President Trump finally announced his Tax Reform Plan on November 2. The reduction of corporate tax rates and the lowering of individual tax brackets for high income earners has received the most attention from the media.  But those of us in real estate were anxious to see if the president and Speaker Paul Ryan would follow through on all of their promises to change some sacred cow real estate provisions of the Tax Code.

Not long after President Trump took office, I wrote of some of the potential changes that many experts expected would be included in the Trump plan (see post HERE) regarding real estate. The experts weren’t far off.  I don’t want to discuss the entire tax reform plan, only those provisions dealing with real estate.  The most obvious provision is the mortgage interest deduction.  From the beginning, President Trump said that he would not eliminate this popular deduction.  Instead of eliminating the deduction, the Trump plan preserves the deduction, but it reduces the cap for married couples for mortgages worth $1,000,000 to $500,000.  This reduction would apply to new mortgages only.  Existing mortgages would be exempt.  I suppose the intent was to allow homeowners to keep a tax break that they had when they bought a new home but the effect is that the cap reduction will be a disincentive to home buyers, particularly in areas where home costs are high.

The mortgage interest deduction will not apply to second or vacation homes. Many will argue that this eliminates a tax break on the wealthy.  But the elimination of this deduction has potential to greatly affect the real estate market.  It will put numerous people out of the second home market completely which will depress property values in many places.  Second-home communities (think beach towns and mountain communities) will suffer economically with out the seasonal influx of second home/vacation home owners.

The Trump plan makes it more difficult for homeowners to get the capital gains exemption on their primary residence. Existing law allows you to exempt up to $250,000 of capital gains ($500,000 for married couples filing jointly) if you have lived in your primary residence for 2 of the past 5 years.  The Trump plan will lengthen the time requirement to 5 out of the previous 8 years.  This will provide many homeowners another disincentive from moving further depressing the re-sale market.

The proposed Trump plan retains the deduction for state and local property taxes up to $10,000 but eliminates the deduction for state and local sales and income taxes. Not only will residents of high tax states be hurt by the elimination of the latter deduction, so will owners of income producing property all over the country.

The Trump plan eliminates the deduction for moving expenses. This deduction only applies if you are required to move for a new job or a transfer for an existing job.  While the elimination of this deduction is unlikely to affect most peoples’ decision whether to sell their home and move, it does make the cost of a move more costly and could affect a buyer’s decision on how much to spend on the new purchase, or whether to purchase at all.

The Low Income Housing Tax Credit has been retained under the new plan. Unfortunately, other changes in the Trump plan effectively gut the LIHTC.  Nearly half the new low income housing development is done with private activity bonds.  These tax exempt municipal bonds are scrapped under the Trump plan.  The other half of low income housing development is financed on the tax credit program.  They will become more expensive as tax rates go down because tax credits will worth less.  Some experts predict that over 80,000 fewer new affordable housing units will be constructed next year if the Trump plan is passed.

The president made no changes to 1031 exchanges or in changing the rules regarding deductability of capital expenditures which many experts had predicted would be part of tax reform. However, as the real estate president, maybe we should not be surprised as Mr. Trump has used both provisions in his years as a real estate entrepreneur.

The real estate president has made some surprising tax reform proposals that could have some very adverse affect to the housing market. If passed, housing prices could fall significantly while not immediately attracting new buyers.

There will be a long battle in Congress over tax reform. Despite President Trump’s and Speaker Ryan’s desire to pass the legislation before the end of the year, we are likely to see lengthy debate and multiple amendments.  Already, the Senate has announced its own plan which keeps the mortgage interest deduction and the deduction for state and local income taxes.  It is not only unlikely that tax reform will achieve bi-partisan support, but it is obvious that it dos not have full Republican support.  So, as changes are made, it will be interesting for us to see how the provisions pertaining to real estate continue to evolve.

When President Trump announced that the US would withdraw from the Paris Climate Accord last week, he said that we as elected “to represent the citizens of Pittsburgh, not Paris”. Pittsburgh Mayor Bill Peduto immediately rebuked the president in a Tweetstorm.  “As the mayor of Pittsburgh, I can assure you that we will follow the guidelines of the Paris Agreement, for our people, our economy & future”.  Mayor Peduto, it turns out, is not alone.

As of June 3, 187 mayors have pledged to ignore President Trump’s climate changing policies and will adopt the Paris Climate Accord for their cities. Many Florida mayors have joined this pledge including Mayors Tomas Regaldo of Miami, Phillip Levine of Miami Beach, Josh Levy of Hollywood, Jack Seiler of Ft. Lauderdale, Jeri Muoio of West Palm Beach, Buddy Dwyer of Orlando, Bob Buckhorn of Tampa, Rick Kriseman of St. Petersburgh and Andrew Gillum of Tallahassee.  The group, the Mayors National Climate Action Agenda or the “Climate Mayors”, had previously announced that they would not enforce any executive order which would roll back Obama administration policies regulating energy production or reducing emissions.  The new statement adopts the Paris Accord and pushes for strong climate action.

In addition to the Climate Mayors, a group of 30 mayors, 3 governors, 80 university presidents and 100 business leaders intends to submit a plan to the United Nations, pledging to meet US green house gas emission targets in the Paris Accord, despite the US withdrawal. Michael Bloomberg is leading the efforts of this initiative.  Mayor Bloomberg says that this plan will assure that everything that the US committed to in the Accord will be met and, in many cases, exceeded.

For the last 2 years, California Governor Jerry Brown has been negotiating with state and local governments to sign a “sub-national climate pact” to agree to even higher standards than the Paris Agreement. Following last week’s announcement, Governor Brown said “California will resist”.  Along with the governors of New York and Washington, Governor Brown is seeking to establish a coalition of states committed to upholding the Paris Accord.  Meanwhile, the California Legislature is working to go further.  The California Senate recently passed a bill which would require state utility companies to obtain 100% of its electricity from renewable sources by 2045.

It is unfortunate that President Trump chose to make this monumental announcement at the start of the hurricane season. It is a double whammy for those of us in South Florida as we begin to commemorate the 25th anniversary of Hurricane Andrew.  Of course, those who survived Andrew, Wilma, Katrina and other hurricanes, as well as Sandy and the countless floods and tornadoes of the last 25 years should be particularly concerned.  I have written about sea-level rise before (see HERE, HERE and HERE). Local governments are making strong efforts to combat the effects of climate change.  The US withdrawal from the Paris Accord is unifying state and local leaders to take leading roles in combatting the causes of climate change.  This is might be the only positive result of the president’s decision.  But hopefully, it will encourage the president to reverse course.  The US should be leading the battle against climate change.

President Trump is scheduled to make a big announcement about his tax plan later this week. No details have been released, but the president’s tweets about the announcements have been filled with his trademark superlatives.  One thing is for certain.  The Trump tax plan will affect real estate.  The question is, however, whether the real estate developer in chief’s proposals will benefit the real estate industry.  Signals, so far, indicate that they will even though such moves might be contrary to the president’s own tax policy.

The biggest issue affecting real estate is the mortgage interest deduction. President Trump has stated several times that he does not intend to eliminate this popular deduction for business or for homeowners.  For homeowners, supporters of the deduction have always argued that it is designed to encourage homeownership by making the cost of homes more affordable.  However, the opposite is true.  The deduction targets the wealthy who are already homeowners and, it is regressive.  It does not reach low and moderate income workers.  The National Low Income Housing Coalition supports reducing the tax break from $1,000,000 to $500,000 and changing the deduction to a credit.  This would allow 15 million more low and moderate income borrowers to get a tax break.

On the business side, the White House has also signaled that it is considering changing the rules regarding expensing (deductibility) of capital expenditures. The tentative proposal would allow the immediate expensing of capital expenditures.  Coupled with the continuance of deductibility of mortgage interest, this would allow double dipping.  A borrower could borrow large sums of money for capital improvements and deduct 100% of the cost of the improvements that same year instead of depreciating the cost over the life of the improvements.  And, the borrower could deduct the interest over the life of the loan as paid.  the cost to the federal budget under this plan would be staggering and contrary to all of the president’s stated budgetary goals.

Another real estate tax provision which could be changed in the Trump proposal, but so far, has not been discussed, is the provision allowing for “active” real estate investors to offset real estate losses against other income. President Trump has been very successful at this strategy according to the 1995 tax returns that were released to the press late last month.  Elimination of this provision would have a net positive affect on the budget.

Finally, the president has not commented on the future of 1031 like-kind exchanges. This is popular method used by real estate developers and investors which allows the deferrals of capital gains upon the sale of real property by substituting a new property upon the sale of a property.  real estate love it.

Tax reform is not an easy job. There is so much more to is than politicians and the media want us to believe or allow us to understand.  More importantly, it is so much more than setting tax rates and debating whether to continue capital gains tax.  To have meaningful tax reform, the president and Congress must look at the entire tax code and put aside their own self interests.  While selfishly, I would love to make real estate the best place to invest money from a tax stand point, it would be foolish and naïve to think that creating a separate code for real estate investors is best for our overall economy.

The Dodd-Frank Act has many critics. Though supporters would argue that it has been successful on many fronts, a hotly debated area is the Consumer Finance Protection Bureau (CFPB).  Led by Director Richard Cordray, the CFPB has a broad role.  It is charged with protecting consumers in the financial sector.  This includes everything from banks to pay day lenders, from credit cards to securities firms.  The CFPB has returned more than $11 Billion to consumers since its creation and helped to unravel the Wells Fargo fraudulent account scam.

However, Republicans have been critical of the CFPB in general and Director Cordray in particular. Senator Ben Sasse (R-NE) and Senator Mike Lee (R-UT) have called on President Trump to fire Director Cordray immediately.  The Trump Transition Team has signaled an intent to do so.  The senators believe that, despite the success of the agency in returning funds to consumers, the Director and the CFPB have not been accountable to the public or to Congress.   Perhaps that is because the Dodd-Frank Act provides that the director reports directly to the president.  He serves a 5-rear term, expiring July, 2018, and can only be removed for cause.

Neither the senators nor President Trump have articulated their justification for calling for the firing of Mr. Cordray. While there is a recent DC Court of Appeals ruling holding that the CFPB’s structure is unconstitutional because the director can’t be terminated, should the president take action prior to an appeal, a battle with Senate Democrats is sure to arise.  Senators Elizabeth Warren (D-MA), Chuck Schumer (D-NY) and Sherrod Brown (D-OH) announced in a joint conference call last week that they will do every thing they can to prevent the president from dismissing Director Cordray.  Senator Schumer says, there is no cause.

Clearly, the first battle of the new administration in consumer finance is shaping up. Dodd-Frank has many flaws that can be fixed.  But firing the director will not solve the problems, nor will be a total dismantling of the law or disregarding the safeguards which were put in to the law to protect against the politicization of consumer protections.  We can’t solve these important issues by posting these at risk in the middle of a political war.

Many in the real estate industry were cautiously optimistic following the election of Donald Trump on November 8. For the first time, a real estate titan will occupy the Oval Office and Mr. Trump, it has been argued, will be good for real estate.  His policies should favor our industry.  For example, Mr. Trump has campaigned against Dodd-Frank, promising to repeal the law.  He has promised to roll back government regulation of the financial industry allowing banks more freedom to make loans.  And, he has promised to cut taxes.

        The immediate impact following Mr. Trump’s election has been record high closings on the stock exchanges.  Investors seem to be encouraged by the possibilities ahead.  However, the opposite seems to be happening with mortgage rates.  Since election day, mortgage rates have been slowly climbing.  30-year fixed rate mortgages were, on average on election day, 3.57%.  But, just last week, the average 30-year fixed rate mortgage was advertised at 4.03%, the highest since July of 2015.  While this rate is still historically low, the trends indicate that rates will continue to climb for the foreseeable future.  Rates are climbing despite the fact that the President Elect has yet to announce any new or concrete economic proposals or spending cuts.  The markets are simply reacting to campaign promises and rhetoric.

         What is likely to happen following inauguration day?  Bond rates have also been climbing since election day.  10-year treasury notes have risen from 1.85% to 2.24% in the week following the election.  This causes rates to rise and experts expect these rates to continue to rise.  Additionally, the Federal Reserve continues to suggest that it will raise its rates at an upcoming meeting.  This will also affect mortgage rates.  After inauguration, we can expect mortgage rates to continue to tick up as a result of these factors.   Unless Mr. Trump makes a radical change in policies, the trend will continue.

        In the short term, buyers will scramble to close on new homes quickly, hoping to catch rates while they remain low.  But, as rates increase, homes will become less affordable for buyers and sales will begin to slow.  By the end of 2017, some predict that housing inventory will begin to increase and prices will begin to fall.

        The first real estate president will have a great influence on our industry.  But it may not be what we have expected.  It might be negative.  Rate increases and severe tax cuts could lead to rising inflation.  It might not simply be higher mortgage rates that we have to worry about.  The residential sector should begin to brace.

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    Welcome to Assouline & Berlowe’s Florida Real Estate Law and Investment Blog with news, insights, and commentary for investors, developers, and their advisors.


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