HB 576: Housing Development Programs; HHFDC; Restrictions on Transfer; Hawaiian Home Lands; Exception

A BILL FOR AN ACT

RELATING TO RESTRICTIONS ON THE TRANSFER OF REAL PROPERTY UNDER CHAPTER 201H, HAWAII REVISED STATUTES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 201H-47, Hawaii Revised Statutes, is amended to read as follows:

     "§201H-47  Real property; restrictions on transfer; waiver of restrictions.  (a)  The following restrictions shall apply to the transfer of real property developed and sold under this chapter, whether in fee simple or leasehold:

     (1)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum of:

          (A)  The original cost to the purchaser, as defined in rules adopted by the corporation;

          (B)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

          (C)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

          (D)  The amount, if any, previously paid by the purchaser to the corporation as the corporation's share of net appreciation in the real property;

     (2)  The corporation may purchase the real property either[:] by conveyance:

          (A)  [By conveyance free] Free and clear of all mortgages and liens; or

          (B)  [By conveyance subject] Subject to existing mortgages and liens.

          If the real property is conveyed in the manner provided in subparagraph (A), it shall be conveyed to the corporation only after all mortgages and liens are released.  If the real property is conveyed in the manner provided in subparagraph (B), the corporation shall acquire the real property subject to any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.

              The corporation's interest created by this section shall constitute a statutory lien on the real property and shall be superior to any other mortgage or lien, except for any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; any mortgage insured or held by a federal housing agency; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.  The amount paid by the corporation to the seller shall be the difference, if any, between the purchase price determined by paragraph (1)(A) to (D), and the total of the outstanding principal balances of the mortgages and liens assumed by the corporation;

     (3)  A purchaser may refinance real property developed and sold under this chapter; provided that the purchaser shall not refinance the real property within ten years from the date of purchase for an amount in excess of the purchase price as determined by paragraph (1)(A) to (C); provided further that the purchaser shall obtain the corporation's written consent if any restriction on the transfer of the real property remains applicable;

     (4)  After the end of the tenth year from the date of initial purchase or execution of an agreement of sale, the purchaser may sell the real property and sell or assign the property free from any price restrictions; provided that the purchaser shall be required to pay to the corporation the sum of:

          (A)  The balance of any mortgage note, agreement of sale, or other amount owing to the corporation;

          (B)  Any subsidy or deferred sales price made by the corporation in the acquisition, development, construction, and sale of the real property, and any other amount expended by the corporation not counted as costs under section 201H-45 but charged to the real property by good accounting practice as determined by the corporation whose books shall be prima facie evidence of the correctness of the costs;

          (C)  Interest on the subsidy or deferred sales price, if applicable, and any other amount expended at a rate established by the corporation computed as to the subsidy or deferred sales price, if applicable, from the date of purchase or execution of the agreement of sale, and as to any amount expended, from the date of expenditure; provided that the computed interest shall not extend beyond thirty years from the date of purchase or execution of the agreement of sale of the real property.  If any proposed sale or transfer will not generate an amount sufficient to pay the corporation the sum as computed under this paragraph, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum as computed under paragraphs (1) and (2); and

          (D)  The corporation's share of appreciation in the real property as determined under rules adopted pursuant to chapter 91, when applicable;

     (5)  Notwithstanding any provision in this section to the contrary, pursuant to rules adopted by the corporation, the subsidy or deferred sales price described in paragraph (4)(B) and any interest accrued pursuant to paragraph (4)(C) may be paid, in part or in full, at any time; and

     (6)  Notwithstanding any provision in this section to the contrary, the corporation's share of appreciation in the real property described in paragraph (4)(D):

          (A)  Shall apply when the sales price of the real property that is developed and sold under this chapter is less than the then-current, unencumbered, fair market value of the real property, as determined by a real property appraisal obtained [prior to] before the closing of the sale;

          (B)  Shall be a restriction that runs with the land until it is paid in full and released by the corporation, or extinguished pursuant to subsection (f); and

          (C)  May be paid, in part or in full, at any time after recordation of the sale.

     (b)  If the corporation waives its first option to repurchase the real property provided in subsection (a), a qualified nonprofit housing trust shall have the option to purchase the real property at a price that shall not exceed the sum of:

     (1)  The original cost to the purchaser, as defined in rules adopted by the corporation;

     (2)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

     (3)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

     (4)  The corporation's share of net appreciation in the real property to be paid as determined under rules adopted pursuant to chapter 91, when applicable.

     (c)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, and if the corporation or the qualified nonprofit housing trust selected by the corporation does not exercise the option to purchase the real property as provided in subsection (a) or (b), then the corporation shall require the purchaser to sell the real property to a "qualified resident" as defined in section 201H-32, and upon the terms that preserve the intent of this section and sections 201H-49 and 201H-50, and in accordance with rules adopted by the corporation.

     (d)  The corporation may waive the restrictions prescribed in subsections (a) through (c) if:

     (1)  The purchaser wishes to transfer title to the real property by devise or through the laws of descent to a family member who would otherwise qualify under rules established by the corporation;

     (2)  The sale or transfer of the real property would be at a price and upon terms that preserve the intent of this section without the necessity of the State repurchasing the real property; provided that, in this case, the purchaser shall sell the real property and sell or assign the real property to a person who is a "qualified resident" as defined in section 201H-32; [and] provided further that the purchaser shall pay to the corporation its share of appreciation in the real property as determined in rules adopted pursuant to chapter 91, when applicable; or

     (3)  The sale or transfer is of real property subject to a sustainable affordable lease as defined in section 516-1.

     (e)  The corporation may release the restrictions prescribed in subsections (a) through (c) if the real property is financed under a federally subsidized mortgage program and the restrictions would jeopardize the federal government's ability to recapture any interest credit subsidies provided to the homeowner.

     (f)  The restrictions prescribed in this section and sections 201H-49 to 201H-51 shall be automatically extinguished and shall not attach in subsequent transfers of title when a qualified nonprofit housing trust becomes the owner of the real property pursuant to subsection (b); or a mortgage holder or other party becomes the owner of the real property pursuant to a mortgage foreclosure, foreclosure under power of sale, or [a] conveyance in lieu of foreclosure after a foreclosure action is commenced; provided that the mortgage is the initial purchase money mortgage, or that the corporation consented to and agreed to subordinate the restrictions to the mortgage when originated, if the mortgage is not the initial purchase money mortgage; or when a mortgage is assigned to a federal housing agency.  Any law to the contrary notwithstanding, a mortgagee under a mortgage covering real property or leasehold interest encumbered by the first option to purchase in favor of the corporation, [prior to] before commencing mortgage foreclosure proceedings, shall notify the corporation in writing of:

     (1)  Any default of the mortgagor under the mortgage within ninety days after the occurrence of the default; and

     (2)  Any intention of the mortgagee to foreclose the mortgage under chapter 667 forty-five days [prior to] before commencing mortgage foreclosure proceedings;

provided that the mortgagee's failure to provide written notice to the corporation shall not affect the mortgage holder's rights under the mortgage.  The corporation shall be a party to any foreclosure action, and shall be entitled to its share of appreciation in the real property as determined under this chapter in lien priority when the payment is applicable, and if foreclosure occurs within the ten-year period after the purchase, the corporation shall also be entitled to all proceeds remaining in excess of all customary and actual costs and expenses of transfer pursuant to default, including liens and encumbrances of record; provided that the person in default shall be entitled to an amount that shall not exceed the sum of amounts determined pursuant to subsection (a)(1)(B) and (C).

     (g)  The provisions of this section shall be incorporated in any deed, lease, agreement of sale, or [any] other instrument of conveyance issued by the corporation.  In any sale by the corporation of real property for which a subsidy or deferred sales price was made by the corporation, the amount of the subsidy or deferred sales price described in subsection (a)(4)(B), a description of the cost items that constitute the subsidy or deferred sales price, and the conditions of the subsidy or deferred sales price shall be clearly stated at the beginning of the contract document issued by the corporation.  In any sale in which the corporation's share of appreciation in real property is a restriction, the terms of the shared appreciation equity program shall be clearly stated and included as an exhibit in any deed, lease, agreement of sale, or [any] other instrument of conveyance.

     (h)  This section need not apply to market-priced units in an economically integrated housing project, except as otherwise determined by the developer of the units; provided that preference shall be given to qualified residents in the initial sale of market-priced units.

     (i)  The corporation [is authorized to] may waive any of the restrictions set forth in this section in order to comply with or conform to requirements set forth in federal law or regulations governing mortgage insurance or guarantee programs or requirements set forth by federally chartered secondary mortgage market participants.

     (j)  Notwithstanding any law to the contrary, if real property is purchased by a qualified nonprofit housing trust pursuant to subsection (b), the housing trust shall establish new buyback restrictions for the purpose of maintaining the unit as affordable for as long as practicable, or as otherwise required by the corporation.

     (k)  A qualified nonprofit housing trust shall report the status and use of its housing units to the corporation by November 30 of each calendar year.

     (l)  This section shall not apply to any transfers of Hawaiian home lands under the Hawaiian Homes Commission Act, 1920, as amended, as any such transfers shall be governed by the provisions of that Act, including but not limited to lease conditions stipulating that the lease shall be for a term of ninety-nine years."

     SECTION 2.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 3.  This Act shall take effect on July 1, 3000; provided that the amendments made to section 201H-47, Hawaii Revised Statutes, by section 1 of this Act shall not be repealed when that section is reenacted on June 30, 2028, pursuant to section 5 of Act 92, Session Laws of Hawaii 2023.

Report Title:

Housing Development Programs; HHFDC; Restrictions on Transfer; Hawaiian Home Lands; Exception

Description:

Exempts transfers of Hawaiian Home Lands from transfer restrictions for real property under housing development programs of the Hawaii Housing Finance and Development Corporation.  Effective 7/1/3000.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

RELATING TO RESTRICTIONS ON THE TRANSFER OF REAL PROPERTY UNDER CHAPTER 201H, HAWAII REVISED STATUTES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 201H-47, Hawaii Revised Statutes, is amended to read as follows:

     "§201H-47  Real property; restrictions on transfer; waiver of restrictions.  (a)  The following restrictions shall apply to the transfer of real property developed and sold under this chapter, whether in fee simple or leasehold:

     (1)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum of:

          (A)  The original cost to the purchaser, as defined in rules adopted by the corporation;

          (B)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

          (C)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

          (D)  The amount, if any, previously paid by the purchaser to the corporation as the corporation's share of net appreciation in the real property;

     (2)  The corporation may purchase the real property either[:] by conveyance:

          (A)  [By conveyance free] Free and clear of all mortgages and liens; or

          (B)  [By conveyance subject] Subject to existing mortgages and liens.

          If the real property is conveyed in the manner provided in subparagraph (A), it shall be conveyed to the corporation only after all mortgages and liens are released.  If the real property is conveyed in the manner provided in subparagraph (B), the corporation shall acquire the real property subject to any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.

              The corporation's interest created by this section shall constitute a statutory lien on the real property and shall be superior to any other mortgage or lien, except for any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; any mortgage insured or held by a federal housing agency; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.  The amount paid by the corporation to the seller shall be the difference, if any, between the purchase price determined by paragraph (1)(A) to (D), and the total of the outstanding principal balances of the mortgages and liens assumed by the corporation;

     (3)  A purchaser may refinance real property developed and sold under this chapter; provided that the purchaser shall not refinance the real property within ten years from the date of purchase for an amount in excess of the purchase price as determined by paragraph (1)(A) to (C); provided further that the purchaser shall obtain the corporation's written consent if any restriction on the transfer of the real property remains applicable;

     (4)  After the end of the tenth year from the date of initial purchase or execution of an agreement of sale, the purchaser may sell the real property and sell or assign the property free from any price restrictions; provided that the purchaser shall be required to pay to the corporation the sum of:

          (A)  The balance of any mortgage note, agreement of sale, or other amount owing to the corporation;

          (B)  Any subsidy or deferred sales price made by the corporation in the acquisition, development, construction, and sale of the real property, and any other amount expended by the corporation not counted as costs under section 201H-45 but charged to the real property by good accounting practice as determined by the corporation whose books shall be prima facie evidence of the correctness of the costs;

          (C)  Interest on the subsidy or deferred sales price, if applicable, and any other amount expended at a rate established by the corporation computed as to the subsidy or deferred sales price, if applicable, from the date of purchase or execution of the agreement of sale, and as to any amount expended, from the date of expenditure; provided that the computed interest shall not extend beyond thirty years from the date of purchase or execution of the agreement of sale of the real property.  If any proposed sale or transfer will not generate an amount sufficient to pay the corporation the sum as computed under this paragraph, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum as computed under paragraphs (1) and (2); and

          (D)  The corporation's share of appreciation in the real property as determined under rules adopted pursuant to chapter 91, when applicable;

     (5)  Notwithstanding any provision in this section to the contrary, pursuant to rules adopted by the corporation, the subsidy or deferred sales price described in paragraph (4)(B) and any interest accrued pursuant to paragraph (4)(C) may be paid, in part or in full, at any time; and

     (6)  Notwithstanding any provision in this section to the contrary, the corporation's share of appreciation in the real property described in paragraph (4)(D):

          (A)  Shall apply when the sales price of the real property that is developed and sold under this chapter is less than the then-current, unencumbered, fair market value of the real property, as determined by a real property appraisal obtained [prior to] before the closing of the sale;

          (B)  Shall be a restriction that runs with the land until it is paid in full and released by the corporation, or extinguished pursuant to subsection (f); and

          (C)  May be paid, in part or in full, at any time after recordation of the sale.

     (b)  If the corporation waives its first option to repurchase the real property provided in subsection (a), a qualified nonprofit housing trust shall have the option to purchase the real property at a price that shall not exceed the sum of:

     (1)  The original cost to the purchaser, as defined in rules adopted by the corporation;

     (2)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

     (3)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

     (4)  The corporation's share of net appreciation in the real property to be paid as determined under rules adopted pursuant to chapter 91, when applicable.

     (c)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, and if the corporation or the qualified nonprofit housing trust selected by the corporation does not exercise the option to purchase the real property as provided in subsection (a) or (b), then the corporation shall require the purchaser to sell the real property to a "qualified resident" as defined in section 201H-32, and upon the terms that preserve the intent of this section and sections 201H-49 and 201H-50, and in accordance with rules adopted by the corporation.

     (d)  The corporation may waive the restrictions prescribed in subsections (a) through (c) if:

     (1)  The purchaser wishes to transfer title to the real property by devise or through the laws of descent to a family member who would otherwise qualify under rules established by the corporation;

     (2)  The sale or transfer of the real property would be at a price and upon terms that preserve the intent of this section without the necessity of the State repurchasing the real property; provided that, in this case, the purchaser shall sell the real property and sell or assign the real property to a person who is a "qualified resident" as defined in section 201H-32; [and] provided further that the purchaser shall pay to the corporation its share of appreciation in the real property as determined in rules adopted pursuant to chapter 91, when applicable; or

     (3)  The sale or transfer is of real property subject to a sustainable affordable lease as defined in section 516-1.

     (e)  The corporation may release the restrictions prescribed in subsections (a) through (c) if the real property is financed under a federally subsidized mortgage program and the restrictions would jeopardize the federal government's ability to recapture any interest credit subsidies provided to the homeowner.

     (f)  The restrictions prescribed in this section and sections 201H-49 to 201H-51 shall be automatically extinguished and shall not attach in subsequent transfers of title when a qualified nonprofit housing trust becomes the owner of the real property pursuant to subsection (b); or a mortgage holder or other party becomes the owner of the real property pursuant to a mortgage foreclosure, foreclosure under power of sale, or [a] conveyance in lieu of foreclosure after a foreclosure action is commenced; provided that the mortgage is the initial purchase money mortgage, or that the corporation consented to and agreed to subordinate the restrictions to the mortgage when originated, if the mortgage is not the initial purchase money mortgage; or when a mortgage is assigned to a federal housing agency.  Any law to the contrary notwithstanding, a mortgagee under a mortgage covering real property or leasehold interest encumbered by the first option to purchase in favor of the corporation, [prior to] before commencing mortgage foreclosure proceedings, shall notify the corporation in writing of:

     (1)  Any default of the mortgagor under the mortgage within ninety days after the occurrence of the default; and

     (2)  Any intention of the mortgagee to foreclose the mortgage under chapter 667 forty-five days [prior to] before commencing mortgage foreclosure proceedings;

provided that the mortgagee's failure to provide written notice to the corporation shall not affect the mortgage holder's rights under the mortgage.  The corporation shall be a party to any foreclosure action, and shall be entitled to its share of appreciation in the real property as determined under this chapter in lien priority when the payment is applicable, and if foreclosure occurs within the ten-year period after the purchase, the corporation shall also be entitled to all proceeds remaining in excess of all customary and actual costs and expenses of transfer pursuant to default, including liens and encumbrances of record; provided that the person in default shall be entitled to an amount that shall not exceed the sum of amounts determined pursuant to subsection (a)(1)(B) and (C).

     (g)  The provisions of this section shall be incorporated in any deed, lease, agreement of sale, or [any] other instrument of conveyance issued by the corporation.  In any sale by the corporation of real property for which a subsidy or deferred sales price was made by the corporation, the amount of the subsidy or deferred sales price described in subsection (a)(4)(B), a description of the cost items that constitute the subsidy or deferred sales price, and the conditions of the subsidy or deferred sales price shall be clearly stated at the beginning of the contract document issued by the corporation.  In any sale in which the corporation's share of appreciation in real property is a restriction, the terms of the shared appreciation equity program shall be clearly stated and included as an exhibit in any deed, lease, agreement of sale, or [any] other instrument of conveyance.

     (h)  This section need not apply to market-priced units in an economically integrated housing project, except as otherwise determined by the developer of the units; provided that preference shall be given to qualified residents in the initial sale of market-priced units.

     (i)  The corporation [is authorized to] may waive any of the restrictions set forth in this section in order to comply with or conform to requirements set forth in federal law or regulations governing mortgage insurance or guarantee programs or requirements set forth by federally chartered secondary mortgage market participants.

     (j)  Notwithstanding any law to the contrary, if real property is purchased by a qualified nonprofit housing trust pursuant to subsection (b), the housing trust shall establish new buyback restrictions for the purpose of maintaining the unit as affordable for as long as practicable, or as otherwise required by the corporation.

     (k)  A qualified nonprofit housing trust shall report the status and use of its housing units to the corporation by November 30 of each calendar year.

     (l)  This section shall not apply to any transfers of Hawaiian home lands under the Hawaiian Homes Commission Act, 1920, as amended."

     SECTION 2.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 3.  This Act shall take effect on July 1, 3000; provided that the amendments made to section 201H-47, Hawaii Revised Statutes, by section 1 of this Act shall not be repealed when that section is reenacted on June 30, 2028, pursuant to section 5 of Act 92, Session Laws of Hawaii 2023.

Report Title:

Housing Development Programs; HHFDC; Restrictions on Transfer; Hawaiian Home Lands; Exception

Description:

Exempts transfers of Hawaiian Home Lands from transfer restrictions for real property under housing development programs of the Hawaii Housing Finance and Development Corporation.  Effective 7/1/3000.  (HD2)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

RELATING TO RESTRICTIONS ON THE TRANSFER OF REAL PROPERTY UNDER CHAPTER 201H, HAWAII REVISED STATUTES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 201H-47, Hawaii Revised Statutes, is amended to read as follows:

     "§201H-47  Real property; restrictions on transfer; waiver of restrictions.  (a)  The following restrictions shall apply to the transfer of real property developed and sold under this chapter, whether in fee simple or leasehold:

     (1)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum of:

          (A)  The original cost to the purchaser, as defined in rules adopted by the corporation;

          (B)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

          (C)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

          (D)  The amount, if any, previously paid by the purchaser to the corporation as the corporation's share of net appreciation in the real property;

     (2)  The corporation may purchase the real property either:

          (A)  By conveyance free and clear of all mortgages and liens; or

          (B)  By conveyance subject to existing mortgages and liens.

          If the real property is conveyed in the manner provided in subparagraph (A), it shall be conveyed to the corporation only after all mortgages and liens are released.  If the real property is conveyed in the manner provided in subparagraph (B), the corporation shall acquire the real property subject to any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.

              The corporation's interest created by this section shall constitute a statutory lien on the real property and shall be superior to any other mortgage or lien, except for any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; any mortgage insured or held by a federal housing agency; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.  The amount paid by the corporation to the seller shall be the difference, if any, between the purchase price determined by paragraph (1)(A) to (D), and the total of the outstanding principal balances of the mortgages and liens assumed by the corporation;

     (3)  A purchaser may refinance real property developed and sold under this chapter; provided that the purchaser shall not refinance the real property within ten years from the date of purchase for an amount in excess of the purchase price as determined by paragraph (1)(A) to (C); provided further that the purchaser shall obtain the corporation's written consent if any restriction on the transfer of the real property remains applicable;

     (4)  After the end of the tenth year from the date of initial purchase or execution of an agreement of sale, the purchaser may sell the real property and sell or assign the property free from any price restrictions; provided that the purchaser shall be required to pay to the corporation the sum of:

          (A)  The balance of any mortgage note, agreement of sale, or other amount owing to the corporation;

          (B)  Any subsidy or deferred sales price made by the corporation in the acquisition, development, construction, and sale of the real property, and any other amount expended by the corporation not counted as costs under section 201H-45 but charged to the real property by good accounting practice as determined by the corporation whose books shall be prima facie evidence of the correctness of the costs;

          (C)  Interest on the subsidy or deferred sales price, if applicable, and any other amount expended at a rate established by the corporation computed as to the subsidy or deferred sales price, if applicable, from the date of purchase or execution of the agreement of sale, and as to any amount expended, from the date of expenditure; provided that the computed interest shall not extend beyond thirty years from the date of purchase or execution of the agreement of sale of the real property.  If any proposed sale or transfer will not generate an amount sufficient to pay the corporation the sum as computed under this paragraph, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum as computed under paragraphs (1) and (2); and

          (D)  The corporation's share of appreciation in the real property as determined under rules adopted pursuant to chapter 91, when applicable;

     (5)  Notwithstanding any provision in this section to the contrary, pursuant to rules adopted by the corporation, the subsidy or deferred sales price described in paragraph (4)(B) and any interest accrued pursuant to paragraph (4)(C) may be paid, in part or in full, at any time; and

     (6)  Notwithstanding any provision in this section to the contrary, the corporation's share of appreciation in the real property described in paragraph (4)(D):

          (A)  Shall apply when the sales price of the real property that is developed and sold under this chapter is less than the then-current, unencumbered, fair market value of the real property, as determined by a real property appraisal obtained prior to the closing of the sale;

          (B)  Shall be a restriction that runs with the land until it is paid in full and released by the corporation, or extinguished pursuant to subsection (f); and

          (C)  May be paid, in part or in full, at any time after recordation of the sale.

     (b)  If the corporation waives its first option to repurchase the real property provided in subsection (a), a qualified nonprofit housing trust shall have the option to purchase the real property at a price that shall not exceed the sum of:

     (1)  The original cost to the purchaser, as defined in rules adopted by the corporation;

     (2)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

     (3)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

     (4)  The corporation's share of net appreciation in the real property to be paid as determined under rules adopted pursuant to chapter 91, when applicable.

     (c)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, and if the corporation or the qualified nonprofit housing trust selected by the corporation does not exercise the option to purchase the real property as provided in subsection (a) or (b), then the corporation shall require the purchaser to sell the real property to a "qualified resident" as defined in section 201H-32, and upon the terms that preserve the intent of this section and sections 201H-49 and 201H-50, and in accordance with rules adopted by the corporation.

     (d)  The corporation may waive the restrictions prescribed in subsections (a) through (c) if:

     (1)  The purchaser wishes to transfer title to the real property by devise or through the laws of descent to a family member who would otherwise qualify under rules established by the corporation;

     (2)  The sale or transfer of the real property would be at a price and upon terms that preserve the intent of this section without the necessity of the State repurchasing the real property; provided that, in this case, the purchaser shall sell the real property and sell or assign the real property to a person who is a "qualified resident" as defined in section 201H-32; and provided further that the purchaser shall pay to the corporation its share of appreciation in the real property as determined in rules adopted pursuant to chapter 91, when applicable; or

     (3)  The sale or transfer is of real property subject to a sustainable affordable lease as defined in section 516-1.

     (e)  The corporation may release the restrictions prescribed in subsections (a) through (c) if the real property is financed under a federally subsidized mortgage program and the restrictions would jeopardize the federal government's ability to recapture any interest credit subsidies provided to the homeowner.

     (f)  The restrictions prescribed in this section and sections 201H-49 to 201H-51 shall be automatically extinguished and shall not attach in subsequent transfers of title when a qualified nonprofit housing trust becomes the owner of the real property pursuant to subsection (b); or a mortgage holder or other party becomes the owner of the real property pursuant to a mortgage foreclosure, foreclosure under power of sale, or a conveyance in lieu of foreclosure after a foreclosure action is commenced; provided that the mortgage is the initial purchase money mortgage, or that the corporation consented to and agreed to subordinate the restrictions to the mortgage when originated, if the mortgage is not the initial purchase money mortgage; or when a mortgage is assigned to a federal housing agency.  Any law to the contrary notwithstanding, a mortgagee under a mortgage covering real property or leasehold interest encumbered by the first option to purchase in favor of the corporation, prior to commencing mortgage foreclosure proceedings, shall notify the corporation in writing of:

     (1)  Any default of the mortgagor under the mortgage within ninety days after the occurrence of the default; and

     (2)  Any intention of the mortgagee to foreclose the mortgage under chapter 667 forty-five days prior to commencing mortgage foreclosure proceedings;

provided that the mortgagee's failure to provide written notice to the corporation shall not affect the mortgage holder's rights under the mortgage.  The corporation shall be a party to any foreclosure action, and shall be entitled to its share of appreciation in the real property as determined under this chapter in lien priority when the payment is applicable, and if foreclosure occurs within the ten-year period after the purchase, the corporation shall also be entitled to all proceeds remaining in excess of all customary and actual costs and expenses of transfer pursuant to default, including liens and encumbrances of record; provided that the person in default shall be entitled to an amount that shall not exceed the sum of amounts determined pursuant to subsection (a)(1)(B) and (C).

     (g)  The provisions of this section shall be incorporated in any deed, lease, agreement of sale, or any other instrument of conveyance issued by the corporation.  In any sale by the corporation of real property for which a subsidy or deferred sales price was made by the corporation, the amount of the subsidy or deferred sales price described in subsection (a)(4)(B), a description of the cost items that constitute the subsidy or deferred sales price, and the conditions of the subsidy or deferred sales price shall be clearly stated at the beginning of the contract document issued by the corporation.  In any sale in which the corporation's share of appreciation in real property is a restriction, the terms of the shared appreciation equity program shall be clearly stated and included as an exhibit in any deed, lease, agreement of sale, or any other instrument of conveyance.

     (h)  This section need not apply to market-priced units in an economically integrated housing project, except as otherwise determined by the developer of the units; provided that preference shall be given to qualified residents in the initial sale of market-priced units.

     (i)  The corporation is authorized to waive any of the restrictions set forth in this section in order to comply with or conform to requirements set forth in federal law or regulations governing mortgage insurance or guarantee programs or requirements set forth by federally chartered secondary mortgage market participants.

     (j)  Notwithstanding any law to the contrary, if real property is purchased by a qualified nonprofit housing trust pursuant to subsection (b), the housing trust shall establish new buyback restrictions for the purpose of maintaining the unit as affordable for as long as practicable, or as otherwise required by the corporation.

     (k)  A qualified nonprofit housing trust shall report the status and use of its housing units to the corporation by November 30 of each calendar year.

     (l)  This section shall not apply to any transfers of Hawaiian home lands under the Hawaiian Homes Commission Act, of 1920, as amended."

     SECTION 2.  New statutory material is underscored.

     SECTION 3.  This Act shall take effect on July 1, 3000; provided that the amendments made to section 201H-47, Hawaii Revised Statutes, by section 1 of this Act shall not be repealed when that section is reenacted on June 30, 2028, pursuant to section 5 of Act 92, Session Laws of Hawaii 2023.

Report Title:

Housing Development Programs; HHFDC; Restrictions on Transfer; Hawaiian Home Lands; Exception

Description:

Exempts transfers of Hawaiian Home Lands from transfer restrictions for real property under housing development programs of the Hawaii Housing Finance and Development Corporation.  Effective 7/1/3000.  (HD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

relating to restrictions on the transfer of real property under chapter 201h, Hawaii Revised Statutes.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 201H-47, Hawaii Revised Statutes, is amended to read as follows:

     "§201H-47  Real property; restrictions on transfer; waiver of restrictions.  (a)  The following restrictions shall apply to the transfer of real property developed and sold under this chapter, whether in fee simple or leasehold:

     (1)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum of:

          (A)  The original cost to the purchaser, as defined in rules adopted by the corporation;

          (B)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

          (C)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

          (D)  The amount, if any, previously paid by the purchaser to the corporation as the corporation's share of net appreciation in the real property;

     (2)  The corporation may purchase the real property either:

          (A)  By conveyance free and clear of all mortgages and liens; or

          (B)  By conveyance subject to existing mortgages and liens.

          If the real property is conveyed in the manner provided in subparagraph (A), it shall be conveyed to the corporation only after all mortgages and liens are released.  If the real property is conveyed in the manner provided in subparagraph (B), the corporation shall acquire the real property subject to any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.

              The corporation's interest created by this section shall constitute a statutory lien on the real property and shall be superior to any other mortgage or lien, except for any first mortgage created for the purpose of securing the payment of a loan of funds expended solely for the purchase of the real property by the seller; any mortgage insured or held by a federal housing agency; and any mortgage or lien created for any other purpose; provided that the corporation has previously consented to it in writing.  The amount paid by the corporation to the seller shall be the difference, if any, between the purchase price determined by paragraph (1)(A) to (D), and the total of the outstanding principal balances of the mortgages and liens assumed by the corporation;

     (3)  A purchaser may refinance real property developed and sold under this chapter; provided that the purchaser shall not refinance the real property within ten years from the date of purchase for an amount in excess of the purchase price as determined by paragraph (1)(A) to (C); provided further that the purchaser shall obtain the corporation's written consent if any restriction on the transfer of the real property remains applicable;

     (4)  After the end of the tenth year from the date of initial purchase or execution of an agreement of sale, the purchaser may sell the real property and sell or assign the property free from any price restrictions; provided that the purchaser shall be required to pay to the corporation the sum of:

          (A)  The balance of any mortgage note, agreement of sale, or other amount owing to the corporation;

          (B)  Any subsidy or deferred sales price made by the corporation in the acquisition, development, construction, and sale of the real property, and any other amount expended by the corporation not counted as costs under section 201H-45 but charged to the real property by good accounting practice as determined by the corporation whose books shall be prima facie evidence of the correctness of the costs;

          (C)  Interest on the subsidy or deferred sales price, if applicable, and any other amount expended at a rate established by the corporation computed as to the subsidy or deferred sales price, if applicable, from the date of purchase or execution of the agreement of sale, and as to any amount expended, from the date of expenditure; provided that the computed interest shall not extend beyond thirty years from the date of purchase or execution of the agreement of sale of the real property.  If any proposed sale or transfer will not generate an amount sufficient to pay the corporation the sum as computed under this paragraph, the corporation shall have the first option to purchase the real property at a price that shall not exceed the sum as computed under paragraphs (1) and (2); and

          (D)  The corporation's share of appreciation in the real property as determined under rules adopted pursuant to chapter 91, when applicable;

     (5)  Notwithstanding any provision in this section to the contrary, pursuant to rules adopted by the corporation, the subsidy or deferred sales price described in paragraph (4)(B) and any interest accrued pursuant to paragraph (4)(C) may be paid, in part or in full, at any time; and

     (6)  Notwithstanding any provision in this section to the contrary, the corporation's share of appreciation in the real property described in paragraph (4)(D):

          (A)  Shall apply when the sales price of the real property that is developed and sold under this chapter is less than the then-current, unencumbered, fair market value of the real property, as determined by a real property appraisal obtained prior to the closing of the sale;

          (B)  Shall be a restriction that runs with the land until it is paid in full and released by the corporation, or extinguished pursuant to subsection (f); and

          (C)  May be paid, in part or in full, at any time after recordation of the sale.

     (b)  If the corporation waives its first option to repurchase the real property provided in subsection (a), a qualified nonprofit housing trust shall have the option to purchase the real property at a price that shall not exceed the sum of:

     (1)  The original cost to the purchaser, as defined in rules adopted by the corporation;

     (2)  The cost of any improvements added by the purchaser, as defined in rules adopted by the corporation;

     (3)  Simple interest on the original cost and capital improvements to the purchaser at the rate of one per cent per year; and

     (4)  The corporation's share of net appreciation in the real property to be paid as determined under rules adopted pursuant to chapter 91, when applicable.

     (c)  For a period of ten years after the purchase, whether by lease, assignment of lease, deed, or agreement of sale, if the purchaser wishes to transfer title to the real property, and if the corporation or the qualified nonprofit housing trust selected by the corporation does not exercise the option to purchase the real property as provided in subsection (a) or (b), then the corporation shall require the purchaser to sell the real property to a "qualified resident" as defined in section 201H-32, and upon the terms that preserve the intent of this section and sections 201H-49 and 201H-50, and in accordance with rules adopted by the corporation.

     (d)  The corporation may waive the restrictions prescribed in subsections (a) through (c) if:

     (1)  The purchaser wishes to transfer title to the real property by devise or through the laws of descent to a family member who would otherwise qualify under rules established by the corporation;

     (2)  The sale or transfer of the real property would be at a price and upon terms that preserve the intent of this section without the necessity of the State repurchasing the real property; provided that, in this case, the purchaser shall sell the real property and sell or assign the real property to a person who is a "qualified resident" as defined in section 201H-32; and provided further that the purchaser shall pay to the corporation its share of appreciation in the real property as determined in rules adopted pursuant to chapter 91, when applicable; or

     (3)  The sale or transfer is of real property subject to a sustainable affordable lease as defined in section 516-1.

     (e)  The corporation may release the restrictions prescribed in subsections (a) through (c) if the real property is financed under a federally subsidized mortgage program and the restrictions would jeopardize the federal government's ability to recapture any interest credit subsidies provided to the homeowner.

     (f)  The restrictions prescribed in this section and sections 201H-49 to 201H-51 shall be automatically extinguished and shall not attach in subsequent transfers of title when a qualified nonprofit housing trust becomes the owner of the real property pursuant to subsection (b); or a mortgage holder or other party becomes the owner of the real property pursuant to a mortgage foreclosure, foreclosure under power of sale, or a conveyance in lieu of foreclosure after a foreclosure action is commenced; provided that the mortgage is the initial purchase money mortgage, or that the corporation consented to and agreed to subordinate the restrictions to the mortgage when originated, if the mortgage is not the initial purchase money mortgage; or when a mortgage is assigned to a federal housing agency.  Any law to the contrary notwithstanding, a mortgagee under a mortgage covering real property or leasehold interest encumbered by the first option to purchase in favor of the corporation, prior to commencing mortgage foreclosure proceedings, shall notify the corporation in writing of:

     (1)  Any default of the mortgagor under the mortgage within ninety days after the occurrence of the default; and

     (2)  Any intention of the mortgagee to foreclose the mortgage under chapter 667 forty-five days prior to commencing mortgage foreclosure proceedings;

provided that the mortgagee's failure to provide written notice to the corporation shall not affect the mortgage holder's rights under the mortgage.  The corporation shall be a party to any foreclosure action, and shall be entitled to its share of appreciation in the real property as determined under this chapter in lien priority when the payment is applicable, and if foreclosure occurs within the ten-year period after the purchase, the corporation shall also be entitled to all proceeds remaining in excess of all customary and actual costs and expenses of transfer pursuant to default, including liens and encumbrances of record; provided that the person in default shall be entitled to an amount that shall not exceed the sum of amounts determined pursuant to subsection (a)(1)(B) and (C).

     (g)  The provisions of this section shall be incorporated in any deed, lease, agreement of sale, or any other instrument of conveyance issued by the corporation.  In any sale by the corporation of real property for which a subsidy or deferred sales price was made by the corporation, the amount of the subsidy or deferred sales price described in subsection (a)(4)(B), a description of the cost items that constitute the subsidy or deferred sales price, and the conditions of the subsidy or deferred sales price shall be clearly stated at the beginning of the contract document issued by the corporation.  In any sale in which the corporation's share of appreciation in real property is a restriction, the terms of the shared appreciation equity program shall be clearly stated and included as an exhibit in any deed, lease, agreement of sale, or any other instrument of conveyance.

     (h)  This section need not apply to market-priced units in an economically integrated housing project, except as otherwise determined by the developer of the units; provided that preference shall be given to qualified residents in the initial sale of market-priced units.

     (i)  The corporation is authorized to waive any of the restrictions set forth in this section in order to comply with or conform to requirements set forth in federal law or regulations governing mortgage insurance or guarantee programs or requirements set forth by federally chartered secondary mortgage market participants.

     (j)  Notwithstanding any law to the contrary, if real property is purchased by a qualified nonprofit housing trust pursuant to subsection (b), the housing trust shall establish new buyback restrictions for the purpose of maintaining the unit as affordable for as long as practicable, or as otherwise required by the corporation.

     (k)  A qualified nonprofit housing trust shall report the status and use of its housing units to the corporation by November 30 of each calendar year.

     (l)  This section shall not apply to any transfers of Hawaiian home lands under the Hawaiian Homes Commission Act, 1920."

     SECTION 2.  New statutory material is underscored.

     SECTION 3.  This Act shall take effect upon its approval; provided that the amendments made to section 201H-47, Hawaii Revised Statutes, by section 1 of this Act shall not be repealed when that section is reenacted on June 30, 2028, pursuant to section 5 of Act 92, Session Laws of Hawaii 2023.

Report Title:

Housing Development Programs; Restrictions on Transfer; Hawaiian Home Lands; Exception

Description:

Exempts transfers of Hawaiian home lands from transfer restrictions for real property under Chapter 201H housing development programs.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

STAND. COM. REP. NO. 1282

Honolulu, Hawaii

RE:    H.B. No. 576

       H.D. 2

       S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-Third State Legislature

Regular Session of 2025

State of Hawaii

Sir:

     Your Committees on Hawaiian Affairs and Housing, to which was referred H.B. No. 576, H.D. 2, entitled:

"A BILL FOR AN ACT RELATING TO RESTRICTIONS ON THE TRANSFER OF REAL PROPERTY UNDER CHAPTER 201H, HAWAII REVISED STATUTES,"

beg leave to report as follows:

     The purpose and intent of this measure is to exempt transfers of Hawaiian home lands from transfer restrictions for real property under housing development programs of the Hawaii Housing Finance and Development Corporation.

     Your Committees received testimony in support of this measure from the Department of Hawaiian Home Lands and Hawaii Housing Finance and Development Corporation.

     Your Committees find that currently, Department of Hawaiian Home Lands projects using Hawaii Housing Finance and Development Corporation programs are subject to transfer restrictions, such as buyback and shared appreciation restrictions.  However, these restrictions may conflict with the objectives and requirements of Department of Hawaiian Home Lands programs.  This measure will address this issue by exempting transfers of Hawaiian home lands from Hawaii Housing Finance and Development Corporation's transfer restrictions, allowing the Department of Hawaiian Home Lands to manage the transfer of property under its own programs.

     Your Committees have amended this measure by clarifying that section 201H-47, Hawaii Revised Statutes, shall not apply to any transfers of Hawaiian home lands under the Hawaiian Homes Commission Act, 1920, as amended, as any such transfers shall be governed by the provisions of the Hawaiian Homes Commission Act, including but not limited to lease conditions stipulating that the lease shall be for a term of ninety-nine years.

     As affirmed by the records of votes of the members of your Committees on Hawaiian Affairs and Housing that are attached to this report, your Committees are in accord with the intent and purpose of H.B. No. 576, H.D. 2, as amended herein, and recommend that it pass Second Reading in the form attached hereto as H.B. No. 576, H.D. 2, S.D. 1, and be referred to your Committee on Ways and Means.

Respectfully submitted on behalf of the members of the Committees on Hawaiian Affairs and Housing,

STAND. COM. REP. NO.  1057

Honolulu, Hawaii

                , 2025

RE:   H.B. No. 576

      H.D. 2

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2025

State of Hawaii

Madame:

     Your Committee on Judiciary & Hawaiian Affairs, to which was referred H.B. No. 576, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO RESTRICTIONS ON THE TRANSFER OF REAL PROPERTY UNDER CHAPTER 201H, HAWAII REVISED STATUTES,"

begs leave to report as follows:

     The purpose of this measure is to exempt transfers of Hawaiian home lands from transfer restrictions of real property under housing development programs of the Hawaii Housing Finance and Development Corporation.

     Your Committee received testimony in support of this measure from the Department of Hawaiian Home Lands and Hawaii Housing Finance and Development Corporation.

     Your Committee finds that some Department of Hawaiian Home Lands (DHHL) projects have used Hawaii Housing Finance and Development Corporation (HHFDC) programs to assist in the financing of the projects.  However, use of HHFDC programs subjects the projects to transfer restrictions, such as buyback and shared appreciation restrictions, that may conflict with the objectives and requirements of the DHHL programs.  This measure exempts DHHL projects from the transfer restrictions typically applicable to HHFDC projects.

     Your Committee has amended this measure by making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.

     As affirmed by the record of votes of the members of your Committee on Judiciary & Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 576, H.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as H.B. No. 576, H.D. 2.

Respectfully submitted on behalf of the members of the Committee on Judiciary & Hawaiian Affairs,

STAND. COM. REP. NO.  584

Honolulu, Hawaii

                , 2025

RE:   H.B. No. 576

      H.D. 1

Honorable Nadine K. Nakamura

Speaker, House of Representatives

Thirty-Third State Legislature

Regular Session of 2025

State of Hawaii

Madame:

     Your Committee on Housing, to which was referred H.B. No. 576 entitled:

"A BILL FOR AN ACT RELATING TO RESTRICTIONS ON THE TRANSFER OF REAL PROPERTY UNDER CHAPTER 201H, HAWAII REVISED STATUTES,"

begs leave to report as follows:

     The purpose of this measure is to exempt transfers of Hawaiian Home Lands from the real property transfer restrictions under housing development programs of the Hawaii Housing Finance and Development Corporation.

     Your Committee received testimony in support of this measure from the Department of Hawaiian Home Lands and Hawaii Housing Finance and Development Corporation.

     Your Committee finds that under existing law, projects under the Department of Hawaiian Home Lands using a program under the Hawaii Housing Finance and Development Corporation are subject to transfer restrictions, such as buyback and shared appreciation restrictions.  However, your Committee further finds that these restrictions may conflict with the objectives and requirements of Department of Hawaiian Home Lands programs, as housing on Hawaiian Home Lands is governed by the Hawaiian Homes Commission Act, 1920.  This measure therefore clarifies that transfers of Hawaiian Home Lands are exempt from Hawaii Housing Finance and Development Corporation requirements.

Your Committee has amended this measure by:

     (1)  Changing the effective date to July 1, 3000, to encourage further discussion; and

     (2)  Making a technical, nonsubstantive amendment for the purposes of clarity, consistency, and style.

     As affirmed by the record of votes of the members of your Committee on Housing that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 576, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 576, H.D. 1, and be referred to your Committee on Judiciary & Hawaiian Affairs.

Respectfully submitted on behalf of the members of the Committee on Housing,