted apartment communities.

Attorneys &
Paralegals

Name Title City Phone  
Allen, Wylie S. Senior Counsel San Francisco 415.262.5119
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Campbell, Scott R. Senior Paralegal Los Angeles 310.284.2107
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Dubois, Christian D. Partner San Francisco 415.262.5143
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Elitzur, Ofer Partner San Francisco 415.262.5165
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McClanathan, Mark P. Partner Orange County 949.260.4630
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Ryan, Stephen C. Partner San Francisco 415.262.5150
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Tseng, Rebecca K. Associate San Francisco 415. 262.5122
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Weil, Lisa D. Senior Counsel San Francisco 415.262.5175
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