Right of First Refusal

Blog Posts
Court Rulings
Legislation
Journal of Tax Credits
 

Blog Posts

Congress Considering Retroactive Changes Affecting Low-Income Housing Tax Credit Property Owners, Part I
July 24, 2019

Reader Comments

Multiple Affordable Housing Organizations Respond to Right-Of-First-Refusal Blog

Eric Pettit: Section 303 of the Affordable Housing Credit Improvement Act has Serious Constitutional, Tax and Fiscal Problems  

IRS, Treasury and CDFI Fund Representatives Share NMTC and LIHTC Insights
James Rider, General Attorney (Tax) in the IRS Office of Chief Counsel, said that when considering the nonprofit right of first refusal under IRC 42(i)(7), an option to buy is different than a right of first refusal. He noted that as the statute was being drafted, the wording was initially stated to be an "option," but later changed to use the term "right of first refusal." This legislative history suggests that Congress intended for it to be a true right of first refusal, and not an option. Rider observed that under a right of first refusal, an owner must first choose to sell, whereas an option holder can compel a sale. However, Rider also observed that a 3rd party bona fide offer may not be required, as that doesn’t seem to have been Congressional intent. Moreover, Rider suggested that a plan to sell the property would not necessarily require all partners to agree to that sale.
June 16, 2017

IRS, Treasury and CDFI Fund Representatives Share LIHTC, NMTC and HTC Insights
Michael Novey, associate tax legislative counsel in the Office of Tax Policy at the Treasury Department, said that when considering the nonprofit right of first refusal under IRC 42(i)(7), an option to buy is different than a right of first refusal. He noted that as the statute was being drafted, the wording was initially stated to be an "option," but later changed to use the term "right of first refusal." This legislative history suggests that Congress intended for it to be a true right of first refusal, and not an option. Novey said standard setters are concerned about a pre-arranged timeline to sell the property planned in advance. However, he also said that if the property owner were to put the building up for sale, that alone might be enough to trigger a right of first refusal.
June 3, 2016

Court Rulings

SunAmerica Housing Fund 1050 v. Pathway of Pontiac, Inc. et al.
In this case, the right of first refusal was not exercisable because there was no bona fide offer—the solicitation of an offer wasn’t made in good faith. In addition, the common law definition of right of first refusal adopted by this partnership meant that the General Partners needed to have the intent to sell. The General Partners did not truly manifest that intent.
Feb. 4, 2021

Defendant's Reply in Support of Cross-Motion for Summary Judgment
Oct. 10, 2020

Plaintiff's Combined Reply in Support of Motion for Summary Judgment and Response to Defendant's Cross-Motion for Summary Judgment
Sept. 21, 2020

Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment
Sept. 1, 2020

Plaintiff's Memo in Support of Motion for Summary Judgment
July 29, 2020

Plaintiff's Motion for Summary Judgment
July 29, 2020

Tenants' Dev. Corp. v. AMTAX Holdings 227 and Alden Torch Financial LLC
ORDER dismissing actions without prejudice. This case concerns a contract dispute regarding a nonprofit's right of first refusal for a LIHTC-eligible property. Parties asserted the issue for the Court was the meaning of 26 U.S.C. § 42. The Court found the meaning of 26 U.S.C. § 42 to not be "substantial" to the dispute and therefore the Court lacked subject matter jurisdiction.
Dec. 23, 2020

Riseboro Community Partnership Inc. v. SunAmerica Housing Fund, SLP Housing I LLC, and 420 Stockholm Street Associates LP (Amicus Brief)
April 14, 2021
The decision below threatens amici’s interests. If for-profit investors who have already obtained tax credits under the LIHTC program may now refuse to transfer their interests to non-profits after year fifteen, the inevitable outcome will be either (a) onerous new transfer costs for non-profit partners, depleting the capital that non-profits need to sustain long-term affordable housing or (b) a conversion of these developments to market rate, putting them beyond the reach of low-income New Yorkers. Both outcomes harm residents of LIHTC-funded projects and undermine the significant investments that the State and City have made in these projects for the purpose of long-term affordability.

Riseboro Community Partnership Inc. v. SunAmerica Housing Fund, SLP Housing I LLC, and 420 Stockholm Street Associates LP
ORDER in favor of defendants. The Court found that the right of first refusal (ROFR) granted in the partnership agreement operates by the New York common law definition of a ROFR, and was not an option.
Sept. 1, 2020

Senior Housing Assistance Group v. Amtax Holdings 260 LLC, et al.; Amtax Holdings 260 LLC, et al. v. Senior Housing Assistance Group (Motions for Summary Judgment)
ORDER denying motions for summary judgment. With respect to a nonprofit affordable housing provider's right of first refusal (ROFR), the court found parties' intent unclear in the LIHTC partnership agreement as to whether the ROFR was meant to conform with the ordinary meaning. To determine this and whether or not bona fide offers for purchase of the property was received, the Court needs to act as a fact finder.
Feb. 19, 2019

Senior Housing Assistance Group v. Amtax Holdings 260 LLC, et al.; Amtax Holdings 260 LLC, et al. v. Senior Housing Assistance Group (Findings of Fact and Conclusions of Law)
Judgment in favor of the AMTAX entities. 
March 29, 2019

Homeowner's Rehab Inc. v. Related Corporate V SLP LP
ORDER affirming NY Superior Court's order granting motion for summary judgment.
June 15, 2018

Amicus Brief of Holland & Hart LLP
Sept. 27, 2017

Amicus Brief of Bradley Myers
Sept. 27, 2017

Homeowner's Rehab Inc. and Memorial Drive Housing Inc. v. Related Corporate V SLP LP and Centerline Corporate Partners V LP
ORDER granting summary judgment. The Court found that the LIHTC partnership GP was permitted to solicit a third party offer and issue a disposition notice without the special limited partner's consent. To trigger the nonprofit's right of first refusal contained in the LIHTC partnership agreement, the partnership needed to receive a third party's enforceable offer to purchase the property interest, but special limited partner consent was not needed.
September 16, 2016

Legislation

S.B. 1703,  Affordable Housing Credit Improvement Act 
Relevant text appears on pages 19 through 21. 
Introduced June 4, 2019

H.R. 3077 (Introduced June 4, 2019)
Relevant text appears on pages 19 through 21. 

Affordable Rental A.C.T.I.O.N.'s Extended Bill Summary of ACHIA
Relevant text appears on page 5. 

Affordable Rental A.C.T.I.O.N.'s Selected Differences between 116th and 115th Congress Versions of ACHIA
Relevant text appears on page 3. 

Journal of Tax Credits

Options for the End: Typical Partnership Agreement Exit Provisions
June 1, 2013

Preparing For Year 15: Know the Landscape
Mar. 1, 2013