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Property Tax Resources

Apr
18

Improve Your Odds of Winning Property Tax Disputes

"Look for release of damages provisions that waive the right to sue if there are surface impairments. Make sure that the property has not flooded in recent years, especially if it's near a stream, lake or low lying area. Flood plain maps are periodically updated, so current information is crucial."

By Howard Donovan, Esq., as published by Commercial Property Executive Blog - April 2011

In ad valorem tax disputes, commercial property owners and their tax counsel often are so focused on rent rolls, occupancy, capitalization rates and other big-picture considerations that they overlook special conditions affecting value. There is "ore to be mined" in less obvious areas, however.

Here are five factors to consider in making sure a tax protest covers all the bases.

  1. Subsurface Conditions. Geology can weigh heavily in determining fair market value. Common examples include old mining activity, limestone formations and sinkholes, earthquake events, flood plains and periodic flooding. The property owner may already have information along these lines, and mining maps, flood plain maps and seismic activity information are generally available. Look for release of damages provisions that waive the right to sue if there are surface impairments. Make sure that the property has not flooded in recent years, especially if it's near a stream, lake or low lying area. Flood plain maps are periodically updated, so current information is crucial.
  2. Environmental Impairments. Obviously, the presence of asbestos, petroleum products or other types of pollutants either in the improvements or subsurface will strongly influence value. Ensure that expert reports are brought current and provided to the appraiser. Reports should address costs of remediation, which can be used to argue that value should be reduced by the costs. Finally, keep in mind the need for confidentiality with respect to this information. See if the jurisdiction will agree not to duplicate reports and to return them after review.
  3. ADA Compliance. Even after 20 years under the Americans with Disabilities Act, many properties fail to comply with the act's provisions. The costs of compliance can be submitted as reason to reduce assessed value.
  4. Easements, Restrictions and Covenants of Record. Every jurisdiction that applies the fair market value standard recognizes that title restrictions, easements and covenants affect value and strongly influence market transactions. This is true not only of the subject property, but also of any property transactions cited by the assessor as comparable sales. Examples include use restrictions, size of the improvements, density, amenities and the accompanied assessments, curb cuts, traffic signals and other factors. Verify that your file includes current copies of such covenants, and that any appraiser is aware of these items.
  5. Personal Property Returns. Most large commercial buildings, malls and shopping centers have associated personal property that is critical to property operations. Yet the personal property tax return is often a forgotten part of the overall value of the property.

Personal property values are generally calculated based on the depreciated original cost method, so make certain that the useful life of the personal property is realistic. Also check to see that the tax return excludes property that has been discarded or is no longer on site. If the real estate is the subject of a recent sale, find out what dollar value was allocated to the personal property and if that number is consistent with the values the tax assessor is showing.

hdonovanHoward Donovan is a partner in the Birmingham, Ala. law firm of Donovan Fingar, LLC, the Alabama member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Mar
25

Don't Be Afraid to Protest Property Tax Assessments

"Analyze the costs and potential tax savings associated with an appeal to ensure that the protest makes economic sense... ."

By Gilbert D. Davila, Esq. - as published by Affordable Housing Finance - News Headlines Online, April 2010

Low-income housing tax credit (LIHTC) property owners must monitor their tax valuations without fail, especially given the current economic climate. When they receive their property tax assessments, owners should ask themselves the following questions:

Should I appeal?

LIHTC owners should familiarize themselves with valuation laws and the definition of market value in their taxing jurisdiction before deciding whether to appeal an assessment. Taxable value can hinge on how the assessor treats tax credits.

Analyze the costs and potential tax savings associated with an appeal to ensure that the protest makes economic sense. Most successful valuation appeals consist of attacking errors made by the assessor, so consider the time, resources, and documents that will be required to make an effective case.

Is my data correct?

Assessors' records frequently misstate a property's age, square footage, net leasable area, number of rental units, unit mix, and amenities. Such errors can significantly increase an assessment.

Providing a current rent roll and perhaps a site plan to the assessor can help to correct these common inaccuracies. Improving the accuracy of the assessor's records is the simplest path to a lower tax assessment.

How did the assessor arrive at my valuation?

Owners must question the assessor's approach to determining value and help the assessor appreciate the unique challenges facing LIHTC owners. The most common mistake an assessor will make when deriving an LIHTC property's market value is to treat the asset like a traditional multifamily complex.

The following are talking points to help property owners and their assessors to distinguish LIHTC properties from a typical apartment complex:

Restrictions: The Land Use Restriction Agreement (LURA) and LIHTC regulations limit the property's income potential, and penalties for violations are severe. Rental restrictions cap rent per unit at much lower rates than comparable conventional properties are able to charge. Resident restrictions increase vacancy risk and complicate marketing efforts.

Expenses: Overhead is higher for LIHTC owners because they must meet certain reporting, record-keeping, and documentation edicts beyond conventional practice. The median income growth rate dictates rental rates, so when expenses growing at the rate of inflation rise faster than median incomes, a property's net operating income can decrease.

Illiquidity: Tax credits come with many restrictions. An owner cannot sell, transfer, or exchange the property unless they obtain government approval and meet certain conditions. In addition, the LURA dictates who the property can be sold to, and the property's restrictions survive a sale. The income tax benefits associated with the tax credits expire after 10 years, but the transferability restrictions may continue for another 20 years. These factors make for an extremely illiquid asset especially in today's economic environment.

Intangible value: Tax credits are not a benefit attributable to the real estate and are thus intangible value that should not be a component of the market value assessment. Owners should be prepared to provide the assessor with a copy of the LURA for the property and argue that the unique characteristics of the LIHTC project warrant a deviation from conventional appraisal methods.

Did the assessor consider equality and uniformity? Most jurisdictions require that assessments among comparable properties be equal and uniform. The fact that assessors often value LIHTC properties without considering the assessment of like projects presents an additional opportunity for owners to argue for a reduced value.

A tax credit property should fall within a uniform range of values when compared with other LIHTC properties and not with conventional apartment projects. Owners should compare their property's assessment to other LIHTC properties on a square-footage basis. If an owner's property is assessed disproportionately higher, then the owner can argue for a value reduction based on equality and uniformity, regardless of the assessor's "market value" claims.

The decision to appeal a tax assessment can yield significant tax savings when owners ask themselves the appropriate questions, identify inaccuracies, and show assessors the error of their ways.

DavilaPhoto90Gilbert Davila is a partner with the Austin, Texas, law firm Popp, Gray & Hutcheson. The firm devotes its practice to the representation of taxpayers in property tax disputes and is the Texas member of the American Property Tax Counsel, the national affiliation of property tax attorneys. Davila can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Mar
08

Put a Lid on Tax Caps

"The tax cap is an old device that's found new life in these hard times..."

By Michael P. Guerriero, Esq., as published by Commercial Property Executive, March 2011.

The recession has left its mark on the budgets of state and local governments nationwide. Revenue shortfalls have forced states to slash their budgets and, oftentimes, withdraw state aid pledged to local governments.

Cities, towns and school districts are now forced to raise property taxes, their main (and sometimes only) revenue source. Struggling with escalating tax burdens, taxpayers cry out to their elected representatives to put a lid on the always rising local property tax and support property tax cap initiatives.

The tax cap is an old device that's found new life in these hard times. At the forefront of tax cap initiatives is newly elected Gov. Andrew Cuomo of New York, who proposes to limit the property tax dollars a school district can collect annually. The bill passed the New York State Senate and now must pass the State Assembly.

New York's bill caps tax growth at 4 percent or 120 percent of the inflation rate, whichever is less. School districts may exceed the cap with voter approval, but voters can impose an even stricter cap or bar increases entirely.

Roughly 40 states have some kind of property tax restriction. Arizona, Idaho, Kentucky, Massachusetts and West Virginia have a fixed cap of 5 percent or less. Colorado, Michigan and Montana limit growth to the inflation rate; while California, Illinois, Missouri, New Mexico, South Dakota and Washington limit growth to the lesser of a fixed percentage or the inflation rate.

Tax cap advocates say a cap forces school districts to cut wasteful spending while causing little to no harm.

Critics note that a cap simply slows down the rate of tax increases and does little to change the main drivers behind high property taxes. For example, caps cannot slow increasing costs for health care or fuel, nor do caps lessen demand for essential public services.

History has shown that tax caps simply shift the burden of funding schools to other sources, such as income tax, sales tax, fees and state aid. The bottom line is, a tax cap simply places a lid on the problem and kicks the can down the road for others to deal with.

GuerrieroPhoto_resizedMichael Guerriero is an associate at the law firm Koeppel Martone & Leistman LLP in Mineola, N.Y., the New York State member of American Property Tax Counsel (APTC), the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Feb
27

Why Inflated Tax Assessments Persist

"Under most states' property tax laws, your assessment should reflect the purchasing power of a typical buyer, not that of an extraordinarily well-capitalized investor..."

By Mark S. Hutcheson, Esq., as published by National Real Estate Investor, January/February 2011

With well-capitalized buyers driving transactions, assessors routinely overstate taxable property values. Real estate investment trusts (REITs) and insurance companies are big buyers of commercial real estate these days, and their advantage in the capital markets is driving up prices. In turn, assessors are using the price data generated from these sales to institutional buyers to produce inflated taxable values for commercial properties owned by less-capitalized investors.

Assessors typically value commercial real estate using a direct capitalization income approach by dividing the property's annual net operating income (NOI) by an overall capitalization rate. The NOI can be based on the trailing 12 months or projected over the next 12 months.

Determining a proper capitalization rate, however, is often more challenging. That's especially true in this economic environment. An overall cap rate reflects the relationship between a single year's net operating income expectancy and the total property price or value.

Crux of the problem
To determine cap rates, assessors usually look to sales of comparable commercial properties. Relatively weak transaction volume since the start of the recession, however, has forced assessors to extrapolate cap rates from the small number of transactions that have occurred.

These sales increasingly involve high-priced properties sold to well-capitalized institutions. Deal volume for assets priced at $25 million or more rose 126% for the first 11 months of 2010 compared with the same period in 2009, says Real Capital Analytics. From this data, assessors will likely derive cap rates that reflect the buying power of well-capitalized buyers and apply those rates to all investment-grade property.

REITs and insurers have access to particularly low-cost capital resources. Their strategy primarily has been to focus on acquisitions of large, core assets in major cities. Low-cost capital enables these investors to achieve greater returns on lower cap rates than average investors.

Insurers also have far lower default and delinquency rates on loans than other lender groups. The 60-day delinquency rate for commercial mortgages originated by life insurance companies was just 0.29% at mid-year 2010, reports the American Council of Life Insurers.

Compare that with loan delinquencies in commercial mortgage-backed securities at greater than 7%, according to credit rating agency Realpoint. Meanwhile, Real Capital Analytics pegs the commercial real estate loan delinquency rate for banks at 4.28%. Low delinquencies mean insurance fund managers are able to focus more on deploying capital and less on working out distressed assets.

Doing the math
Increasing acquisition volume by well-capitalized buyers gives assessors market data to support lower cap rates, as the following hypothetical example illustrates. LRG, a large insurance company, purchases an office building with a $650,000 NOI for $10 million, reflecting a 6.5% cap rate. SML, a small real estate investment firm, seeks to buy a comparable building across the street that also generates NOI of $650,000.

Due to SML's lack of capital and lower credit rating, the firm's debt structure on the deal is approximately 300 basis points higher than that of LRG. SML would need to purchase the property at an 8% cap rate to achieve the same return at 50% loan-to-value.

SML offers to purchase the building for a little more than $8 million. However, because this price is significantly lower than the LRG purchase price across the street, the seller backs out and the transaction never occurs.

Should the assessor use the 6.5% cap rate reflected by the LRG purchase, or adjust the rate to reflect what a more typical investor like SML might offer in the open market? This is the issue confronting assessors and those who represent property owners in ad valorem tax disputes.

Under most states' property tax laws, your assessment should reflect the purchasing power of a typical buyer, not that of an extraordinarily well-capitalized investor. A careful review of how the assessor arrived at both the value and the underlying cap rate is critical to ensure your property is fairly assessed.

MarkHutcheson140Mark S. Hutcheson is a partner with the Austin, Texas, law firm of Popp, Gray & Hutcheson LLP, the Texas member of American Property Tax Counsel. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Feb
25

Tax Relief for LIHTC Properties

"Because assessors cannot simply go out and look at properties and know that they carry LIHTC restrictions, the properties often sustain improperly high assessments..."

By J. Kieran Jennings, as published by Housing Finance - News Online - February 2010

Improperly assessed property taxes on a low-income housing tax credit (LIHTC) property can destroy its economic viability. LIHTC property owners can protect themselves from destructive taxation by understanding several key issues that lead to improper tax assessments. Additionally, owners can take some practical steps to maintain proper assessments in the future.

Unlike other real estate, the values of LIHTC projects generally do not vary greatly from year to year. Restrictions placed on rents and administrative costs often leave LIHTC actual market values so low that a small incremental difference becomes immaterial. Thus, if a project is fairly assessed, it should be able to remain fairly assessed over its contract period.

Property taxes for conventional multifamily housing projects typically comprise one of the largest expenses for an owner. However, because rents are reduced and operating expenses are higher, LIHTC properties labor under significantly tighter margins than most conventional properties. As a result, taxes can mean the difference between making debt service and feeding a property.

LIHTC developments include single apartment buildings, townhomes, single-family developments, and scattered single-family home sites. Many states are coming to a consensus, assessing projects using reduced contract rents and the higher operating expenses associated with LIHTC properties. However, a problem arises because LIHTC properties can take various different forms, making it difficult for an assessor to know, without additional information, whether a property is conventional or a LIHTC property.

Because assessors cannot simply go out and look at properties and know that they carry LIHTC restrictions, the properties often sustain improperly high assessments. This forces LIHTC taxpayers to challenge assessments each and every time they go through a reassessment. Thus, a continuous battle ensues, causing additional expenses to the taxing jurisdiction and the taxpayer.

A solution for this problem is within reach. It calls for putting in place a system that helps the assessor produce a fair assessment year after year. Such a system incorporates meeting with the assessor to present information that indicates the LIHTC nature of the property. The presentation also needs to include the project's financial statements and the Land Use Restriction Agreement (LURA), all of which provide the necessary information to assist assessors in initially establishing a fair assessment. The taxpayer should work with the assessor to ensure that the property card, database, and tax bill are labeled as LIHTC.

Similar to property tax abatements, this labeling should be maintained throughout the LURA period. By employing the same mechanisms as used in abatements, an assessor can flag a property for the remaining years in the LURA period, allowing the tax authorities to identify and properly assess LIHTC properties across time.

Establishing a long-term workable solution for LIHTC assessments contemplates some compromises. In the case of property owners, this means sharing financial information with the assessors. Many property owners show some reluctance to provide assessors with income and expense information. They should not resist sharing financials because LIHTC properties' income potential is typically reduced due to the restrictions, and that income provides the basis for the tax authority to establish a fair assessment.

Taxing authorities also have to compromise. In order not to fight over assessments throughout the life of a LIHTC project, assessors need to accept the fact that LIHTC properties have a certain level of economic obsolescence.

The obsolescence can be quantified by examining the value of the property under the LURA and the value as if it were a conventional property. For example, if a LIHTC property is worth $600,000 under the LURA and $1 million as a conventional property, then it suffers from a 40 percent obsolescence factor. Therefore, the assessor can simply reduce the value of the property by 40 percent when reappraising it and continue to do this for the life of the LURA.

No system is perfect, but if parties can agree to a long-term assessment formula, budgets should be closer and disagreements fewer, allowing for economic sustainability for taxpayers and proper assessments by assessors.

KJennings90J. Kieran Jennings is a partner in the law firm of Siegel Siegel Johnson & Jennings, the Ohio and Western Pennsylvania member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Feb
18

Tax Law Changes Threaten California Property Owners

"In recent years, state and local governments have become more aggressive in their efforts to identify ownership changes in entities holding real property..."

By Cris K. O'Neall, Esq., as published by National Real Estate Investor City Reviews, February 2011

As California struggles through its economic downturn, local tax authorities are looking for ways to increase tax revenues. And property owners may not be aware of the tough penalties they could face if they fail to quickly report changes in ownership.

Most California property owners know that changes in ownership result in property tax reassessment under Proposition 13, and such reassessments are typically triggered when a transfer deed is recorded.

What may surprise some taxpayers is that changing the ownership of a legal entity that holds the real property may also trigger a reassessment. This occurs even if the property-owning entity, such as a corporation, remains the recorded owner of the underlying real property.

Legal entity transfers have long been a concern for California tax authorities. Real property transfers caused by a change in an entity's ownership are not documented by a recorded deed, which is the normal manner in which tax assessors learn of property ownership changes. In this circumstance, tax authorities must look to state franchise tax returns and business property filings to discover ownership changes affecting real property.

In recent years, state and local governments have become more aggressive in their efforts to identify ownership changes in entities holding real property.

Previously, it was up to the tax authorities to identify those changes and provide taxpayers with the appropriate reporting forms. Last year, tax authorities upped the ante considerably — giving property owners the job of reporting legal entity transfers within strict deadlines and removing the tardy reporting "grace" period.

Delays in reporting can trigger consequences

Now owners who fail to report transfers quickly are subject to significant penalties on all of their California properties, even if only one property changed ownership as a result of a legal entity transfer.

Additionally, the revised law requires reporting of ownership changes even in cases where the transfer falls under a change of ownership exception. Those exceptions include transfers of less than a controlling interest in a legal entity, and transfers in which the type of entity changes, say from a corporation to a limited partnership, but the owners and their ownership percentages remain the same.

In effect, the revised law penalizes the failure to file the requisite reporting form, regardless of whether there has been a change in ownership of the underlying real property.

More tax liability?

If the above did not already cause enough headaches, local tax authorities have added to property owners' burdens by attempting to expand another California tax — the documentary transfer tax (DTT) — to include legal entity transfers.

Traditionally, the DTT has only been collected upon the recording of a deed or similar instrument transferring a property's ownership. In fact, the DTT is usually understood to be an excise tax on the right to transfer property and use county recorder services.

This view has recently changed as Los Angeles County and other local jurisdictions seek to bring legal entity transfers where no document is recorded within the purview of the transfer tax law. They have been aided in their discovery of such transfers by statutory changes which give county recorders access to the records of county assessors' offices.

As a result, county recorders' offices now have access to legal entity transfer information which was once only available to county assessors. Armed with this new information, counties and cities are seeking to charge transfer taxes on entity transfers where no deed has been recorded.

Fortunately, property owners can repel attempts by county recorders and city clerks to collect transfer tax. Most counties and cities have ordinances adopting California's statewide statute regulating the issue.

That statute, with one limited exception relating to dissolution of partnerships through a legal entity transfer, only permits collection of DTT when a deed or other instrument is recorded. Property owners confronted with a request for payment of the tax for a legal entity transfer need only point to the local ordinance in order to parry the unlawful attack.

So long as California remains in its economic downturn, the local tax authorities will continue to be vigilant in looking for ways to increase tax revenues. And real property owners would do well to report legal entity transfers promptly to avoid draconian penalties.

Fortunately, efforts are under way to eliminate the harsh effects brought about by the recent changes in legal entity transfer reporting. As for the documentary transfer tax, property owners should only pay that tax on transfers made by a recorded document. And, as with every transfer of real property in California, property owners should consider whether their transfer falls under one of the exceptions to a change in ownership in order to avoid reassessment.

 

CONeallCris K. O'Neall specializes in ad valorem property tax matters as a partner in the Los Angeles law firm of Cahill Davis & O'Neall LLP, the California member of American Property Tax Counsel, the national affiliation of property tax attorneys. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Feb
07

Technology Advances - Property Taxes Retreat

"Businesses today have greater difficulty than ever before in predicting future space needs as business requirements and market conditions change rapidly. Federal, state and local laws and regulations, too, have become unpredictable..."

By Terry Gardner, Esq., and Stephen H. Paul, Esq., as published by The Leader, January/February 2011

Technological advances are rapidly altering the way corporations use commercial real estate, and recognizing these fundamental shifts can have a profound effect in efforts to reduce property taxes.

Our world changed at an incredible pace in the last 100 years, and those changes have accelerated in the 21st Century. As one technology enthusiast observed in 1999, "From 1946 until now, if the automobile had been improved as much as the computer has been improved, you'd have a car that would go a million miles an hour and cost a penny!"

There was little telecommuting 10 years ago, when the average cubical size ranged from 50 to 75 square feet and the BlackBerry was the latest fad in a mobile technology industry still in its infancy. Corporate campuses with sprawling Frank Lloyd Wright-style buildings were the norm. Today those edifices of expansive glass, with their inefficient angles and giant atriums, are considered too expensive to maintain and are becoming the exception rather than the rule.

Technology and the commercial real estate boom that ended in 2007 have combined to fuel a dramatic shift in the use of commercial space from the aesthetic to the practical. Companies realize that every dollar saved by a more efficient use of real estate not only makes them more environmentally responsible, but also goes directly to the bottom line.

The New Workplace

At Indianapolis-based health benefits provider WellPoint, more than 6,000 associates work from home, and as with many other businesses, that number is increasing daily. Most of these associates almost never need to come into the office. At least 1.4 million square feet of commercial office space would be required to house these 6,000 associates. Most of the space once occupied by these telecommuters has been or will soon be returned to the landlord.

Today, preferred venues for companies like WellPoint are square or rectangular in shape, utilize a central core and are easy to maintain. More efficient space design and better technology are changing the physical layout and proportions of the workspace itself, as well. Innovations such as flat screen monitors replacing the cumbersome CRT monitors of old have decreased cubicle sizes to as little as 35 square feet, but have driven up parking requirements to five or six spaces per 1,000 square feet of leased space.

In addition to work-at-home programs, other alternative workplace strategies including hoteling, desk sharing, and more have all come of age. Space once used to provide each individual with a large cubicle or enclosed office is rapidly becoming obsolete.

Businesses today have greater difficulty than ever before in predicting future space needs as business requirements and market conditions change rapidly. Federal, state and local laws and regulations, too, have become unpredictable. As a result, lease flexibility is now a fundamental requirement for many tenants. Lease terms are shorter and often come with enhanced termination and contraction options.

The need for less space, evolution of lease terms, and collapse of the capital markets have led to a substantial loss in value for commercial real estate. But for parties responsible for paying property taxes, this dark cloud has a silver lining in the form of a significant opportunity to reduce the assessed value of real estate in most markets.


Economic factors affecting value

A property's value is driven not merely by the inherent qualities of the asset itself, but also by market factors. The Appraisal Institute, the recognized leader worldwide in real estate appraisal education, has identified four predominant and interdependent influences on property values, rooted in fundamental economic principles of supply and demand. Those are utility, scarcity, desire, and effective purchasing power.

Utility and scarcity weigh in on the supply side of the equation as the ability of a property to satisfy users' needs and desires, in context with the anticipated supply of properties relative to demand. Desire and effective purchasing power are on the demand side, and take into account individual wants beyond essential needs, and the market's ability to pay for property. By looking at these four influential factors, it's easy to see how property values have suffered from evolving appetites for office space and from the recent trends in lease terms and the capital markets.

For example, properties with atriums and other large open spaces are expensive to heat, cool, and maintain. Such features provide little utility, and a surplus of these properties exists on the market. Pair that surplus with a decreasing desire in the market for large expanses of unusable space, and the value of these properties declines.

Or, take into account the increasingly strong position tenants command to negotiate favorable contraction and termination provisions in leases. Clearly, this trend is a reflection of both the surplus of space in the market and a general inability or unwillingness to pay a higher price for unusable property or be compelled to accept less favorable terms.


Translating market influences into assessment reductions

In order to understand how these market dynamics translate into reduced property tax assessments, economic factors influencing value should be viewed within the context of the accepted approaches to property value. The predominant methodologies are the cost approach, sales comparison, and income capitalization.

The first of these approaches to value generally focuses on the replacement cost of the improvements, assigning value upon examining the cost of developing similar structures. This value is adjusted to account for the property's age, condition, and usefulness. The latter point is where inefficient designs come into play as elements of functional or economic obsolescence.

Functional obsolescence refers to the loss in utility resulting from factors that would make it difficult to modify the property for a particular use. Building characteristics tending to contribute more to the aesthetic than to the practical enter into this calculation of functional obsolescence. Enormous atriums, indoor gardens, arboreta, and water features, as well as odd angles and unique architecture, often trace to the preferences of a one-time, build-to-suit tenant and detract from the building's usefulness to subsequent tenants.

Most cost approach values are based on replacement cost, or the cost to substitute an asset of similar size and use but with contemporary materials and design. Because an assessment on the basis of replacement cost doesn't contemplate reproduction of an exact replica, unusable space is excluded from the calculation and results in a lower value.

The public's appetite for sprawling improvements that are distinctively designed and aesthetically pleasing has yielded in the last decade to desires for efficiency and simplicity. To the extent that the property owner can show that tastes have changed in the market, these inefficient design characteristics can demonstrate economic obsolescence, which occurs because of factors outside of the property itself and also reduces the property's value.

The sales comparison approach entails an analysis of sales and listings of similar properties to arrive at an assessed value for a property. The comparable sales used in this analysis should be adjusted to account for variances between the comparables and the property being assessed, including (in some states) the terms of leases on the property. If the comparable sales selected involve inefficient designs that have become abundant on the market and for which the market's desire is dwindling, the comparable sale prices should indicate a reduced willingness to pay a high price for such property.

Sales comparison analysis should employ the most recent sales of similar properties. This way, the sales also reflect latest real estate market trends.

For income-producing property, the income capitalization approach will likely reflect the decreased utility of, and demand for, an inefficiently designed building. Under this approach, property value is assessed by capitalizing annual net operating income. Recent lease activity should reveal terms favoring tenants, as well as increased market vacancy, softening rental rates, and tenant preferences for smaller and simpler designs.

In the case of property encumbered by long-term leases, comparable properties with more recent leases may be reliable indicators of the property's current income-producing capability.

Each approach should reveal that technological and market shifts reducing the utility of oversized, inefficient space, as well as the market's desire to pay for such space, have reduced the taxable value of many commercial properties. Technology is changing ever more rapidly in the 21st Century, and taxing jurisdictions should be open to consider such evidence for its impact on reducing values.

PaulPhoto90_BW Stephen H. Paul is a partner in the Indianapolis law firm of Baker & Daniels LLP, the Indiana member of American Property Tax Counsel. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..
The authors thank Fenton D. Strickland of Baker & Daniels for his contribution to this article.
TGardnerTerry Gardner is Corporate Real Estate Director for WellPoint Inc., an industry-leading healthcare benefits provider headquartered in Indianapolis, Ind.
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Jan
27

Start That Property Tax Review Today

"First compare your 2010 value to what you think the fair market value should be."

By Raymond Gray, Esq., as published by Commercial Property Executive Blog - January 2011

It may seem odd to be thinking about commercial property tax appeals in January. Yet now is the best time to begin, particularly in Texas, which has an annual reassessment cycle and where the system works quickly and rewards those who prepare early. No matter where you are, however, advance preparation will usually pay off.

First compare your 2010 value to what you think the fair market value should be. This will give you an idea of what to expect for 2011. Review appraisal district records and determine whether assessors are using the income, cost, or sales comparison approach to value.

Follow these key points to keep your review on target.

Seven Simple Steps:

  1. Know the deadlines for administrative appeals, litigation and payment of taxes.
  2. Verify that the taxing records for your property are correct (square footage, net rentable, classification, zoning, etc.)
  3. Diligently reconstruct the income and expense statement to remove non-realty income. This will insure that non-taxable intangible assets, such as business value, are not part of your taxable value.
  4. Do not assume that the purchase price is equal to property tax value, whether for a new acquisition, or when reviewing the assessor's comparable sales.
  5. Determine whether your property is being taxed fairly in comparison to the competition. Newly purchased or recently constructed properties often are taxed at a higher value than the competition.
  6. Consider whether your annual operating statement reflects the market as of the valuation date. Most states value property as of a certain date.
  7. Consistently review the performance of your property tax consultant.

The sooner this work is completed the more options you will have available. Start now and you have the time to hire the right tax counsel — and they'll have the time to do a great job.

RaymondGray154x231pxRGray Raymond Gray is a partner with the Austin, Texas, law firm of Popp, Gray & Hutcheson L.L.P., which focuses on property tax disputes and is the Texas member of the American Property Tax Counsel. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Jan
19

Finding Relief - How Co-Tenancy Clauses Can Be a Property Tax Benefit

"It is incumbent upon the taxpayer, tax counsel and appraisers to show local assessors how these clauses affect the real estate's valuation..."

By Linda Terrill, Esq., as published by Commercial Property Executive, January 2011

Co-tenancy clauses have become a two-edged sword for commercial property owners. Originally a tool that landlords used to obtain a multi-year lease commitment, co-tenancy clauses typically reduce a tenant's rent if a key tenant or tenants leave or if overall occupancy drops below a certain level. Some cotenancy clauses permit tenants to terminate a lease without penalty.

Today, a co-tenancy clause may detract from the property's value and even compound vacancy problems. Retail stores have been closing at unprecedented rates due to bankruptcies or underperformance. Many retailers have put new leases or construction on hold. In the office market, vacancy rates continue to set new highs and absorption rates are more frequently described as "negative."

For many of these properties, the terms of the lease, rather than the income stream, may define the property's value. Since co-tenancy clauses have the potential to shorten the lease term or otherwise reduce the income stream, co-tenancy should be central to a property tax appeal.

It is incumbent upon the taxpayer, tax counsel and appraisers to show local assessors how these clauses affect the real estate's valuation.

Tenets of Co-tenancy
Co-tenancy clauses are most common in retail properties but have become more prevalent in office buildings. Most fall into one of three timeframes: The first is during the letter of intent phase, during the lease-up phase of a retail project, when a potential tenant's plan to occupy a space is affirmed. The second period is after the lease has been signed but prior to move-in; the third spans the duration of the lease term. Most real estate tax appeals will involve fully developed properties and, therefore, co-tenancy agreements associated with the lease term. Landlords and tenants have negotiated co-tenancy clauses for a number of reasons, and the more clout the tenant has, the more likely the lease will have co-tenancy provisions.

Yet, it has also become more commonplace for smaller retail tenants to negotiate such provisions, particularly if they selected the leased space in order to be in the same center as another tenant that provides foot traffic and has the potential to drive up sales. Smaller office tenants, by contrast, may have a business relationship with the flagship tenant. In those cases, the smaller business may negotiate provisions to reduce rent or terminate the lease early if the flagship tenant quits doing business at the location.

Boost to Tax Appeals
How can a co-tenancy clause assist an owner in a tax appeal? Consider the following example: A significant national retailer occupies 40 percent of a lifestyle shopping center. The lease has one year left, with three five-year renewal options.

The center is fully leased, and all of the other tenants have co-tenancy lease clauses. Some enable the tenant to terminate the lease if the national retailer ceases to do business at that location; others give tenants the right to terminate the lease if vacancy exceeds 50 percent. Alternatively, the clauses adjust tenant rent from a fixed rate to a percentage of sales in the event that the national retailer closes or vacancy crosses the 50 percent mark.

In measuring the effect on value, the first step is to determine whether the national tenant is likely to renew. If the tenant does not want to disclose their business plan for the location, demographics may suggest what that plan entails. For example, are there rising unemployment, rising home foreclosures or declining incomes in the market area? How are the tenant's sales figures? If sales and foot traffic are down, research the national market to see if this retailer has any announced plans to shutter underperforming locations. This information is crucial to making a case based upon the continued viability of the lease.

In this example, if the national tenant were to leave, the effect of the co-tenancy clauses could domino and the center could go from 100 percent occupied to dark in short order. As each tenant leaves, more of the responsibility to cover operating expenses and property taxes shifts to the owner. In some cases, the income stream will not be sufficient to cover debt service.

The best way to demonstrate to the assessor what all this means is to have the property appraised by a competent, experienced appraiser. At a minimum, the taxpayer's counsel should provide the assessor with an extensive lease abstract for each tenant. That abstract should include not only the terms of the lease and the rents to be received but also whether or not there are any lease provisions that could shorten the lease terms, reduce the rental rate and/or otherwise shift previously reimbursed expenses to the property owner. Any of those eventualities will reduce the value of the property.

TerrillPhoto90Linda Terrill is a partner in the Leawood, Kan., law firm Neill, Terrill & Embree, the Kansas and Nebraska member of American Property Tax Counsel, the national affiliation of property tax attorneys. She can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Jan
07

Tax Data Reveals Plunge in Atlanta Commercial Property Values

"As of November 2010, 99.1% of appeals from the 2008 tax year had been resolved. For the 2009 tax year, 79.1% of appeals had reached a resolution; while only 16.4% of the cases from the 2010 tax year had been resolved...."

By Lisa Stuckey, Esq., as published by National Real Estate Investor-Online/City Reviews, January 2011

As in many U.S. markets, most property owners in Atlanta believe that commercial real estate values in the local market have been declining, and that the declining trend will continue. What is less clear to taxpayers and taxing entities is the severity of value losses and whether property taxes have come down to a corresponding degree.

An analysis of Atlanta-area commercial property valuations and property tax appeals in years past was conducted to determine if, indeed, the perceived drop in property values has occurred, and if so, what effect that drop had on property taxes. Possible new trends can also be extrapolated from the data.

LStuckey_graph

Measuring loss: Which yardstick?
A review of commercial property sales tracked by CoStar Group confirms that asset values have declined since 2008. Yet the degree of decline varies depending on whether the data are broken down by the number of properties or by square foot.

On a per-unit basis, sale prices for multifamily, retail, office, industrial, healthcare, flex, hospitality and specialty properties in Atlanta-area zip codes fell 25% from the beginning of 2008 through the start of 2010. Looking at those same property types on a per square foot basis, it appears that values fell 15%. Taking those results together, we can say that commercial values have decreased by 15% to 25%, or about 20% on average, from Jan. 1, 2008 to Jan. 1, 2010.

The pool of commercial tax parcels in the city of Atlanta has remained fairly constant over the past three years. The number of commercial parcels in the city was 16,347 for tax year 2008, 16,280 for tax year 2009, and 16,184 for tax year 2010.

Appeals fluctuate
In 2008, 5,069 property owners in Atlanta filed tax appeals, representing approximately 31% of all commercial properties. For tax year 2009, the number of appeals filed by taxpayers fell to 2,087, or approximately 13% of all commercial properties; the number of appeals increased to 3,467 for tax year 2010, representing approximately 21% of the commercial properties.

One possible and likely explanation for the marked decrease in the number of appeals filed from tax year 2008 to tax year 2009 is that Fulton County mailed assessment notices for the revaluation of all commercial properties for tax year 2008. That gave city of Atlanta taxpayers the opportunity to file appeals from the notices. However, for tax year 2009, the County did not issue widespread assessment notices. Only taxpayers who received notices were informed enough to file returns of their opinion of value with the tax assessors and, thereby, were assured of receiving assessment notices from which to appeal.

As of November 2010, 99.1% of appeals from the 2008 tax year had been resolved. For the 2009 tax year, 79.1% of appeals had reached a resolution; while only 16.4% of the cases from the 2010 tax year had been resolved.

In cases from the 2008 tax year, resulting valuations averaged 30% less value than the original assessments. In the 2009 appeals, the average reduction in value was 25%. The few cases resolved from the 2010 tax year brought down the original assessments by an average of 29%.

Clearly then, Atlanta property values as well as Atlanta property taxes have dropped. On a weighted average basis across the three years, assessments reflect a reduction of approximately 30%.

In spite of the inherent limitations of analysis with many appeals still waiting for resolution, the available data from concluded appeals shows a clear trend: A significant number of commercial property owners in the Atlanta area have achieved substantial valuation reductions in the past three years.

New rules kick in
Under a change to state law effective in tax year 2011, which began on January 1, county taxing authorities will send notices of assessed property values to all Georgia taxpayers for each tax year. With this change to the law, property owners will no longer be required to file a return of their opinion of their property value with the county tax assessor in order to receive an assessment notice from which to appeal.

Based on an examination of the past years' data, it appears that approximately 16,000 assessment notices will be mailed to commercial property owners in Atlanta. Judging from recent trends, anywhere from 15% to 30% of those assessments will be appealed.

If the current trend of reductions in property values continues, then it is also to be expected that the filed appeals will result in valuation decreases for tax year 2011 as well.

LStuckey_web90Lisa Stuckey is a partner in the Atlanta, GA law firm of Ragsdale, Beals, Seigler, Patterson & Gray, the Georgia member of American Property Tax Counsel, the national affiliation of property tax attorneys. She can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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