2018 Legislative Session - in regards to Real Estate
2018 Legislative Session - in regards to
GOV. ERIC HOLCOMB CALLS FOR SPECIAL SESSION TO COMPLETE UNFINISHED BUSINESS
The governor this week told legislative leaders that he will call them back to Indianapolis in May for a “special session” to address several priority legislative changes that were not enacted prior to the end of the regular session. Lawmakers failed to enact several key bills before the clock struck midnight on March 14, the statutory deadline for session to close.
Gov. Holcomb has pledged to keep his list of priorities as narrow as possible, specifically citing the need for resolution on issues related to school safety and the annual alignment of the state and federal tax code. He will forgo pushing for enactment of statutory guidelines on the regulation of autonomous vehicles, which had been an administration priority.
The special session will be scheduled in conjunction with the previously scheduled “technical corrections” session, which is typically a standard annual meeting to correct non-substantive errors that sometimes accompany the drafting process. It is estimated to cost taxpayers $30,000 per day. Several legislators have pledged to donate the equivalent of their pay for these additional days to charity.
REALTOR® PRIORITY ISSUE FELL VICTIM DURING CHAOTIC, WANING HOURS OF LAST DAY OF REGULAR SESSION
The 2018 session of the Indiana General Assembly came to a chaotic close as the midnight hour approached and several key pieces of legislation had failed to make it through the pipeline. One of these issues was a REALTOR® priority.
IAR helped introduce and lobby for legislation this year to ensure local annexation waivers that limit a taxpayer’s ability to remonstrate when a city files a waiver must be recorded and cannot exist in perpetuity. This was a pro-taxpayer bill intended to promote full disclosure of limitations on a property owner and to seek uniformity between pre-existing and prospective annexation waivers.
Not surprisingly, cities and towns objected strongly to the change. Local units have used forced annexation to expand their tax base; and, annexation waivers entered into voluntarily can be a tool for economic development. However, the bill would not have limited future annexation. It merely would require full disclosure that a waiver, which adheres to the property, had been filed. REALTORS® believed this type of disclosure is important in property transfers. It also would have specified that annexation remonstrance waivers would have a shelf life of 15 years.
After a hard-fought battle against the municipal opposition, the language was included in the final draft of House Bill 1104. However, in true Cinderella fashion, the clock struck midnight before a final vote could be tallied. It is unclear, to date, whether this provision has the potential to be revived during the special session.
COMPROMISE REACHED ON SHORT-TERM RENTAL RESTRICTIONS
Properties offered for rent via online platforms, such as Airbnb, are becoming more and more common in Indiana communities. But some local communities would like to restrict property owners from renting their property on a short-term basis.
New legislation authored by Rep. Matt Lehman (R-Berne) seeks to pre-empt local units from banning short-term rentals that are offered to the public via online platforms. It bars the local unit of government from adopting any ordinance that restricts or prohibits the use of a person’s primary residence as a short-term rental, except for the protection of the public’s health and safety and restrictions related to noise, protection of welfare, property maintenance, and nuisance issues.
It also allows municipalities to require property owners to obtain a special exception or zoning variance if the property is not the owner’s primary residence. Finally, it allows existing short-term rental ordinances to stand if they were adopted before Jan. 1, 1970. This bill originates from Sen. Mark Messmer’s (R-Jasper) interim study committee that took an in-depth look at the regulation of short-term rentals over the summer. The Indiana Association of REALTORS® voiced its concerns with the use of permitting by local officials, and the problems registries of this kind have caused all over the state. Overall, this legislation is a good compromise between local governments seeking to identify problem properties and private property owners and investors. Local boards will need to be vigilant as this statute is implemented by local units.
REALTORS® AND CREDIT SERVICES ORGANIZATIONS ARE NOT ONE AND THE SAME
Sometimes big things come in small packages. Senate Bill 420, a seemingly “simple” bill authored by Sen. Chip Perfect (R-Lawrenceburg), drew the interest of our organization late in this session. The bill pertained to companies that qualify as a “credit services organization” in Indiana. It sought to change the definition of a “credit services organization” for the purposes of debt collection. In doing so, the author amended the current list of occupations exempted from this definition, one of which is a real estate broker.
IAR was concerned because the bill would make a real estate broker a credit services organization, merely due to an offhand remark to a client suggesting they get their credit in order as they prepare for the purchasing process. This could have been potentially damaging to the real estate industry because it would subject brokers to a new regime of burdensome regulations if they give clients informal advice about their credit during the course of a real estate transaction.
IAR lobbyists testified before the House Financial Institutions Committee about the unintended consequences of this lost exemption, and the real estate broker exemption was reinstated in committee. It seems our objections also drew attention to other concerns about the original bill and it was ultimately defeated on the House floor.
AMCs AND PAYMENT OF INDIANA APPRAISAL CONTRACTS
The relationship between licensed appraisers and Appraisal Management Companies (AMCs) has often been one of tension since AMCs arose from the ashes of the economic crisis. This legislation originates from concerns over tardy payments to Indiana appraisers from AMCs. It requires an AMC to provide a hired appraiser with a proposed contract before the AMC may employ the appraiser to perform an appraisal. A companion bill in the Senate authored by Sen. Dennis Kruse (R-Auburn) also allows the Indiana Professional Licensing Agency to implement a federally required fee of $25 per appraiser to be collected by the AMC and ultimately remitted to the Appraisal Subcommittee.
WIRE TRANSFERS IN REAL ESTATE TRANSACTIONS WILL REMAIN MANDATORY
In 2013, the Indiana General Assembly amended the “good funds” statute to require funds $10,000 and greater – and disbursed from an escrow account in connection to a real estate transaction – to be transferred via wire. IAR supported that change, which was being promoted by the Indiana Land Title Association as a means to prevent defalcations. Senate Bill 163 sought to repeal that change and would have made the wiring of real estate transaction funds optional instead of mandatory. Sen. Mark Messmer (R-Jasper) authored this bill in response to concerns he heard from local REALTORS®, bankers, and title companies in his district.
The intent of the bill was to reduce wire fraud by giving the consumer a choice. The bill was opposed by the Indiana Land Title Association and supported by the banking industry. It passed the Senate by a 49-0 vote. Title companies report that the change would result in delayed possession at closings, delayed payments to REALTORS®, and potentially add cost to consumers. IAR facilitated conversations with brokers and title companies to ensure brokers were aware of the full effect of “returning to the old way.” However, after much discussion and consideration by legislators and the many stakeholders, it was determined that this bill should not move forward, and the chairman of the House Judiciary Committee did not give it a hearing. Sen. Messmer’s leadership on this topic has resulted in raising greater awareness to the risk of wire fraud in real estate transactions. Both the IAR purchase agreement and the IAR listing contract contain language warning consumers of the threat of wire fraud and urging caution with the handling of wire transfers.
REMOTE NOTARIZATION OF DOCUMENTS TO BE ALLOWED
This legislation was proposed under the leadership of Secretary of State Connie Lawson in an effort to modernize the notarization process. It amends Indiana’s notary public statute by specifying requirements for remote notary acts. These requirements include: 1) registration of a remote notary; 2) certification of and record keeping related to remote notarial acts; 3) use of audio visual communications and recording; 4) verification of credentials; and 5) maintenance of records. IAR has worked along with many stakeholders on this bill since the conclusion of last year’s session; and, the secretary of state and her staff were instrumental in incorporating concerns regarding records security and maintenance.
NO APPETITE FOR TOWNSHIP GOVERNMENT REFORM: MANDATORY MERGERS OF SMALL TOWNSHIPS DIES
A compromise after years of wrangling over local government reform, this bill sought to force the mergers of townships with populations of less than 1,200 residents within the next five years. Indiana currently has 1,005 townships, and this bill will mostly affect rural areas. IAR has a long history supporting local government reform and efficiency such as this. Past efforts to eliminate township government have been met with strong opposition, but this effort appears to be supported by the Indiana Township Association because the consolidation will lead to more efficient township services for taxpayers. The proposal also has the support of the business community. This bill passed out of the House Ways and Means Committee, but failed to be given a final vote by the Indiana House.
ECONOMIC IMPROVEMENT DISTRICTS WILL BE SUBJECT TO GREATER SCRUTINY
The Indiana Association of REALTORS® is always watching for state legislation that has the potential to erode the constitutional cap on property taxes, which has been so beneficial to taxpayers across the state. Although we support innovative tax measures which encourage sound economic growth, we are cautious of regulations that could possibly reverse the good work done by a permanent cap on Indiana property taxes.
House Bill 1278, authored by Rep. Sean Eberhart (R-Shelbyville), sought to tighten the process under which economic improvement districts could be established and possibly expanded. The special assessments created by economic improvement districts add to a property taxpayer’s bottom line, and we want to ensure that process is most fair to all taxpayers. This bill allows for this creative local government solution to continue, but with greater transparency and deference to taxpayers.
DACA RECIPIENTS MAY RECEIVE AND RENEW PROFESSIONAL LICENSES
In the final day for committee hearings Senate Bill 419, a general licensing bill, was amended to allow Deferred Action for Childhood Arrivals (DACA) recipients in Indiana to obtain or renew professional licenses for occupations in our state. Young immigrants brought to the United States as children, often called “Dreamers,” were not being allowed to acquire Indiana professional licenses under a 2011 Indiana immigration law. Rep. Ed Clere (R-New Albany), who is also a REALTOR®, authored the amendment, which aligned Indiana law with federal law as it pertains to a person’s legal status to work. In short, the bill does not allow Indiana to have more stringent employment standards for non-citizens than the federal government. This fix allows professional licensees to continue legal employment in Indiana in their specified profession while discussions continue in Congress about this unique status.
PROPERTY TAX RELIEF SOUGHT TO SOFTEN EFFECTS OF GENTRIFICATION FAILED TO ADVANCE
Homeowners love seeing their property rise in value, but sometimes the tax implications can be painful. Last year, Rep. Cherrish Pryor (D-Indianapolis) offered a similar bill to establish a neighborhood enhancement property tax relief program within certain taxing districts across the state. This year’s bill would have created a neighborhood enhancement property tax relief program within Marion County with the option for other counties, cities, and towns to establish such a program after 2021. The program sought to allow longtime owner-occupants of established homesteads in certain neighborhoods in Marion County to claim an assessed value deduction if their properties have an assessed value of less than $125,000. It would also have allowed municipalities to establish additional program requirements, along with allowing municipalities to penalize those who wrongly receive a deduction.
This bill was assigned to the House Ways and Means Committee of which Rep. Pryor is a member but was not given a hearing. Although IAR has great concerns about the impact of skyrocketing home values in certain markets, generally speaking we favor an approach that would direct a local unit to fund such relief, rather than shifting the tax burden on to other homeowners.
SAFE TRANSFER OF CONTAMINATED PROPERTIES WILL PROTECT BUYERS
In 2014, the sales disclosure form was modified to include a section regarding the owner’s knowledge of meth manufacturing. The state was experiencing a rapid rise of meth abuse, and the manufacturing of this illegal drug was occurring on properties where its chemical residue remained long after the meth manufacturing. Along with this sales disclosure change, procedures regarding the decontamination of properties and a database of affected properties were created. This new law seeks to broaden the definition of “methamphetamine laboratory” to “contaminating controlled substance,” to include other trending illegal drugs like fentanyl. It also seeks to transfer the powers, duties, records, property, and rules concerning decontamination from the Indiana Department of Environmental Management to the Indiana Department of Health.
Finally, it also seeks to allow an order to vacate a dwelling to be recorded along with a revocation of that order to be recorded on the chain of title. This provision is concerning to our organization as we believe the sales disclosure forms give the same notice to future property owners. IAR worked with the author and the Holcomb administration to balance our concerns about stigmatizing property with the very real public health concerns that the bill is intended to address. Committee amendments have greatly improved the bill and enabled IAR to support its ultimate enactment.