This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives. STORAGE NAME: h1151.ECC DATE: 3/11/2023 HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: HB 1151 Financial Improvements to Real Property SPONSOR(S): Amesty TIED BILLS: IDEN./SIM. BILLS: SB 810 REFERENCE ACTION ANALYST STAFF DIRECTOR or BUDGET/POLICY CHIEF 1) Energy, Communications & Cybersecurity Subcommittee Keating Keating 2) Local Administration, Federal Affairs & Special Districts Subcommittee 3) Ways & Means Committee 4) Commerce Committee SUMMARY ANALYSIS In 2010, the Legislature provided specific authority for local governments to create Property Assessed Clean Energy (PACE) programs to provide up-front financing for certain qualifying improvements. Under these programs, property owners may apply to the local government for funding to finance a qualifying improvement and voluntarily enter into a financing agreement with the local government. “Qualifying improvements” include energy conservation and efficiency improvements, renewable energy improvements, and wind resistance improvements to existing facilities. Property owners finance qualifying improvements through a non-ad valorem assessment on their property. Local governments determine whether to offer a residential or commercial PACE program, whether to administer the program directly or through a for-profit or not-for-profit administrator, or any combination thereof. The bill makes several changes to Florida’s PACE law, including: Expanding the types of improvements eligible for PACE financing; Modifying the requirements for commercial property to be eligible for PACE financing, including the addition of a requirement for mortgage holder consent; Providing that a PACE financing agreement on commercial property may be executed before a certificate of occupancy or similar evidence of substantial completion of new construction or improvement is issued; Authorizing progress payments, or payments made before completion, for commercial property; Limiting fees imposed on PACE assessments on commercial property; and Authorizing the use of PACE financing on government property leased for commercial uses. The bill provides for prospective application only. The bill does not appear to impact state revenues or state or local expenditures. The bill may have an indeterminate impact on local government revenues. See Fiscal Analysis & Economic Impact Statement. The bill has an effective date of July 1, 2023. STORAGE NAME: h1151.ECC PAGE: 2 DATE: 3/11/2023 FULL ANALYSIS I. SUBSTANTIVE ANALYSIS A. EFFECT OF PROPOSED CHANGES: Current Situation Property Assessed Clean Energy (PACE) Programs Generally, Property Assessed Clean Energy (PACE) laws enable local governments to establish programs to provide financing for certain qualifying improvements on real property which reduce energy consumption and increase energy efficiency. PACE allows individual property owners to contract directly with qualified contractors for energy efficiency and renewable energy projects. The local government issues revenue bonds and uses the proceeds to provide initial project funding, which bonds are repaid by non-ad valorem assessments on participating property owners’ tax bills. 1 PACE programs are active in 30 states plus Washington D.C., but only California, Florida, and Missouri offer residential PACE programs. 2 PACE in Florida In 2010, the Legislature provided specific authority for local governments to create PACE programs. 3 The law 4 provides supplemental authority to local governments 5 concerning qualified improvements to residential and non-residential real property. The law provides that if a local government authorizes a PACE program, property owners may apply to the local government for funding to finance a qualifying improvement and voluntarily enter into a financing agreement with the local government. 6 “Qualifying improvements” include energy conservation and efficiency improvements, renewable energy improvements, and wind resistance improvements to existing facilities. 7 At least 30 days before entering into the financing agreement, the property owner must provide notice to any mortgage holder or loan servicer of the intent to enter into the agreement, the maximum amount to be financed, and the maximum annual assessment required to repay the amount. 8 The law provides that an acceleration clause for “payment of the mortgage, note, or lien or other unilateral modification solely as a result of entering into a financing agreement … is not enforceable.” 9 However, the mortgage holder or loan servicer may increase the required monthly escrow by an amount necessary to pay annually the qualifying improvement assessment. The law authorizes a local government to provide and finance qualifying improvements, levy a non-ad valorem assessment to fund a qualifying improvement, incur debt to provide financing for qualifying improvements, and collect costs incurred from financing qualifying improvements through a non-ad valorem assessment. These non-ad valorem assessments are senior to existing mortgage debt, 10 so if the homeowner defaults on their mortgage or goes into foreclosure, the delinquent PACE assessment payments may be recovered before the mortgage. Current law also specifies that a PACE program may be administered by a for-profit entity or a not-for-profit organization on behalf of and at the discretion of the local government. 1 For more information, see http://www.pacenation.org and http://floridapace.gov/ (last visited Mar. 5, 2023). 2 California offers residential PACE financing for improvements related to electric vehicle charging, infrastructure, energy efficiency, renewable energy, seismic strengthening and water efficiency. Missouri offers PACE financing for improvements related to energy efficiency and renewable energy. Additionally, Maine offers residential programs without holding a lien against properties. See PACE Nation, PACE Programs https://www.pacenation.org/pace-programs/ (last visited Mar. 5, 2023). 3 Ch. 2010-139, Laws of Fla. 4 S. 163.08, F.S. 5 Section 163.08(2)(a), F.S., defines the term “local government” to mean a county, a municipality, a dependent special district as defined in s. 189.012, or a separate legal entity created pursuant to s. 163.01(7) (the Florida Interlocal Cooperation Act).” 6 S. 163.08(4), F.S. 7 S. 163.08(2)(b), F.S. 8 S. 163.08(13), F.S. 9 S. 163.08(15), F.S. 10 See ss. 125.01(1)(r), 170.01 and 170.09, F.S. STORAGE NAME: h1151.ECC PAGE: 3 DATE: 3/11/2023 In 2012, the Legislature expanded the definition of “local government” to allow a partnership of local governments formed pursuant to the Florida Interlocal Cooperation Act 11 to enter into a financing agreement wherein the partnership, as a separate legal entity, imposes the PACE assessment. 12 Before entering into a financing agreement, the local government must reasonably determine that: All property taxes and other assessments on the property are paid and have not been delinquent for the preceding 3 years (or the property owner’s period of ownership, if less than 3 years); There are no involuntary liens on the property, including, but not limited to, construction liens; No notices of default or other evidence of property-based debt delinquency have been recorded during the preceding 3 years (or the property owner’s period of ownership, if less than 3 years); and The property owner is current on all mortgage debt on the property. 13 The total assessment cannot be for an amount greater than 20 percent of the just value of the property as determined by the county property appraiser, unless consent is obtained from the mortgage holders. 14 Consideration of the property owner’s ability to repay the assessment is not required. In Florida, local governments typically have multiple non-exclusive agreements with a number of PACE providers. Generally, PACE providers are private companies that administer the local government’s PACE program on behalf of the local government and provide funding from private sources. PACE providers generally act as the program administrator for special districts created pursuant to an interlocal agreement between two or more Florida local governments. Once the PACE district is created, additional counties or municipalities may join the special district as members, authorizing the PACE provider for the special district to administer PACE programs on behalf of the newly joined members. 15 PACE providers generally maintain a list of approved contractors authorized to provide qualifying improvements. 16 For example, Broward County authorizes the following PACE providers: 17 Counterpointe Energy Solutions administers a commercial PACE program for the Florida PACE Funding District. Berkadia administers a commercial PACE program the Florida Renewable Energy District. CleanFund administers a commercial PACE program for the Florida Renewable Energy District. Dividend Finance administers the “Dividend” Program for the Florida Renewable Energy District. FortiFi Financial administers a residential PACE program for the Florida PACE Funding Agency District. Greenworks Lending administers a commercial PACE program for the Florida Resiliency and Energy District. Lever Energy Capital administers a commercial PACE program for the Florida Resiliency and Energy District. Home Run Financing administers a residential PACE Program for the Florida PACE Funding Agency District. Rahill administers a commercial PACE program for the Florida Resiliency and Energy District. 11 S. 163.01(7), F.S. 12 Ch. 2012-117, Laws of Fla. 13 S. 163.08(9), F.S. 14 S. 163.08(12)(a), F.S. 15 See, e.g., Green Corridor Property Assessed Clean Energy (PACE) District Town of Cutler Bay, Florida Financial Report for the Fiscal Year Ended Sept. 30, 2020, at 13, https://flauditor.gov/pages/specialdistricts_efile%20rpts/2020%20green%20corridor%20property%20assessment%20clean%20energy %20(pace)%20district.pdf (last visited Mar. 5, 2023). 16 See, e.g., Sarasota County, PACE, https://www.scgov.net/government/uf-ifas-extension-and-sustainability/pace (last visited Mar.5, 2023). 17 Broward County, Property Assessed Clean Energy (PACE) https://www.broward.org/Sustainability/Documents/PACEProviderList_2022.pdf (last visited Mar. 5, 2023). STORAGE NAME: h1151.ECC PAGE: 4 DATE: 3/11/2023 Renew Financial administers PACE programs under the “RenewPACE” Program (residential and commercial) for the Florida Green Finance Authority. Structured Finance Associates administers a commercial PACE program for the Florida Resiliency and Energy District. Twain Financial Partners administers a commercial PACE program for the Florida Renewable Energy District. Local governments may choose whether to offer a residential or commercial PACE program, whether to administer the program directly or through a third-party PACE provider, or any combination thereof. PACE financing interest rates vary but are typically higher than traditional financing. 18 Interest rates and fees for a project are set by the PACE provider when the agreement is finalized with the property owner. 19 Costs incurred by a local government are collected as part of a PACE assessment. 20 Further, PACE assessments must be collected pursuant to s. 197.3632, F.S., which provides in part that tax collectors are entitled to receive a commission, on behalf of each special assessment district, of the actual costs of collection, not to exceed 2 percent, on the amount of special assessments collected and remitted. 21 Federal Housing Finance Agency and Super-Priority Liens In 2010, and again in 2014, 22 the Federal Housing Finance Agency (FHFA) directed mortgage underwriters Fannie Mae and Freddie Mac not to purchase mortgages of homes encumbered by a first- lien PACE loan due to its senior status above a mortgage. Under normal circumstances, real estate lien priority is established by the order in which the liens are filed. 23 According to the FHFA, such super-priority liens increase the risk of losses to taxpayers. Fannie Mae and Freddie Mac support the housing finance market by purchasing, guaranteeing, and securitizing single-family mortgages. Therefore, mortgages supported by Fannie Mae and Freddie Mac must remain in first-lien position, meaning they have first priority in receiving the proceeds from the sale of a property in foreclosure. Although FHFA generally supports energy retrofit financing programs, FHFA acknowledges that such programs should be structured to ensure protection of the core financing for the home. 24 18 The Balance, How PACE Loans Work, https://www.thebalancemoney.com/pace-loans-financing-for-upgrades-4124071 (last visited Mar. 5, 2023). 19 See PACE Broward, Frequently Asked Questions, https://www.broward.org/Climate/Documents/PACE%20Broward%20FAQ%20Sheet_Update6_09272021.pdf (last visited Mar. 5, 2023). 20 S. 163.08(4), F.S. 21 Id.; ss. 197.3632(8)(c) and 192.091(2)(b)2., F.S. It is not clear if the costs incurred by a local government include the commissions that tax collectors are authorized to receive. 22 Federal Housing Finance Agency, FHFA Statement on Certain Energy Retrofit Loan Programs (July, 6, 2010), http://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Statement-on-Certain-Energy-Retrofit-Loan-Programs.aspx (last visited Mar. 5, 2023). See also Federal Housing Financial Agency, Statement of the Federal Housing Finance Agency on Certain Super Priority Liens (December 22, 2014)(“FHFA wants to make clear to homeowners, lenders, other financial institutions, state officials, and the public that Fannie Mae and Freddie Mac’s policies prohibit the purchase of a mortgage where the property has a first-lien PACE loan attached to it”) http://www.fhfa.gov/Media/PublicAffairs/Pages/Statement-of-the-Federal-Housing-Finance-Agency-on-Certain-Super-Priority- Liens.aspx (last visited Mar. 5, 2023). 23 “Real estate liens generally are ordered so that prior liens are paid in foreclosure before liens filed later in time. For example, a mortgage loan used to buy the property takes priority over a later mortgage loan used to remodel the home. The earliest and thus highest priority mortgage loan is known as a first lien, while the subsequent mortgage loan is deemed a second lien. If the homeowner defaults on the second lien loan, the first lien mortgage holder retains the lien even if the second lien mortgage holder forecloses; however, the converse is not true. Tax assessments are an exception to this lien priority rule. Generally, unpaid property tax assessments have priority over other liens, regardless of the date the prior liens were recorded or when the tax assessments became delinquent. This makes the lien priority for PACE financing senior to liens for mortgage loans closed prior to the homeowner’s acceptance of the PACE financing. In the case of default by the homeowner on the PACE assessment, local governments and investors in PACE bonds can expect to collect the balance owed on a PACE assessment before any recovery by a mortgage lender.” Prentiss Cox, Keeping PACE? The Case Against Property Assessed Clean Energy Financing Programs, 83 U. Colo. L. Rev. 83, 94 (2011), https://scholarship.law.umn.edu/faculty_articles/549 (last visited Mar. 5, 2023). 24 FHFA Statement on Certain Energy Retrofit Loan Programs, supra, note 20. STORAGE NAME: h1151.ECC PAGE: 5 DATE: 3/11/2023 This restriction has two potential implications for borrowers. First, a homeowner with a first-lien PACE loan may not refinance their existing mortgage with a Fannie Mae or Freddie Mac mortgage. Second, anyone wanting to buy a home that already has a first-lien PACE loan cannot use a Fannie Mae or Freddie Mac loan for the purchase. These restrictions may reduce the marketability of the house or require the homeowner to pay off the PACE loan before selling the house. 25 Additionally, in December 2017, the United States Department of Housing and Urban Development announced that the Federal Housing Administration will no longer insure new mortgages on properties that include PACE assessments, citing concerns about the potential for increased losses to the Mutual Mortgage Insurance Fund resulting from the priority lien status given to such assessments. 26 Some residential PACE programs are now operating with loan loss reserve funds, appropriate disclosures, or other protections meant to address FHFA's concerns. 27 For example, in 2013, California created a reserve fund to compensate first mortgage lenders in case of a foreclosure or a forced sale attributable to a PACE loan. Additionally, Oklahoma and Vermont have passed legislation to downgrade PACE from senior lien to junior lien, and there have been attempts by Congress to revise residential PACE programs at the federal level, including the 2014 PACE Assessment Protection Act. 28 Consumer Protection Consumer issues have surrounded the PACE programs from their inception. 29 These include the cost of funding, contractor sales techniques (notably, responding to a limited homeowner problem and marketing a full house retrofit), rolling the administrative fees for the local government into the PACE loan amount, product sales at above market interest rates, workmanship issues, inadequate disclosures, and indiscriminate lending regardless of ability to repay. 30 An administrator of residential PACE programs in California and Florida recently settled with the Federal Trade Commission and California to address complaints that the administrator recruited and authorized contractors, without adequate training or oversight, to sell its financing, leading to many consumers being deceived during the sales process and being unfairly subjected to liens on their homes without their express, informed consent. 31 In response to these consumer issues, Congress amended the Truth in Lending Act in 2018 to direct the Consumer Financial Protection Bureau to implement federal regulations which provide more effective consumer protections relating to PACE loans, especially those related to the ability of a homeowner to repay the loan. 32 The United States Department of Energy maintains “best practice guidelines” for residential PACE financing programs, which includes measures relating to: 25 FHFA Statement on Certain Energy Retrofit Loan Programs, supra, note 20. 26 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020). 27 Commercial PACE programs were not directly affected by FHFA’s actions because Fannie Mae and Freddie Mac do not underwrite commercial mortgages. 28 NCSL, PACE Financing https://www.ncsl.org/research/energy/pace-financing.aspx (last visited Mar. 7, 2021). 29 “PACE loans, offered through home improvement contractors, often in door-to-door sales, and secured by a property tax lien, are collected through a property tax assessment that takes priority over any existing mortgage. PACE programs must be authorized by state and local governments, but are privately run with little or no government oversight. Over the last two years, there has been a sharp increase in homeowners seeking assistance from legal services and other organizations in relation to PACE loans. The goal of improving home energy efficiency is being overshadowed by the lack of adequate consumer protection for these loans. Weak PACE loan regulation enables contractors to saddle homeowners with debt they cannot afford and puts their homes at risk for foreclosure.” National Consumer Law Center, Advocates Applaud CFPB’s Intention to Deal with PACE Loan Program Abuses (Mar. 4, 2019), https://www.nclc.org/media-center/advocates-applaud-cfpbs-intention-to-deal-with-pace-loan-program-abuses.html (last visited Mar. 5, 2023). 30 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020). 31 Federal Trade Commission, FTC, California Act to Stop Ygrene Energy Fund from Deceiving Consumers About PACE Financing, Placing Liens on Homes Without Consumers’ Consent, https://www.ftc.gov/news-events/news/press-releases/2022/10/ftc-california-act- stop-ygrene-energy-fund-deceiving-consumers-about-pace-financing-placing-liens (last visited Mar. 5, 2023). 32 FHFA, Property Assessed Clean Energy (PACE) Program, 85 Fed. Reg. 11,2738 (Jan. 16, 2020). See also Public Law 115–174 (2018), section 307; codified at 15 U.S.C. 1639c(b)(3)(C). and Bureau of Consumer Financial Protection, Advance Notice of Proposed Rulemaking on Residential Property Assessed Clean Energy Financing, 84 FR 8479 (Mar. 8, 2019). STORAGE NAME: h1151.ECC PAGE: 6 DATE: 3/11/2023 Establishing financial eligibility and verifying property ownership; Confirming property-based debt, tax assessments, and property valuation; Reviewing property owner income and debt obligations; Establishing consumer and lender protections; Establishing property owner education and disclosures; Providing a right to cancel the purchase; Determining appropriate minimum equity requirements and appropriate maximum assessments; Providing equipment specifications and energy assessments; Defining the relationship between PACE assessments and mortgage financing; Providing for non-acceleration upon property owner default; Notifying mortgage holders of record; and Addressing the needs and potential vulnerabilities of low-income and elderly households. 33 Some local governments in Florida have implemented more stringent consumer protections than those required by Florida law. 34 Effect of the Bill Uses for PACE Financing The bill expands the types of improvements eligible for PACE financing to add the following: Energy conservation and efficiency improvements necessary to achieve a sustainable building rating or compliance with a national model green building code. Resiliency improvements, including creation of sea walls, creation or improvement of stormwater, flood, and wastewater management, and any other improvements necessary to achieve a sustainable building rating or compliance with a national model resiliency standard. The bill also authorizes PACE financing to be used as a refinance tool. Further, the bill authorizes PACE financing to be used for wind-resistant improvements on new construction for property other than residential property. Eligibility Requirements for PACE Financing The bill modifies the existing eligibility requirements for commercial property 35 as follows: Delinquency in payment of property taxes or other assessments on a property during the preceding 3 years do not preclude the use of PACE financing if such taxes and assessments are current. Involuntary liens on a property do not preclude the use of PACE financing if not greater than $10,000. Recorded notices of default or other evidence of property-based debt delinquency during the preceding 3 years do not preclude use of PACE financing if released during that time. Further, the bill requires that, prior to entering into a PACE financing agreement with a commercial property owner, the local government must have the written consent of the current holders or servicers 33 Department of Energy, Best Practice Guidelines for Residential PACE Financing Programs (Nov. 18, 2016), https://www.energy.gov/sites/prod/files/2016/11/f34/best-practice-guidelines-RPACE.pdf (last visited Mar. 5, 2023). 34 See, e.g., Palm Beach County, Ord. No. 2017-012, Section 6. Disclosure Requirements https://discover.pbcgov.org/resilience/PDF/PACE_ORDINANCE_2017-012%20-%20ADA%20Compliant.pdf (last visited Mar. 5, 2023). 35 The bill defines “commercial property” to mean real property not defined as residential property which will be or has been improved by a qualifying improvement, including, but not limited to, the following: a multifamily residential property composed of five or more dwelling units; a commercial real property; an industrial building or property; an agricultural property; a nonprofit-owned property; a long-term care facility, including nursing homes and assisted living facilities; or a government commercial property. STORAGE NAME: h1151.ECC PAGE: 7 DATE: 3/11/2023 of any mortgage that encumbers or is otherwise secured by the property (or that will be secured by the property at the time the PACE financing agreement is executed by the local government). The bill does not change the eligibility requirements for residential property. 36 The bill does not require mortgage holder consent for residential PACE financing. Timing and Fees for Commercial PACE Financing For qualifying improvements to commercial property, the bill provides that a PACE financing agreement may be executed before a certificate of occupancy or similar evidence of substantial completion of new construction or improvement is issued. Further, the bill provides that progress payments, or payments made before completion, are allowed for commercial property if the property owner, upon request for a final progress payment, subsequently provides written verification that the qualifying improvements are completed and operating as intended. The bill provides that a PACE assessment on commercial property is subject to a maximum annual fee of 1 percent of the annual assessment collected or $5,000, whichever is less. PACE Financing on Government Commercial Property The bill defines “government commercial property” to mean real property owned by a local government and leased to a nongovernmental lessee 37 to be used as commercial property. The bill provides that a PACE financing agreement for government commercial property must be executed by the nongovernmental lessee with the written consent of the governmental lessor, with evidence of this consent provided to the local government operating the PACE program. The PACE financing agreement with the nongovernmental lessee must provide that the lessee is the only party obligated to pay the PACE assessment. The bill specifies that a delinquent assessment under a PACE financing agreement with a nongovernmental lessee of government commercial property must be enforced in the same manner as other taxes and assessments on such lessees. Other Provisions The bill provides that it is prospective only and does not affect or amend any existing PACE assessment or interlocal agreement between local governments. B. SECTION DIRECTORY: Section 1. Amends s. 163.08, F.S., relating to supplemental authority for improvements to real property. Section 2. Provides an effective date of July 1, 2023. II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE GOVERNMENT: 1. Revenues: None. 2. Expenditures: 36 The bill defines “residential property” to mean a residential real property of four or fewer dwelling units which will be or has been improved by a qualifying improvement. 37 The bill defines “nongovernmental lessee” to mean a person or an entity other than a local government which leases government commercial property. STORAGE NAME: h1151.ECC PAGE: 8 DATE: 3/11/2023 None. B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 1. Revenues: Indeterminate. The bill limits annual fees for PACE assessments on commercial property to the lesser of 1 percent or $5,000. Current law allows local governments to collect their costs to administer PACE financing as part of the PACE assessment. It is not clear whether these costs include the commission that tax collectors are entitled to receive by law to cover the actual costs of collection, not to exceed 2 percent, on the amount of special assessments collected and remitted. Depending on the rate or amount of fees actually collected under current law for PACE assessments on commercial property, the bill may impact local government revenues. 2. Expenditures: None. C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: By expanding eligible uses for PACE financing, easing terms for commercial property PACE financing, and authorizing PACE financing for government commercial property, the bill may result in expanded use of PACE financing by residential, commercial, and government commercial property owners. In turn, private PACE providers may earn additional revenues on PACE loans. However, as a condition of PACE financing for commercial property, the bill requires consent of the holders or servicers or any mortgage that encumbers the property. This provision may moderate growth in PACE financing for commercial property. D. FISCAL COMMENTS: None. III. COMMENTS A. CONSTITUTIONAL ISSUES: 1. Applicability of Municipality/County Mandates Provision: Not applicable. The bill does not appear to require counties or municipalities to spend funds or take action requiring the expenditures of funds; reduce the authority that counties or municipalities have to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or municipalities. 2. Other: None. B. RULE-MAKING AUTHORITY: The bill does not require or authorize rulemaking. C. DRAFTING ISSUES OR OTHER COMMENTS: The bill expands the types of projects on residential real property that are eligible for PACE financing but does not address consumer issues that have surrounded the use of PACE financing for residential real property. IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES STORAGE NAME: h1151.ECC PAGE: 9 DATE: 3/11/2023