Florida's Live Local Act and Important Tax Exemption Deadlines

The recently enacted Florida Senate Bill 102, which is commonly referred to as the Live Local Act (the Act), has significant land use, zoning and tax benefits. (See Holland & Knight's previous alert, "Florida's New Live Local Act Offers Land Use and Tax Benefits," Aug. 8, 2023.) Specifically, this Holland & Knight alert provides a general summary of the Act's benefits from a tax perspective and an update on key certification deadlines.

Summary of Tax Benefits

The "Missing Middle" Property Tax exemption encourages the allotment of affordable units in new or recently constructed developments. The Act provides that certain developments will be eligible for a 75 percent or 100 percent ad valorem tax exemption, depending on the level of rent restriction for the units. If at least 71 or more units are affordable to natural persons earning up to 80 percent of the area median income (AMI),¹ then each unit provided to such persons qualifies for a 100 percent ad valorem tax exemption. If at least 71 units are affordable to natural persons earning more than 80 percent of AMI up to 120 percent AMI, then each unit provided to such persons is eligible for a 75 percent ad valorem tax exemption. These exemptions first apply to the 2024 tax roll and require a certification notice issued by the Florida Housing Finance Corporation (FHFC), known as the Multifamily Middle Market Certification.

The Act's Missing Middle Property Tax Exemption

This exemption applies throughout Florida without further action by local governments. Eligible property must:

1. be "newly constructed"
2. contain at least 71 units in a multifamily project
3. be "occupied" by natural persons below either 80 percent or 120 percent AMI
4. offer rent that cannot exceed 90 percent of fair market value as determined by a rental market study

The Act defines eligible property to include units in a "newly constructed" multifamily project containing more than 70 units dedicated to housing natural persons or families below certain income thresholds. "Newly constructed" is defined as an improvement substantially completed within five years before the property owner's first application for this exemption. The units must be occupied by such persons or families and rent limited so as to provide affordable housing from the 80 percent to 120 percent AMI threshold. Rent for such units also may not exceed 90 percent of the fair market value rent as determined by a rental market study. If an "occupied" unit qualifies for this exemption and the following year is vacant on Jan. 1, the vacant unit is eligible for the exemption, provided it meets the other requirements and a reasonable effort is made to lease the unit to eligible persons or families.

75 Percent Exemption for Units 80 Percent - 120 Percent AMI

Qualified property used to provide affordable housing at the 80 percent to 120 percent AMI threshold receives an exemption of 75 percent of the assessed value of the units.

100 Percent Exemption for Units Less Than 80 Percent AMI

Qualified property providing affordable housing up to the 80 percent AMI threshold receives a complete (100 percent) ad valorem tax exemption.

Properties Not Eligible

It is important to keep in mind that certain units do not qualify for a tax exemption. Units subject to a recorded agreement with the FHFC under Ch. 420, Florida Statute, to provide affordable housing, and property receiving an exemption under Section 196.1979, Florida Statute, as created by a local affordable housing exemption ordinance, are not eligible to receive this exemption.

Procedure

The Missing Middle Property Tax Exemption first applies to the 2024 tax roll and is repealed on Dec. 31, 2059.

To receive this exemption, a property owner must 1) file a Multifamily Middle Market certification form to the FHFC and 2) submit an application by March 1 to the local property appraiser, accompanied by the Multifamily Middle Market certification notice from the FHFC. While a certificate from FHFC is required in order to receive the exemption, it does not guarantee that an exemption will be granted by the local property appraiser. A sample form provided by the FHFC can be found online.

As part of the FHFC certification process, a property owner must submit a request on a form that includes:

1. the most recent market study (the study must have been conducted by an independent certified general appraiser in the preceding three years)
2. a list of units for which the exemption is sought
3. the rent amount received for each unit
4. a sworn statement restricting the property for a period of no less than three years to provide affordable housing

The certification process is administered by the FHFC. The agency's responsibilities include publishing the deadline for submission, reviewing each request, sending certification notices to both the successful property owner and the applicable property appraiser, and notifying unsuccessful property owners with the reasons for denial.

Key Deadlines

1. The Multifamily Middle Market portal will open and begin accepting requests on Oct. 2, 2023. Owners must submit their request to the FHFC no later than Dec. 31, 2023, at 11:59 p.m.
2. Owners must have appropriate rents and tenants in place in units under consideration no later than Jan. 1, 2024.
3. Owners must confirm or update (if needed) the unit and rent list between Jan. 1, 2024, and no later than Jan. 15, 2024, at 11:59 p.m.
4. FHFC will provide certification notices to owners and the local property appraisers no later than Feb. 15, 2024.
5. If an owner receives a certification notice, they must then submit a notice, an application and any other required documentation to their local property appraiser no later than March 1, 2024.

Penalties

If the property appraiser determines that an exemption has been improperly granted within the last 10 years, the property appraiser must serve the owner with a notice of intent to record a tax lien. Such property will be subject to the taxes improperly exempted, plus a penalty of 50 percent and 15 percent annual interest. Penalty and interest amounts do not apply to exemptions erroneously granted due to clerical mistake or omission by the property appraiser.

For More Information

If you have any questions or would like assistance regarding the recent Act requirements, please contact one of the authors.

Notes

¹ In Miami-Dade, the area median income is $68,300. 120 percent AMI, the upper income threshold for all of the programs, is $81,960. Miami-Dade County's Workforce Housing Development Program includes families whose incomes are within 60 to 140 percent AMI. Therefore, while units restricted from 120 percent to 140 percent AMI qualify in the County. The aforementioned units do not count towards the minimum of 70 units required by the Live Local Act.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.