Rate increases to offset a shrinking property tax base will further erode commercial real estate values.

Across the country, local governments are struggling to maintain revenue amid widespread property value declines, as a result they are resorting to tax rate increases. This funding challenge increases the burden on owners of commercial properties that are already suffering and ultimately degrades property values and the overall tax base. Let's examine how this unfortunate and predictable scenario plays out, and the negative impact it inflicts on commercial real estate values.

Rate-to-value dynamics

A commercial property's taxes depend on its assessed value, which represents the property's market value determined by a local government assessor. The assessed value multiplied by the tax rate determines the property tax owed.

Taxing entities calculate the tax rate by dividing the budget, or dollar amount levied for an area, by the total assessed value of all properties within the jurisdiction. Taxpayers can multiply the resulting tax rate, also known as a mill rate, by the assessed value of their individual property to determine the tax owed.

How can decreasing assessed property values lead to an increase in tax rates? When property values decline, the overall property tax base shrinks. The local government's fiscal needs remain stable, however, or might increase due to inflation and the growth of public services. If the government does not reduce either its budget or levy requirements, tax rates will rise as the tax base declines.

Tax levying methods vary from state to state and can differ across real estate classes, so there are few convenient, apples-to apples-comparisons available. However, a chart of year-over-year changes in the property tax rates of Boston, Minneapolis and Denver captures the beginning of an upward trend. The percentages in the chart represent an increase or decrease from the year before.

Sources: City of Boston published commercial tax rates; Hennepin County published tax rate cards; City of Denver published abstract of assessment and summary of levies.

Property taxes trail the market because assessed values reflect market data from before the assessment year. For example, taxes payable in 2025 may be based on values set in 2024 and based on data from 2023. As a result, with values continuing to decline, tax rates are likely to continue rising.

This scenario creates a challenging environment for commercial property owners, who face increased tax rates as property values decline, affecting investment decisions and lowering market stability.

Impact on real estate value

Increasing tax rates affect commercial properties in two significant ways: One is to reduce net operating income (NOI) for gross-leased properties, in which the landlord pays expenses; the second way is to increase occupancy costs for tenants in net-leased properties, which pass expenses through to tenants.

In gross-leased properties such as apartments, the landlord pays all expenses including real estate taxes. Higher tax rates consume more of the landlord's income, and that NOI reduction decreases the property's market value. For example, if the effective tax rate increases from 2.0% to 2.15% on a $10 million building, the taxes would increase by $15,000.

The additional $15,000 in taxes will come straight off the building's net income, which translates directly into a value loss.

Tenants with triple-net leases pay a base rent plus all expenses. In reference to commercial property taxes, it is not uncommon to hear, "the tenant pays it anyways, so it doesn't matter to the landlord." However, just as landlords are sensitive to cost increases in gross-leased buildings, tenants are sensitive to increases in total occupancy cost (rent plus expenses).

For example, a tenant with $25 per-square-foot net rent and $15 per square foot in operating expenses has a total occupancy cost of $40 per square foot. If the taxes increase by $1 per square foot, then their total occupancy cost will increase to $41 per square foot.

For tenants, a rise in occupancy cost is akin to a rent increase. If expenses become too high, they may demand a rent reduction or relocate to a more affordable building. Thus, the increased tax rate impacts building value through reduced rent or lower occupancy.

Clearly, increasing property tax rates have a significant impact on commercial real estate values. As assessed values decline and local governments let tax rates rise to meet their fiscal needs, the environment for commercial property owners grows more challenging. This leads to reduced income for landlords and increased occupancy costs for tenants, ultimately diminishing asset values, impeding investment decisions and eroding market stability.

Highest and best use analysis can be a key to reduced property tax valuations, observes Timothy A. Rye of Larkin Hoffman.

Ad valorem property taxes reflect real estate value, and in most states, assessors value a subject property at market value based on its highest and best use. Although assessors often assume the current use is highest and best, taxpayers who analyze their property's usage may discover an opportunity to reduce their assessment by showing its optimal use has changed.

What is highest and best use?

Highest and best use is the "reasonably probable use of property that results in the highest value," according to the Dictionary of Real Estate Appraisal, 6th Edition. Along with that definition the publication includes four criteria the highest and best use must meet, requiring that the use be legally permissible, physically possible, financially feasible, and maximally productive.

For property tax valuation, assessors, appraisers and property tax attorneys need to consider each factor in a highest-and-best-use analysis. For most properties, determining whether the current use is legally permissible or physically possible is easily ascertained by answering the question, "Can the property do what it is doing?"

Determining whether a use is financially feasible or maximally productive is trickier. Financial feasibility of the current use may be as simple as identifying whether the property generates a positive net operating income, or if it would be cost prohibitive for the user to replace the space with an alternative property.

The analysis gets more complicated when trying to determine whether the use is maximally productive.

Take the example of an aging office building with declining occupancy. Should the owner invest money in building improvements with the goal of attracting more tenants, or is it better to vacate the building and convert it to multifamily use?

In this example, the first option would require a discounted cash flow analysis that considers an extended period of renovations, tenant improvements, vacancy loss during lease-up, and leasing commissions. In other words, the building would be valued as though it were stabilized at some point in the future, the costs associated with achieving stabilization would be deducted, and the future value and investment costs would be present valued to the valuation date.

Alternatively, the property could be valued like a new development with the projected use as multifamily. Whichever use has a greater value in today's dollars is the winner, or maximally productive use, and therefore the highest and best use.

The tipping point

When does a property's current use stop being its highest and best use? It could be when new development is in high demand and buyers will pay more for the land alone than they will for the property with existing structures.

It could be when the property is losing tenants and accumulating significant vacancy. The market sees the building as less appealing, and the remaining tenants start looking for more vibrant properties. Or it could be when the building is simply worn out and the cost to fix or restore it is greater than its value would be after repairs.

Every property will have its own unique set of circumstances to signal the practical end of its current use, but once a usage starts to tip, it seldom comes back. When the tipping point arrives, the highest and best use changes, and can have a profound impact on valuation.

Usage drives taxable valuation

When a property's current use is no longer highest and best, the property tax valuation likely should change too. While property tax assessments are generally based on the highest and best use, the mass appraisal techniques assessors employ to value properties are unlikely to incorporate highest and best use changes. The volume of properties assessors must value is simply too large to include individual highest and best use analyses.

As a result, it is up to taxpayers and their property tax counsel to identify when the highest and best use has changed and bring it to the assessor's attention, either informally or through a property tax appeal. In preparing arguments for such a meeting, remember that valuations based on highest and best use require data reflecting the highest and best use.

For example, if an office building is no longer viable as an office, but rather its highest and best use is conversion for multifamily residences, then the comparable sales should comprise sales of buildings that are also facing a change to multifamily. Using sales of stabilized office buildings as comparable sales would result in improper valuation of the subject property hypothetically stabilized with office tenants, rather than pursuant to its actual highest and best use.

Commercial real estate markets are experiencing significant changes, straining many property operations and owner cash flows. As a result, it is critical to carefully analyze highest and best use when reviewing property tax assessments.

Minnesota Supreme Court affirms decision barring use of airport concession fees in income-based property valuation.

A recent Minnesota Supreme Court ruling requires tax assessors to exclude an airport's concession fees from rent-based valuations for property tax purposes. The case offers a flight plan to lower taxes at many of the nation's transportation hubs, and underscores the importance for all taxpayers to exclude business value from taxable property value.

Every major airfield collects fees from food and beverage providers, retailers, banks and other businesses that provide goods or services on airport property. Concessionaires commonly pay these charges in addition to rent owed for the real estate where they operate. Many of these businesses are also responsible for property tax that passes through to tenants in a commercial lease.

The cases leading up to the March 29 state Supreme Court decision involved two car rental companies that challenged their 2019 tax assessments, claiming the assessor's office had overstated their property values by including the concession fee in its income-based valuation.

High-flying fees

Both Enterprise Leasing Co. of Minnesota and Avis Budget Car Rental pay a concession fee equal to 10 percent of gross revenues in addition to real estate rent for their operations at Minneapolis-St. Paul International Airport. The tax assessor for Hennepin County had historically valued the auto rentals for property tax purposes by including the concession fee in its income-based approach to valuation.

The auto rental companies challenged the valuations on their 2019 taxes in the Minnesota Tax Court. Law firm Larkin Hoffman, which represented both taxpayers, argued that the concession fees are not rent and should not be included in the income approach for property tax purposes.

The rental agencies prevailed in tax court. The court found that the concession fee is not real estate rent and that the county substantially overstated market values by including the fee in its calculations. Correcting the assessor's calculation reduced Enterprise's value from $34.873 million to $21.107 million, or 39 percent less than the initial assessment. Avis' property value dropped 39 percent as well, from $20.565 million to $12.497 million.

The county appealed the tax court's decision to the Minnesota Supreme Court, arguing that the concession fee is rent that must be used in the income approach. The Court affirmed the lower court's decision, however, holding that "the concession fee is not rent for purposes of the income approach."

Fee-simple principles

The rental agencies' case stood on fundamental precepts of fee-simple valuation. Minnesota is a fee-simple property tax state, meaning valuations for property tax purposes must value all property rights as though they are unencumbered.

Additionally, the leased-fee interest, or landlord's rights subject to contractual terms, should not be used for property tax valuations. Per the state Supreme Court, rents attributable to specific leases are disregarded except to the extent they represent market rent. It follows that business income should not be included in valuations for property tax purposes.

Taxpayers doing business at airports across the country often pay concession fees or other charges based on their revenues or business performance. Many states, like Minnesota, require those same properties to be valued on a fee-simple basis, which should neutralize any impact of business value.

In representing the rental car agencies at all stages of their appeal, Larkin Hoffman stressed the importance of these valuation concepts and how the very definition of a concession requires its exclusion from calculations of taxable property value. A concession is a "franchise for the right to conduct a business, granted by a governmental body or other authority," according to the Dictionary of Real Estate. Accordingly, if a concession fee is a payment for the right to conduct business and not for the right of occupancy, then it is a business revenue.

The county argued that because the rental agencies' concession agreements included the phrase for "use of the premises," then the concession must only be for the real estate. However, the tax court found that the concession fee was consideration for access to the airport car rental market rather than the real estate.

The tax court reasoned – and the Supreme Court affirmed – that the concession fee was not for the real estate because:

Concession fees were also paid by off-airport rental car companies, indicating that the fee is a business revenue rather than rent;

Inclusion of the concession fee in the income approach would inflate the value to 10 times greater than the cost approach, which would be clearly unreasonable; and

Inclusion of the concession fee in the county's income approach distorted other inputs.

It is well established that a fee-simple property tax valuation should exclude business value. Now, Minnesota courts have also acknowledged that when a concession fee is for the privilege of accessing the airport market rather than for the real estate, that fee represents business value.

To prevent erroneous inclusion of business value, and since airports are special-purpose properties, the court gave primary weight to the cost approach. With this decision, Minnesota's highest court has confirmed that concession fees are not rent for real estate and instead represent business value that should be excluded from the income approach.

For taxpayers in any jurisdiction that taxes property based on its fee-simple value, the recent decision is a reminder to ensure that assessors are excluding business value when calculating taxable property value. For businesses that also pay concession fees in addition to rent, the Minnesota case may provide an impetus to learn how those fees affect their own property values. And if those inquiries spur taxpayers to appeal their assessments, then the Minnesota case law may provide a valuable example and support for their arguments.