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First Quarter 2016

First Quarter 2016

Jan. 15, 2016

The Appraisal Institute’s Washington Report and State News quarterly e-newsletter is intended to summarize AI’s recent federal and state legislative, regulatory and related activities in representing the interests of Designated members, Candidates for Designation, Practicing Affiliates and Affiliates. 

ON THE HILL                                                                                

The midway point of the 114th Congress was marked with the signing into law on Nov. 10 of HR 2029, legislation that provides for $1.15 trillion omnibus spending and a $680 billion tax break extension. Several sections or provisions of the law impact real estate and valuation.
Proponents of conservation won a significant victory with the permanency of the conservation easement tax credit, which is used by farmers, ranchers and others to preserve land and natural resources. The tax credit will be applied retroactively to Jan. 1, 2015. Additionally, the new law reauthorizes the Land and Water Conservation Fund for three years and increases its funding from $306 million to $450 million. This program is the largest source of appraisal assignments relating to federal land acquisition. 
The law’s numerous real estate-related provisions also include long-sought reforms to the Foreign Investment in Real Property Tax Act of 1980 and an extension of the EB-5 regional center investment program — both of which will help attract more foreign investment into job-creating infrastructure and real estate projects in the U.S. The tax extenders portion of the bill also extends some 50 expired or soon-to-expire tax provisions, including some governing leasehold improvement depreciation, energy efficiency and the low-income housing tax credit. 
On Dec. 3, President Obama signed into law a highway authorization bill that includes an amendment to the Gramm-Leach-Bliley Act that positively impacts real estate appraisers. 
Under the amendment, financial institutions are no longer required to provide annual privacy notices to consumers unless there has been a change in the institution’s privacy policies or the institution shares nonpublic personal information with outside parties for marketing purposes. Real estate appraisers, by extension, were included in the definition of “financial institution” under the final rule implementing the GLB Act. 
Since implementation of the GLB final rule, many real estate appraisers have included general privacy notices in appraisal reports, mostly out of caution and potentially pursuant to contractual agreements with clients. It’s worth noting that GLB privacy notice requirements apply to appraisers when there is a “customer” or “consumer” relationship — such as when a property owner hires an appraiser for litigation or tax support. Generally, such privacy notice obligations have not existed with bank requirements unless they were borne out of contractual obligation. In other words, the new law removes requirements for appraisers to provide privacy notices when engaged directly by consumers. 

IN THE AGENCIES                                                                       

The Federal Deposit Insurance Corporation, the Federal Reserve and the Office of the Comptroller of the Currency on Dec. 18 issued a statement to reinforce prudent risk-management practices related to commercial real estate lending.
The agencies noted substantial growth in many CRE asset and lending markets, increased competitive pressures, rising CRE concentrations in banks and an easing of CRE underwriting standards. The statement served as a reminder to financial institutions to maintain underwriting discipline and exercise prudent risk-management practices to identify, measure, monitor and manage risks arising from CRE lending. The statement reinforces existing guidance for CRE risk management and contains a table that lists interagency regulations and guidance related to CRE lending activities.
Appraisal Institute professionals should pay close attention to the statement, as Designated members, given their training and resources, are in a special position to assist regulated financial institutions. AI recommends that appraisers doing work for regulated financial institutions pay special attention to market analysis and include appropriate disclaimers in appraisal reports. In addition, AI encourages appraisers to review AI Guide Note 12, Analyzing Market Trends and take the Advanced Concepts and Case Studies course
The Appraisal Institute and a coalition of valuation organizations on Nov. 27 jointly submitted a letter to federal banking regulators asking them to maintain the current appraisal threshold levels for which real estate appraisals are required in order to safeguard lending practices.
The organizations noted that “increasing the appraisal threshold levels could have a negative impact on safe and sound real estate lending practices, as it likely would prompt many banks to significantly reduce attention to collateral risk management.” The letter also stated that the last time the issue of a threshold increase was raised, no stakeholders favored an increase. 
Federal banking regulators are looking at the appraisal threshold level as part of a major review of regulations under the Economic Growth and Regulatory Paperwork Reduction Act. Community banks have made raising the threshold a major priority, testifying in Congress and during EGRPRA field hearings in Washington in December. 
Still, the issue runs much deeper than it initially appears. Some banks are looking to avoid a fundamental risk management process in large sectors of the real estate market, not only because of an inability to find qualified appraisers or the cost of the appraisal itself, but because of the increased burdens surrounding the appraisal and the appraisal license. Like appraisal service providers, institutionally employed appraisers face numerous compliance obligations in maintaining — and even obtaining — their licenses to prepare appraisals and appraisal reviews. From a practice, licensing and management standpoint, this process has become extremely complicated and convoluted for banks.
All the calls for avoidance sheds light on the regulatory structure, pointing strongly to a need for modernization. Regulatory relief should be advanced not just for banks, but for appraisal professionals who are progressively being boxed into a corner by rule and regulatory obligations. The current push to opt out of the appraisal process is one more indication of the need for a fresh look at the appraisal regulatory structure and the need to identify more efficient and effective systems and operations. 
Federal bank regulators reviewing the Economic Growth and Regulatory Paperwork Reduction Act have opened up for comment the safety and soundness portion of the act. The Appraisal Institute drafted an official comment to regulators requesting that current appraisal threshold levels be maintained and is asking AI professionals to support this position by cutting and pasting the official comment into the regulator’s comment portal along with their contact information. 
The Appraisal Institute in a Dec. 1 letter to the U.S. Department of Housing and Urban Development regarding its proposed rule on the disposition of its single-family properties, encouraged the use of appraisals while cautioning against expanding valuation methods to include such alternatives as unregulated broker price opinions and automated valuation models.
“We believe any property disposition program utilized by HUD should require at least one independent appraisal,” AI stated in its letter. Doing so “not only helps protect taxpayers from distressed sales below market value, but local communities from having properties ‘dumped’ on the market at below market prices. Quality appraisals are absolutely essential if HUD plans to reduce the inventory of single-family properties in a manner that minimizes losses to the Mutual Mortgage Insurance Fund and protects local communities.”
Additionally, AI encouraged HUD to obtain two value opinions from appraisers, one for market value and one for the property’s liquidation value. AI noted that doing so would “help the agency understand the range of risk exposure to the agency, with the liquidation value helping to illustrate the worst case scenario. Such services would provide cost-effective alternatives to less credible services such as BPOs and AVMs. If HUD is not utilizing them today, we urge the agency do so before turning to less credible alternatives.” AI publishes a Liquidation Value Addendum that can be used by valuation professionals in this situation.
A rule that took effect Dec. 21 stipulates that anyone owning a small unmanned aircraft of a certain weight must register it with the Federal Aviation Administration's Unmanned Aircraft System before it’s operated outdoors. Individuals who previously operated their UAS must register by Feb 19. Failure to register could result in civil and criminal penalties. 
Owners using their UAS for hobby or recreation will only have to register once and may use the same ID for all their model UAS. However, the online registration system does not yet support registration of small UAS used for any purpose other than hobby or recreation. The FAA is working to address drone use for business, and rules are expected to be released this spring. 
The Appraisal Institute, in an April 2015 letter to the FAA, said it sees drones as being of considerable use to valuation professionals who could use them to access difficult to reach areas on a structure or property, make remote structural measurements and market appraisal services, to name a few.
The Consumer Financial Protection Bureau on Oct. 15 released its final rule on the Home Mortgage Disclosure Act (Regulation C). For the first time, the final rule raises the specter of HMDA enforcement in the area of valuation, as values relied upon in credit decisions will be reported as part of HMDA compliance.
Specifically, the rule requires the reporting of the value relied upon by the financial institution in making the credit decision as part of the HMDA reporting framework. The final rule clarifies if a financial institution relied on an appraisal or other valuation of a property when calculating the loan-to-value-ratio, then that value will be reported. Likewise, if a financial institution relied on the purchase price of a property when calculating the loan-to-value ratio, then the purchase price will be reported as the property value. 
In an October 2014 comment letter to the CFPB, the Appraisal Institute asked the CFPB to include any type of valuation in the disclosure requirement for the value relied upon, whether the value came from an appraisal, an automated valuation model or a broker price opinion. AI stated that failure to include any type of valuation might create an incentive for financial institutions to avoid appraisals, which are developed using uniform standards by practitioners who have completed specific valuation education.
The Federal Housing Finance Agency on Dec. 15 released a proposed rule that would require Fannie Mae and Freddie Mac to submit plans for improving the distribution and availability of safe and sound residential mortgage financing in underserved markets. 
Under the rule, the government-sponsored enterprises would be required to submit three-year draft plans detailing their planned activities and objectives for manufactured housing, affordable housing preservation and rural housing.
Discussion of appraisals is included within the proposed rule, mostly highlighting steps that the GSEs have taken in recent years to clarify the seller servicer guidelines relating to rural appraisals.
The U.S. Department of the Treasury on Jan. 7 released notice on the Community Development Financial Institution Bond Guarantee Program, which supports lending by providing guarantees for bonds issued for eligible community or economic development purposes, as authorized by the Small Business Jobs Act of 2010. 
Through the CDFI Bond Guarantee Program, the secretary of the Treasury makes debt available to CDFIs from the Federal Financing Bank. The loans provide long-term capital previously unavailable to CDFIs, and injects new and substantial investment into the nation's most distressed communities. 
Within the program, appraisals are required for certain collateral, including real estate, leasehold interests, fixtures, machinery and equipment, movables stock valued in excess of $250,000 and contracted revenue stream from non-Federal creditworthy counterparties. Secondary Loan collateral shall be valued using the cost approach, net of depreciation, and shall be required for the following: accounts receivable, machinery, equipment and movables and fixtures.
STANDARDS SETTERS                                                               
The Financial Accounting Standards Board on Nov. 23 issued a proposal intended to clarify the definition of a business and provide further guidance to assist preparers in evaluating whether a transaction would be accounted for as an acquisition of an asset or a business. 
Currently, the Statement on Financial Accounting Standard 141(R), Business Combinations contains a relatively broad definition of a business, where the acquisition of a single investment property qualifies as a business combination and requires immediate expensing under U.S. Generally Accepted Accounting Principles, rather than over the life of the acquired asset. Valuations are commonly prepared, in part, for this analysis. 
Initial reaction to the proposal by valuation service providers working in this area is that valuations will remain in use and will see very little change. Accountants are still expected to require valuations to allocate for the various components of the business, and they can capitalize closing costs and will not have to contend with items such as goodwill. Comments on the proposal are due Jan. 22. 
The Global Standards Steering Committee of the National Council of Real Estate Investment Fiduciaries, Pension Real Estate Association, INREV and ANREV on Oct. 29 released the first document relating to its global reporting standards project. 
The “NCREIF PREA Reporting Standards and INREV Guidelines: Broad Comparison 2015,” highlights the most important differences between the INREV Guidelines and the NCREIF PREA Reporting Standards and proposes ways to make them better aligned. The report is based on a study prepared by Deloitte NL and focuses on five areas of convergence: definitions, fees and expense ratios, reporting, valuation and NAV and fair value accounting. Two projects currently are underway that should help converge global reporting standards. 
Relative to valuation, the report notes that there are no major differences between the INREV Guidelines and the NCREIF/PREA Reporting Standards in terms of the frequency and providers (internal/external) of property valuations. However, the NCREIF/PREA Reporting Standards include more detailed requirements than the INREV Guidelines, although the latest revision of the INREV Guidelines has reduced these differences through the inclusion of additional clarifications and requirements.
IN THE STATES                                                                            
The Appraisal Institute’s Florida government relations leaders and staff met with the Florida Real Estate Appraisal Board in both October and December to discuss the possibility of the FREAB allowing state-licensed and state-certified appraisers to utilize standards of valuation practice other than the Uniform Standards of Professional Appraisal Practice when performing non-mortgage lending, non-federally related appraisal assignments. 
A similar meeting was held with the Montana Board of Real Estate Appraisers on Dec. 9. 
As a result of the meetings with the FREAB, a rulemaking proceeding will commence in early 2016, and all stakeholders will have input into the development of rules allowing for the use of alternate valuation standards. In Montana, the next steps have not yet been finalized. 
The Appraisal Institute opposes Assembly Bill 1381, which currently is under consideration by the California Assembly Business and Professions Committee and would require the Office of Real Estate Appraisers to adopt regulations requiring applicants for a real estate appraiser credential to complete courses on valuing sustainable real estate assets as part of their qualifying education.
The bill also would require OREA to adopt new regulations that would require existing credential holders to complete continuing education on the valuation of sustainable real estate assets during each four-year continuing education cycle. 
AI opposes the legislation on the grounds that it would stifle an appraiser’s ability to take continuing education that may be more meaningful to their practice than what’s mandated and because AI feels that such education may not be required for every licensed or certified appraiser in California. Additionally, requiring continuing education on sustainable real estate assets during each four-year cycle may result in appraisers receiving the same information multiple times. 
Illinois Gov. Bruce Rauner on Dec. 7 signed SB 2039 into law, authorizing the Illinois Department of Financial and Professional Regulation to make payment of up to $330,000 to the Appraisal Subcommittee for National Registry fees. 
Due to political infighting between the Governor and leadership of the Illinois General Assembly, the state has been without a budget since July 1. As a result, the IDFPR did not have the legal authority to forward to the ASC payment of the National Registry Fees that were collected from appraisers during the 2015 license renewal period. If the payment wasn’t authorized, Illinois appraisers could have been removed from the National Registry and would not have been available to provide appraisal services for federally related transactions. 
The Louisiana Real Estate Appraisers Board on Dec. 8 completed an administrative hearing regarding I Mortgage Services, LLC, an appraisal management company that allegedly failed to follow that state’s law regarding the determination and payment of customary and reasonable fees. 
The complaint alleged that the AMC failed to pay appraisers within 30 days as required by Louisiana law. 
After hearing 13-and-1/2 hours of testimony, the LREAB concluded that I Mortgage Services did fail to follow the rules and regulations for determining reasonable and customary fees, but did pay the invoices within the required time period. The LREAB penalized the AMC with a $10,000 fine and ordered it to pay all costs associated with the disciplinary proceeding. Additionally, the AMC will have its license suspended for six months — but that order will be stayed if the AMC pays all fines and cost by March 2016 and submits a plan outlining how it intends to determine reasonable and customary fees in the future in accordance with Louisiana law. 
The Louisiana Real Estate Appraisers Board in October released its newest fee survey. The survey, which was performed by Southeastern Louisiana University Business Research Center, can serve as a guide for appraisal management companies operating in Louisiana to assist them in complying with the state’s laws on the payment of reasonable and customary fees. 
INSIDE THE INSTITUTE                                                               
The Appraisal Institute’s Washington office on Dec. 11 attended a meeting of the Real Estate Roundtable to discuss the Financial Accounting Standards Board’s impending release of new lease accounting standards
The meeting was attended by FASB Vice Chair Jim Kroeker who outlined the contents of the new standards. Under the new standards, issuers of financial statements will be required to have balance sheets that account for many leases of property and equipment. Much of the roundtable discussion focused on compliance costs and benefits for issuers and preparers of financial statements, particularly for private companies. The new standards will take effect in 2019 for public companies and in 2020 for private companies. 
The Appraisal Institute on Nov. 17 hosted at its Chicago headquarters a Real Estate Finance Stakeholders Forum in which entities that use appraisal services discussed several key issues facing the valuation profession, including appraisal quality, the definition of market value and range of value/forecasting and the need for appraisal regulatory modernization, including the creation of a uniform licensing compact among states that would create more consistency among state licensing requirements. 
AI said it will work on identifying strategies to resolve the key issues in ways that benefit both AI professionals and the users of appraisal services. 
Participants included Ameris Bank, BMO Harris Bank N.A., Capital One Bank, Chase Bank, HomeStreet Bank, Commerce Bank, The Private Bank, Fifth Third Bank, Financial Control Group, Inc., Friel Valuation Advisors, LLC, Great Realty Advisors, HomeStreet Bank, Parkway Bank & Trust, Sandy Spring Bank, Santander, The Private Bank and Wells Fargo.

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