Mortgage Recording Tax on Mezzanine Debt, Preferred Equity Again Proposed in N.Y. Senate | Insights

Laws to impose a tax on the creation of mezzanine financial debt and favored equity was reintroduced on Jan. 4, 2023, in the last two periods of the New York state legislature, by the very same state senators who proposed it previously. The only change is the invoice number, which is now S-318 as an alternative of S-7231. Amid actions, the Mezzanine Financial debt Monthly bill:

• would impose the home loan recording tax on mezzanine financial debt and favored fairness investments, as well as involve that the mezzanine loan company or most well-liked fairness holder file a Uniform Commercial Code financing assertion (UCC-1) to best its safety curiosity in its collateral (i.e., the membership pursuits or shares of the borrower)
• helps prevent a secured party from imposing a protection curiosity except if the funding statement is submitted with the condition and the county in which the residence is positioned and the home finance loan recording tax has been paid
• targets serious estate transactions, whilst there is a pretty real probability that it could be interpreted to consist of any financing transaction that even indirectly entails real estate, which could include things like company transactions in which the target enterprise or its subsidiaries include genuine estate used in its operations

Described Conditions

The invoice amends Section 291-k of New York’s Real Home Regulation to outline “mezzanine financial debt” and “desired fairness investments” as:

“debt carried by a borrower that may possibly be subordinate to the major lien and is senior to the common shares of an entity or the borrower’s fairness and documented as assets for the reasons of funding such key lien. This shall involve non-conventional financing methods these types of as a direct or indirect expense by a funding resource in an entity that owns the [equity] passions of the fundamental house loan in which the financing supply has special legal rights or chosen rights this kind of as: (i) the correct to receive a distinctive or desired rate of return on its cash investment and (ii) the right to an accelerated reimbursement of the trader[‘]s money contribution.”

The reference to “non-traditional financing strategies” need to be considered as troubling simply because it is open up-ended and could enable practically any romantic relationship to become matter to the property finance loan recording tax.

The Mezzanine Debt Invoice also modifies Segment 250 of the New York State Tax Regulation and Area 9-601 of New York’s UCC to specify that “each time a house loan instrument is recorded in the office of the recording officer of any county, any mezzanine personal debt or favored equity expense related to the real home upon which the house loan instrument is filed shall also be recorded with this kind of mortgage loan instrument.” The Mezzanine Debt Bill also delivers that “mezzanine financial debt and preferred equity investments” are taxable, and that the tax will be measured by the quantity of “principal debtor obligations” that could be secured by a protection settlement “in relation to serious property on which a mortgage instrument is filed.” A consequence of the recording need is that counties and towns could also impose a tax on the recording of the financing assertion, which would make the efficient tax fee equal to the mortgage loan recording tax amount, which is 2.85 percent of the “debt” secured for industrial authentic assets located in New York Metropolis and having a value of more than $500,000.

The Mezzanine Credit card debt Bill also amends Segment 9-601 of the UCC to present a new prerequisite that recording of a funding assertion in the pertinent county records is required to ideal “a safety fascination in mezzanine debt and/or a most well-liked fairness investments.” This is especially troubling because Section 291-k of the Authentic House Legislation would supply that:

“No treatment or else accessible to a secured party less than report 9 of the uniform commercial code shall be readily available to enforce a security settlement pertaining to mezzanine credit card debt funding and/or desired equity investments in relation to true house on which a house loan instrument is submitted that is evidenced by a funding statement, except if that funding statement is filed and the tax imposed pursuant to the authority of subdivision 4 of area two hundred fifty-a few of the tax law, has been paid.”

Unintended Penalties

Whilst the Mezzanine Personal debt Bill targets serious estate transactions, there is a pretty actual risk that it could be interpreted to include things like any financing transaction that even indirectly includes genuine estate, which could consist of company transactions in which the focus on business or its subsidiaries consist of actual estate utilized in its operations. There is also the trouble of multistate transactions that either involve events that individual serious estate in New York or in other places, which also raises issues as to which state’s regulations would govern real estate in New York in a transaction obtaining a nexus with a different condition. In reviewing the Mezzanine Personal debt Monthly bill, it is apparent that, if enacted, it will make New York additional high-priced and is likely to make mezzanine personal debt and preferred equity significantly less accessible than in the other 49 states.

The Sponsor’s Justification demonstrates that the bill’s writer does not completely understand the roles mezzanine personal debt and favored fairness participate in in authentic estate finance and treats mezzanine credit card debt and preferred fairness as one more variety of mortgage financing, which is the opposite of the purpose that they play. It is the availability of mezzanine financial debt and chosen equity to make assets extra financeable by expanding the fairness part of the personal debt stack and has become a prerequisite for considerably home loan funding, especially construction funding, which generally carries a great deal of danger. Dealing with mezzanine financial debt and chosen fairness as a home finance loan could adversely affect its use as supplemental equity enabling the borrower to be capable to get hold of mortgager funding.

The sponsor also argues that there is a thing unfair mainly because homebuyers are not able to attain mezzanine funding, despite the fact that the legislature and the state’s banking regulators and Dobbs-Frank Act would in no way let homebuyers to give the fairness in their residences to a third get together, nor would the legislature permit a third occasion to make decisions concerning the assets, which would be vital for the financial institution to protect its collateral. In addition, thinking about the complexity concerned in foreclosing a mortgage loan in New York, the legislature would in no way allow a UCC auction to terminate the homeowner’s legal rights to their property devoid of a long time of litigation, which would defeat the incredibly purpose of mezzanine debt and preferred equity financing.

Summary and Concerns

If enacted, it is predicted that this laws would end result in fewer offered funding for design and other dangerous funding, which would make another rationale for builders, traders and lenders to go their business to Florida, Texas or other low-tax, reduced-regulatory states. Though it might be aimed in portion at elevating income, the bill also results in a disincentive for financing in New York and could consequence in New York Town and the condition actually getting less earnings, mainly because the mezzanine and most popular fairness funding resources would abide by the mortgage loan financing to one more, additional hospitable point out.

For much more facts, speak to the writer.

Facts contained in this warn is for the typical education and knowledge of our readers. It is not created to be, and should really not be utilized as, the sole source of facts when examining and resolving a authorized issue, and it ought to not be substituted for authorized guidance, which relies on a distinct factual examination. What’s more, the rules of every single jurisdiction are distinctive and are constantly changing. This information and facts is not meant to make, and receipt of it does not constitute, an lawyer-client relationship. If you have specific concerns regarding a unique simple fact scenario, we urge you to check with the authors of this publication, your Holland & Knight consultant or other skilled legal counsel.