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Ian Winters Sessions

Ian Winters director of the northern california land trust visited the LA Eco-Village during the weekend of may 13, 2006 to help with the steps for creating a Community Land Trust and a resident owned organization for administering the buildings of the LA Eco-Village. He meet with a considerable group of people from the LA Eco-Village, others were invited as well. These extensive notes were taken by Executive Director Kay M. Gilbert of Cultivating Sustainable Communities.

To: the Boards of Directors of Cultivating Sustainable Communities (CSC) and The Beverly Vermont Community Land Trust, and the Intentional Community of the LA Eco-Village

Friday 5/12/06 afternoon

NCLT 32 years ago, Berkeley group wanted to create world community series to teach people from inner cities to replicate work from the Farm in Tennessee, part of “back to the land” hippie movement. Started with a Central Valley chicken farm, then got a couple houses in Oakland, 5-6 unit collectives, though not legal co-ops, are now leasing co-ops. NCLT master leases building and land to them with something like a ground lease, and they run their own internal structure. Got first full-time staff in early 90s, now 6 people, 5-8 consultants, depending on project. Now is both an affordable-housing developer and a landholder for co-operative and collective housing. Both renovation and new construction of LEHCs, rental housing, limited-appreciation condos and a 7000 sq.’ commercial building, dedicated to lower rents for grassroots groups, etc. Commercial real estate pays for his salary, is a way to have an income stream for core infrastructure. Now getting more mixed-use infill buildings, mostly condos because that’s what city funding supports. The co-ops they have now have come as already-existing communities.
Co-op intentional communities really have to be self-forming, have to have people who have already committed to living together, not just people looking for cheap housing. Must know what their goals are. NCLT: CLT board and co-op board have very different focuses. Co-op has the hands-on, day-to-day responsibilities: garbage pickup, taxes, building maintenance, while CLT has broader responsibilities looking at the overall community. In NCLT’s case, have property in 3 cities. Much longer-term focus, 99-year leases.
Mission statement and articles incorporate our goals. Coalition of area CLTs to educate government agencies, funders, lenders, etc.

Funding source. How will we fund buying the buildings? Donations of land, pro bono work, fundraisers, etc. The resources come if you start doing the project and have a vision that will get people excited. NACL’s ground leases cover about 3% of their operating costs. This bldg. takes in about $17,000/mo. NCLT has different arrangements, where the fees depend on the level of services offered. This bldg. @ $1500/mo., @ $2400/mo. next door. Want sales price to keep debt service at that level or lower. CRA and LAHD each kicked in $25,000 when CRSP bought the bldgs. NCLT acquires each building as a subsidiary LLC for protection: if a bldg. turns out to need, i.e., massive remediation, the LLC fails without bringing down the rest of NCLT. LAEV doesn’t get a property-tax exemption because it isn’t part of a regulatory agreement. But an LEHC won’t get a property-tax exemption anyway, except for units that are rented to nonmembers: Board of Equalization ruling. Can get the exemption, however, if the enforcer of the agreement is a separate legal entity from the LEHC.

Want to keep the renters here, so how to structure the co-op? Ian: LA condo-conversion ordinance does not exempt LEHCs, and that includes the 1-year conversion moratorium if it goes into effect. There area statutory exemptions for LEHCs in Long Beach, Santa Monica and other cities, but not in LA. Would have to go through DRE and State Subdivision Map Act unless have gvt. funds invested that are at least $100,000 or 10% of equity in the project, whichever is less. To have a LEHC, there’s a minimum percentage of owners you have to have (51%, 70%?) v. renters. Is it 70% if you’re doing a blanket mortgage? If the city or another agency has the oversight, and you don’t go through the DRE, there’s more flexibility. Permanent rentals? If have, i.e. 25% renters, could make their units 1 share, owned by the CLT or the co-op. Don’t have to have each share = 1 unit. Could treat bldgs. differently: this one a co-op, the other a limited-appreciation condo. Other bldg. has separate entrances and utilities for each unit. Condos must have a much higher sound-barrier between units than private residences. This building has 36-38 habitable units, other has 8. Minimum buy-in would be 23 people, and not there yet. What would it take to get more people to sign on? Different membership classes? Have to offer every existing tenant a right to purchase, or else Ellis out the building and evict them. If the primary lender doesn’t force you to presell all your memberships, can hang on in limbo for years until enough people sign on. LAEV has month-to-month leases, and got exemption from rent control. Now, 3 broad groups here: conventional renters who were here before the Eco-Village (@ 20), people who came to be part of the intentional community (@ 12-10) and people who moved in but are not involved and are primarily interested in cheap rents. What about relocating people? Ian: being long-term landlords to 10-15 low-income elderly households would make sense, and would be preferable to relocating. Short-timers who aren’t really participating, can kick them out or change occupancy agreement so that if they’re not participating in the community, they pay market rate. Can exempt anyone who is in a protected class: people over 62, with disabilities, very low income, etc.
Alternative to LEHC would be a resident-controlled nonprofit. Nonprofit would own the bldg., and each resident would have a small membership interest, and residents would elect the nonprofit board. Difference is equity issue. What is the financial goal? If people want to accrue equity, you don’t do this. Development costs include construction, renovation, acquisition costs, legal and accounting fees, development liability insurance, etc. What level of code compliance you have to reach will dictate the construction costs. Would it be, i.e., a full seismic retrofit, or just bolt the building to the foundations? Each city has different standards. Need to know that in advance to plan the budget. Don’t want to be held to the standards in the LA condo-conversion ordinance. Resident-controlled nonprofit is simpler, but unlike LEHC, get no equity or tax benefits. Can have a nonprofit with a goal of building equity: set aside a certain amount of rent in trust for each resident monthly, and lend that money to the nonprofit at 4% interest for operating costs. Or have member-owned micro-venture capital. Mariposa Grove, CLT owns LLC, but each owner has $5000-15,000 sweat equity as part of the purchase price, which they’ll get back with interest.

If buy-in amount were, say, $100,000, would put down minimum of $2000, and community lends back $89,000, and part of monthly carrying charge pays that back. CRA has a silent second, outside party gives second mortgage, with nothing due until you sell or pay off first mortgage. Need enough of a cash infusion to float the working-capital part of it, the amount you return back to residents once or twice/year.

Political issue of not building any equity, since that’s been a big selling point for CLTs. NCLT does a lot of condo project because condos get a lot of gvt. funding. Everything else gets much less, or nothing, because they’re not familiar. Instead you talk about resident control in preventing inflationary pressure on real estate, and you have resident savings accounts.

Friday 5/12/06 evening

Community can have 70-80% member changeover in 3-4 years. NCLT moving to LACs, well-below market rates, with similar price-increase structure as any CLT. 99-year time-frame forces a focus on both community and economic sustainability. NCLT isn’t a membership organization. Geographic service area is so broad that there was never a meaningful way to create a membership basis. Instead, partners with many smaller organizations on projects, work with very local community groups, lets them do bigger projects than they could do on their own. 30-40% of income is development revenue from new projects, 30% rental income (40% of real estate is commercial or residential rental, to maintain a constant income stream), 10-15% from grants, 5-10% from ground leases and resale fees, 5-10% from consulting income, etc. Board typically 9-12, 6 at the moment. 1/3 residents, 1/3 people from partner organizations and 1/3 people with specific professional skills the CLTs need. Hardest thing is to get residents on the board. Tries to do as many projects as possible without public funding, which becomes immensely more complicated. Many donors like the idea of not using tax dollars to subsidize housing.
Different ownership models, based on your financial goals (i.e. building equity), what financial commitment do you want your members to make? What resources do you have available, in terms of financial donors, sweat-equity, etc. If you guarantee low-income housing, that opens up a lot of funding sources, especially with government grants. But what are the catches? What are your member resources: can people put their own money into a project, or that of friends/family/employers, etc.? If you're already the resident of a building, that tenancy is a resource, if your city has rent control/relocation fees/eviction protection. The building is more valuable without you in it, which gives you bargaining power.

Ownership models:

  1. Resident-controlled nonprofit (RCN). Residents pay fee about equal to a security deposit, and elects the board of the nonprofit that owns the building. Open to a broader economic range of residents, but you walk out with very little equity if you put very little in.
    Great tax advantages for whomever sells you a building, since buildings will probably have appreciated tremendously, and the owner may be facing huge capital gains if selling to a regular buyer. You can make an attractive offer, even with a below-market sales price, because the owner gets a tax write-off of the difference between the market and sales price, plus major savings on capital gains. But small owners may have no use for such a benefit, if the building is essentially their only asset. They don’t need the tax write-off, and are better off getting full market value and paying the taxes.
  2. Limited-appreciation condominium (LAC). You have a deed to your individual unit.
  3. Limited-equity housing co-operative (LEHC). Residents own a share in the whole building, which may or may not be linked to a specific unit. You have to have some outside directors. CA co-ops fall under the same rules as condo conversions unless you’re a LEHC exempt because you’re overseen by a municipal agency.
    RCNs don’t have to do a subdivision like a condo or a co-op. Long and time-consuming process. CA Dept. of Real Estate (DRE) rules very stringent, don’t want to do that if you don’t have to. City housing dept. rules, too. From whom you borrow money has a huge impact on what you do.
    NCLT has had to take over projects a couple times when the groups running them failed. But that’s okay, because it kept the housing intact, just changed providers. Once had to step in and guarantee to the bank that they’d cure a default, and would have a new owner within 90 days, but met the deadline and didn’t have to follow through. NCLT has a couple single-family homes, too.
    Americans with Disabilities act (ADA) requirements: varies based on dollar-value of improvements, may apply to whole building or part of it. Want to try not to trigger this requirement if you can help it. Depends on your city building dept., there’s some discretion and it can be hard to get clear answers.
    Expanding a CLT: Don’t cross-collateralize, borrow against one project to fund another, or can end up losing both. But, of course, that’s what everyone does. What can go wrong? Lose the building to your lender. Or have overlapping board and staff, lack of oversight and accountability, lack of planning, and you find yourself in debt you can’t pay off with the income you bring in. Or lack of professionalism in record-keeping leads to regulatory problems. Could have higher sales price for the buildings, closer to market price, but set off with CLT holding part of the dept as a second mortgage, on the terms that once the co-op starts making a profit, part of that goes to the CLT until the second is paid off. And the residents end up earning more equity based on the higher sales price on paper.
    Co-op, if you don’t go through the DRE, has more control over who buys, but selection criteria have to be very explicit and the selection process has to be very transparent, with explicit statements of non-discrimination against people in Unruh Act protected classes. Can have shared ownership of everything from cars to food-production facilities. If your share price is more than someone can come up with, you’ll have to provide the financing yourself, because it’s not New York or Chicago where you can easily get co-op loans. Commercial lenders here won’t touch them, because they can’t bundle them and sell them to Fannie Mae. Bank of Marin will make loans on tenancies in common (TIC), but that’s a joint loan based on everyone’s credit. Lender here don’t like TICs either. Co-ops have had maintenance problems that condos tend not to, because owners will generally do more work to maintain their property values.
    If people want to build equity and also have low barriers to entry, and want to still maybe get property-tax exemption for low-income units, can create a limited-liability company (LLC) with the tenants. Residents are renters, but they are also part-owners of the building they live in. Some sweat-equity credits used as part of buy-in. Company could potentially fund 95% of your buy-in, which you’d pay back over time through an amount added to your monthly rent. In return, you are earning interest that you get back, either over time or when you leave. A substitute for earning equity through a LEHC.
    Your structure depends on your goal(s): how easy you want it for people to be to come in and out of the community, how important it is for people to have the equity and tax benefits of home-ownership, how much economic and age diversity you want over time (do you want to be able to accommodate people as their living conditions and family sizes change, or will this be a place people live while they’re single, but then move on from). Do you want to allow inheritance? That’s a standard feature of CLT ground leases. But how can an intentional community also have inherited members? They’d have to go through the membership process, or sell the unit and get the profit. Need to write these ground-lease provisions very carefully, or you’re a nasty probate lawsuit waiting to happen.
    Board recruitment: come from contacts with partner organizations, generally. Have to be very cautious about who you recruit. People volunteer who have ulterior motives, are tied to market-rate developers and want to take over the organization. That’s why NCLT decided not to become a membership organization.
    You can have sliding-scale share fees

Saturday 5/13/06 morning

Goals for the day:

Ian: Step back, discuss and clarify goals. What will make people decide to stay or not, what are the long-term goals of the group that the CLT/LEHC are meant to achieve. What buy-in amount, how much sweat-equity, what work requirements, how much equity built up?

timelines/items to confirm

1. any obstacles that could completely block a path

2. aims and goals of the project for LAEV

Should there be long-term renters, other than the pre-LAEV tenants, who don’t participate in the community? Divided opinions, but more no than yes. Could people who work more pay less? Or if people don’t participate, higher rents discourage them staying. What about people who came post-LAEV, but are in Unruh-protected classes?

What percentage of buy-in required? Depends on the legal structure. Is state law 51% ? NCLT standard bylaws require 80% for co-ops. Each city can have its own requirement. If doing a LLC, only need 1 resident to buy in, but then that person would own the whole bldg.

How does IC make a binding decision? Regular meeting doesn’t have quorum requirement, makes consensus decisions, documented in minutes of meetings. Anyone can make a proposal or ask for discussion. Idea is to use consensus process to identify and address issues and concerns, but sometimes compromise and move on. If there aren’t enough people at the meeting, or someone with known concerns is absent, will post it to the listserv for wider circulation. People who don’t generally participate can still block a decision.

Need clarity on who can make decisions. After the transition, anyone who buys a share and/or owns a unit can vote, and bylaws will have to lay out rules on participation. Can’t just disenfranchise people for not coming to meetings, need a transparent procedure: i.e. send notice by certified mail when someone misses x meetings, and then the person has a fixed time and procedure before losing voting privilege. State law will dictate some of the terms.

Co-op could elect an executive committee to handle day-to-day decisions, then have a monthly meeting for the whole community to handle broader policy issues. For daily tasks, delegate authority, and then don’t second-guess the people to whom it’s delegated.

Ian: Have everyone interested in ownership sign a lease committing to buy-in, without yet specifying the structure, and cut a check for, i.e. $500, i.e. an option to purchase (even if you have a payment plan/promissory note for the option). Purchase-option deposit should be non-refundable, but could be transferable if someone initially plans to buy in and later changes mind. NCLT has a draft lease for this. People who want to remain renters won’t sign. The people who do sign become the decision-making body. If it’s too big a group to handle daily issues, it can elect a 5-7-person board to do so. Everyone should be on at least one committee. Can have simple, 1-page, unincorporated-association bylaws. Specifies participation requirements. Could, i.e., have 6-month lease, and if people don’t fulfill participation requirements, they revert to being renters. Lease not automatically renewed. Can leave room for temporary residents, without allowing them to make long-term decisions for the community.

Next, sign property-management agreement, with whatever explicit terms you want about responsibilities and pay. (Here, between CRSP and prospective owners). The manager controls adequate funds and disburses them as needed, then reports to the board, rather than going to the board first for authorization. Example of NCLT’s Mariposa Grove project.

For new residents, can have trial period, i.e. 6-month, before they can opt to buy in. It’s better and easier to get to know people before letting them in than it is to kick them out if you’ve let them in and then find out they don’t fit in. Transparency, too; it’s absolutely clear to people, in advance, what they’ll have to do if they want to join the community.

But what about the people who are here now as theoretical community members, but don’t participate? CRSP has the to say: pay a rent commensurate with your income, or get out by date x. Can use affordable-housing guidelines to set the rents. CRSP has a mission, and if people don’t participate, CRSP can’t fulfill that mission. CRSP could get a regulatory agreement with a public agency, or record income restrictions with the county. Could have third party do confidential income verifications. However, recording restrictions ties your hands in the future, and can come back to bite you if someone gets pissed off and becomes litigious. Default assumption of good faith isn’t always justified.

Saturday 5/13/06 afternoon

CONSENSUS reached:

Prospective owners will sign a new lease, containing an option to purchase a share in an LEHC or other ownership entity. This agreement will contain the participation requirements, and will require a nonrefundable membership fee that will apply to the purchase of a share. Ian will send a NCLT sample lease.

The people who sign and pay into the lease will become the managers of the LAEV buildings as an unincorporated association, and will elect a working board to administer the transfer process. Next, the association will consider signing a property-management agreement with CRSP.

For non-significant decisions (those that don’t involve tenancy, renovations, rental structure, etc.,) people who don’t opt in can have, but the opted-in owners will make the big-money, long-term and/or policy decisions. Resident categories: prospective owners, participating renters and non-participating renters (including people who lived here before the LAEV formed, or came after but are in Unruh-protected categories). Participating renters will have more input than non-participating ones, but everyone will encourage the latter to participate. Participating renters will be able to attend meetings and make comments, but not vote.

structure example: NCLT’s Mariposa Grove project

Started out like LAEV. Owned by 1 person who wanted to create eco-friendly co-housing. He bought 3 properties, recruited like-minded people to rehab them into 8 units on three lots. They operated as an unincorporated association. Eventually, owner tired of having all the responsibility. Group decided to find a limited-equity co-housing community, with a goal of building equity. During rehab process, the earned sweat-equity credits by tracking their times. Came to NCLT to handle subdivision process to go to community ownership. Created LLC, co-owned by NCLT and the residents (who pay in at least $5000 plus sweat equity credits worth up to $15,000), which acquired the property from the owner. NCLT guaranteed the loan. If the subdivision process went bad, everyone would lose $5000-15,000. so not just NCLT has a stake in the success. This also discourages litigation (you can sue, but you’ll in effect, lose your house if you do). Resident group would have first option to purchase if NCLT decided to get out of the project for some reason. Everyone makes 4%/year appreciation on her or his investment in the LLC (including NCLT).

Now LLC, which owns buildings, has a property-management agreement with the owners and another nonprofit (of which all residents are members). LLC handles real-estate construction and finance side of things. At the start, one resident wasn’t an LLC member. Midway through the subdivision project (LLC is the subdivider), has more rehab to do to meet condo code, but has filed subdivision map (parallel city and state process).

Once DRE and city approves, everyone will close on her or his unit, land will transfer to NCLT, LLC will dissolve and condo association will take over the buildings as LACs. Residents and land trust will get back their initial investment (including sweat equity) plus interest. Can use that profit as the down-payment (agreement with LLC that it will lend you your prospective payout 90 days in advance of your closing).

At LAEV, BVCLT and the IC could form an LLC. In LA, could be much harder to form a condominium association, which could trigger minimum parking requirements, seismic retrofits, unit separation soundproofing requirements and other expensive code upgrades. CLTs can protect their projects by having them form LLCs. LLC could take title to these two buildings and their land, have a membership comprising the opted-in owner/residents and CRSP and/or BVCLT. Risk is that LLC would get no benefit from having BVCLT as a member because it has no assets or track record, though BVCLT would benefit by getting a leg-up on having a track record. But will then need to finance the buildings, by telling the bank that the LLC is buying a rental-apartment bldg. If you tell the lender that you’re acquiring the bldg. in order to convert it, the loan becomes a construction loan, much riskier and the interest rate will be at least 3 points higher. Liability risk to CRSP if it is the subdivider, but not if it is part of the LLC as subdivider.

Assume building sale price is $2.5 million. Where does the financing come from for the LLC to buy the bldgs. from CRSP: CRSP? commercial lender? raise funds from other sources? $17,000/mo. income now for this bldg. Need @ $60,000-70,000 in capital. Outside financing sources: bank financing (LLC could maybe borrow $1.75 of $2.5 million) and borrow rest from CRSP. Or get money from community-loan funding organization or from a city program. However, if you’re getting city money, get a lot, because there are a lot of strings attached and you need to really make it worth your while (maybe @ $15,000-20,000/unit). This will like trigger a bunch of code upgrades. If LLC has 25 perspective owners who each put in $5000, that’s $125,000. Then there’s sweat equity, past and future. Can say building was worth $x in 1992, is now worth $x+y, where y is added value from sweat equity. Lois: CRSP would prefer having a promissory note for the building than cash, because it doesn’t have an immediate planning for the cash. Could invest in other buildings without cross-collateralizing LAEV. If the LLC has a nonprofit member like CRSP, that member can do the grantwriting. If nonprofit owns a large enough percentage (i.e. ≥ 95%) of the LLC, the nonprofit status passes through to the LLC.

LLC could own land and buildings (and potentially act as the developer for what is now the garages). Have 2-year period to write and file documents for LEHC or other final ownership entity. (It takes time, especially if you have to get city exemptions, i.e. exempt LEHC’s from condo-conversion law.) BVCLT would be finalizing bylaws, ground lease, board, etc., at the same time. In two years, have LEHC, have 25 owners with $5000/person invested. On closing day, they get their investment back, and it then goes to the co-op as a purchase price for the shares. If permanent financing is from a bank, the bank gives the LEHC a blanket mortgage for $2.5 million (or, if loan is assumable from the LLC, CRSP could be the lender). In reality, is likely to be multiple sources: CRSP, bank, CRA, grants, other donors, etc.

Need to figure out a realistic sales price, even though it’s higher than you might want it to be, so you can apply for grants for that amount. The more grants you get, the less you have to finance. Assume $10,000 net income/month, can support $1.3 million, 7% amortized 30-year fixed mortgage (although could probably only get loan for 7-10 years). BVCLT: CRSP could transfer the land value to BVCLT, which is @ 2/3 of the total property value. (Developing affordable, ecological, cooperative housing is part of CRSP’s mission, so it doesn’t have to make a killing on the land.) At $5000 net/month, could borrow $740,000. Should the LLC be seeking title only to the bldgs., leaving BVCLT to own the land? Easier to do this if you aren’t trying to get conventional bank financing. If CRSP is one of the main investors, it’s not a transfer for property-tax purposes. Instead, it’s a transfer to a subsidiary, and keeps the same tax basis.

A clear transfer will keep relationships smoother down the line. One transfer is both cleaner and cheaper than multiple rounds of financing. How to do this in a way that creates flexible money for CRSP? If CRSP and the owners agree on the price, and the owners come up with 5% and get a mortgage for the rest, CRSP gets the cash. If CRSP transfer land to BVCLT, the CLT then has an asset held in trust, against which it can’t borrow. Can get some portion of bldg. revenue that now goes to CRSP. What funds does CRSP want to have available in cash for other bldgs., v. what part it wants to have invested in LAEV? LLC would be wise to get minimum 3-year promissory note from CRSP.

Market value for the property is $5 million for buildings and land, $3 million land, $2 million buildings. Scenario: CRSP transfers both to LLC, with a note that says, “if you transfer the land to a CLT, CRSP forgives $3 million of debt.” Where does sweat equity cash out? At the point that individual owners purchase a share. CRSP credits each owner with appropriate part of sweat equity, so LLC borrows $2 million minus the sweat equity. Safest to transfer the sweat equity when the LLC sells to the co-op, because a public-benefit, non-membership nonprofit can’t give its assets to an individual, but the LLC can. Big source of cash for LLC is the blanket mortgage for the bldg. People could, in theory, have more sweat equity paid in than they owe for the share, and would get cash back. However, everyone shareholder has only one vote, no matter what he or she pays for a share. Could decide that the co-op would only own this building, and the other would be rentals, or CRSP would continue to own it.

Ian’s future role: he has a favorite title-company officer, who is now in LA. It’s incredibly helpful to have a title officer who actually understands the concept of CLTs and LEHCs. Need a pro-bono real-estate lawyer who is really familiar with LA code and regs, or, better, has city and county contacts who can leverage your political resources. Want someone with friends in the assessor’s office. Paying the right lawyer can end up being a bigger bargain than getting an inexperienced free lawyer. Can send unincorporated-association bylaws examples as well as lease-option agreement example.

CONSENSUS reached:

The people who participated today are empowered to approve a lease-option agreement and association bylaws.

Volunteers to draft the agreements: Angel, Lara, Dale, Joe, will meet Wednesday night. Once the new lease is done, have to give everyone statutory notice period between distributing it and its taking effect.