Author: Trey Jackson

Government Funding Deadline Extended to Dec. 18 as Pandemic Relief Package Proposals Face “COVID Cliff”

Posted on by Trey Jackson

Architect of the Capitol

Congress this week extended government funding until Dec. 18 to avert a government shutdown and give bipartisan negotiators more time to finalize a pandemic relief bill, which remains at an impasse over business liability and state and local government aid provisions. President Trump is expected to approve the one-week spending bill before current funding expires tomorrow.  (CNBC, Dec. 11)

  • Policymakers engaged in intense pandemic aid negotiations also face the expiration of unemployment and housing benefits scheduled at the end of this month. This “Covid cliff” includes the Dec. 31 expiration of a national eviction moratorium by the Centers for Disease Control. (CNBC, Dec. 4 and The Hill, Dec. 9)
  • House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Mitch McConnell (R-KY) recently signaled their goal was to combine a 2021 fiscal year spending bill with pandemic relief as part of a massive “omnibus” bill this month before recessing. (Politico, Dec. 4)
  • McConnell this week backed a $916 billion GOP pandemic aid proposal released Dec. 8 by Treasury Secretary Steven Mnuchin, while Democratic leaders support a $908 billion proposal issued by a bipartisan group of lawmakers last week. (BGov, Dec. 10)
  • The bipartisan coalition on Dec. 9 released details on its $908 billion stimulus proposal that includes $25 billion for residential rental assistance, state and local aid, augmented unemployment insurance benefits, a scaled-down Paycheck Protection Program (PPP) – as well as money for vaccine development, supply, and testing and tracing programs. (Framework summary for details on the bipartisan Emergency COVID Relief Act of 2020, Dec. 9)
  • Although the dueling relief plans are close in total costs, significant policy differences over business liability and state and local government aid threaten the completion of negotiations. (Wall Street Journal, Dec. 9)
  • The bipartisan group reportedly agreed this week on a needs-based formula to distribute $160 billion in state and local aid, but will not release details until compromise language addressing liability is finalized. (CQ, Dec. 9 and BGov, Dec. 10)
  • Sen. Chris Coons (D-DE) on Dec. 9 said that emerging liability language may include a six-month moratorium on coronavirus-related lawsuits that would give states time to develop their own protections. An “affirmative defense” provision may also be included to counter excessive claims against institutions subject to lawsuits. (Roll Call, Dec. 9)

Pelosi yesterday suggested that discussions over the emergency legislation could now stretch beyond the holiday season. “If we need more time, then we take more time. But we have to have a bill and we cannot go home without it,” Pelosi said. “I would hope that it would honor the December 18th deadline … We’ve been here after Christmas, you know.” (Business Insider, Dec. 10)

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Policymakers Face Government Funding Deadline as Talks Renew on Pandemic Relief

Posted on by Trey Jackson

U.S. Capitol Dome with flag

House Speaker Nancy Pelosi (D-CA) today said that Senate Majority Leader Mitch McConnell (R-KY) agreed to aim for combining a pandemic relief package with government funding legislation in an “omnibus” bill that would prevent a partial shutdown later this month. (Politico, Dec. 4)

  • Pelosi referred to the goal for attaching a coronavirus relief measure to the must-pass spending bill, stating, “That would be a hope, because that is the vehicle leaving the station. We would want a big, strong vote.”
  • McConnell commented on his discussion with Pelosi, stating, “… we had a good conversation. I think we’re both interested in getting an outcome, both on the omnibus and on a coronavirus package.” (NPR, Dec. 4)
  • Negotiations over a COVID-19 stimulus package have been at an impasse for months – House Democrats passed a $2.2 trillion relief bill, Senate Republicans favored a $500 billion measure and the Trump administration offered a ceiling of $1.8 trillion. (Roundtable Weekly, Nov. 6)
  • Congressional leaders renewed discussion this week about pandemic relief after a bipartisan group of Senate and House members proposed a compromise $908 billion package that attracted the support of Pelosi and Senate Minority Leader Chuck Schumer (D-NY). (BGov, Dec. 3)   
  • The bipartisan stimulus proposal includes $25 billion for “rental assistance,” state and local aid, augmented unemployment insurance benefits, a revival of the Paycheck Protection Program (PPP) and other small business relief, as well as money for vaccine development, supply, and testing and tracing programs. (“What’s in the $908 Billion Bipartisan Stimulus Proposal?” by The Committee for a Responsible Federal Budget, Dec. 2) 
  • Pelosi also said, “There is momentum — there is momentum with the action that the senators and House members in a bipartisan way have taken.” (Politico, Dec. 4)
  • President-elect Biden issued a statement today supporting pandemic-related funding. “Any package passed in the lame duck session is not enough,” Biden said. “It’s just the start.” (The Hill, Dec. 4)

  • Government funding is currently scheduled to expire on Dec. 11. That deadline for combining fiscal 2021 appropriations and a coronavirus relief deal could lead to a one-week stopgap bill, giving lawmakers until Dec. 18 to pass a massive “omnibus” bill before Congress breaks for recess. (CQ, Dec. 4)    

Pelosi today said, “Don’t worry about a date. It will be in sufficient time for us to get it done. The sooner the better but not at the expense of the initiatives that we need to address in the bills.” She added, “We’ll take the time we need and we must get it done. We cannot leave without it.” (CQ and The Hill , Dec. 4)

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Regulators Urge Banks to Cease Use of LIBOR for New Contracts by End of 2021 as Benchmark Rate is Scheduled to Sunset on Legacy Contracts in June 2023

Posted on by Trey Jackson

Libor transition to SOFR image

US and UK regulators are urging banks using the London Interbank Offered Rate (LIBOR) as a benchmark interest rate to stop writing new LIBOR contracts by the end of 2021, while most legacy contracts will be able to mature before use of the rate sunsets in June 2023. (Federal Reserve and Wall Street Journal, Nov. 30)

  • The UK-based ICE Benchmark Administration (IBA) announced it will consult in early December on its intention to cease US$ LIBOR. IBA intends to eliminate, subject to confirmation, one week and two month US$ LIBOR settings at the end of 2021. (Financial Conduct Authority, Dec. 4)
  • LIBOR is used as a reference rate in an estimated $200 trillion of financial contracts, including $1.3 trillion of commercial real estate loans.  UK financial authorities are phasing out LIBOR in response to manipulation concerns.
  • The Federal Reserve Board, Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation on Nov. 30 released a joint statement supporting the proposal and explaining that the June 30, 2023 proposed LIBOR cessation date would allow time for “legacy contracts”—USD LIBOR transactions executed before January 1, 2022—to mature.
  • The joint statement also notes, “Failure to prepare for disruptions to USD LIBOR, including operating with insufficiently robust fallback language, could undermine financial stability and banks’ safety and soundness.”
  • Federal Reserve Vice Chair for Supervision Randal K. Quarles on Nov. 30 said, “Today’s plan ensures that the transition away from LIBOR will be orderly and fair for everyone—market participants, businesses, and consumers.”
  • “These announcements represent critical steps in the effort to facilitate an orderly wind-down of USD LIBOR,” said John Williams, President of the Federal Reserve Bank of New York and Co-Chair of the Financial Stability Board’s Official Sector Steering Group. “They propose a clear picture of the future, to help support transition planning over the next year and beyond.”
  • The Fed has urged banks to prepare for a transition away from LIBOR to the Secured Overnight Financing Rate, which will use rates that investors offer for bank securities such as loans and assets backed by bonds, instead of relying on bank quotes.

The US Treasury Department on October 9, 2019 released proposed regulations to clarify the tax consequences of replacing LIBOR in existing financial contracts, including real estate loans. The proposed rules largely align with Roundtable recommendations submitted in June 2019. (Roundtable Weekly, June 7, 2019)

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Roundtable’s Q4 Sentiment Index Shows CRE Execs Optimistic Despite Serious Market Challenges; Walker Webcast Focuses on the Future of Urban Real Estate

Posted on by Trey Jackson

Commercial real estate executives expressed a modest increase in optimism about market conditions despite serious COVID-related challenges, according to The Real Estate Roundtable’s Q4 Economic Sentiment Index released this week. (Roundtable news release, Dec. 2)

  • A majority of respondents to the survey also noted that general conditions one year from now will be either “somewhat better” or “much better” than today. 
  • “Nearly every sector of the commercial real estate industry is facing serious economic challenges due to the overall impact of the pandemic. High unemployment, closed businesses, travel reductions and more have ripped into otherwise healthy real estate portfolios, creating challenges for all building owners in meeting their payroll, utility, tax and debt service obligations. Overall industry low leverage, general market balance, and functioning capital markets are positive influences that – when coupled with growing good news regarding vaccines – results in an increased optimism on part of industry leaders,” said Real Estate Roundtable President and CEO Jeffrey DeBoer. 
  • DeBoer also said,  “That optimism is dependent however on urgently-needed additional COVID relief from Washington and on the rapid testing and availability of effective vaccines. Federal lawmakers and regulators must support further assistance to bridge people and businesses into a post-COVID economy. Help is needed quickly for local governmental budgets, as well as for people and businesses negatively economically impacted by the pandemic. And some protection from unnecessary lawsuits must be provided to businesses to spur a more robust transition back to workplaces. ” 

The Roundtable’s Q4 Sentiment Index topline findings include:

  • The Sentiment Index registered a score of 44, an increase of two points from the third quarter of 2020. Respondents continued to express optimism about future conditions, and many noted increasingly positive trends in their own portfolios. Participants from the hospitality and retail sectors were understandably less optimistic, but felt market dynamics were strong enough that successful recoveries were possible.
  • Respondents referenced stronger markets for industrial and multifamily properties, while retail and hospitality properties were perceived as challenging in this environment. Dynamics in the office sector remain uncertain for most participants as work from home policies have created an uncertain future operating environment.
  • Lower leverage and continued forbearance have combined to allow owners to retain their positions, despite distress within their portfolios. As a result, owners are resistant to realizing discounted asset prices while buyers are seeking discounts as steep as 30% within the hospitality industry.
  • Most respondents cited accessible capital markets for high quality assets, and an increase in debt as well as equity availability. Many also noted the real estate market in general has lower levels of leverage than seen in the last downturn.

Future of Urban Real Estate

Walker Webcast with Mark Parrell and Owen Thomas image

On this week’s Walker Webcast, Roundtable Member Willy Walker (Chairman & CEO, Walker & Dunlop) discussed the pandemic’s impact on urban centers with Roundtable Board Member Owen Thomas (CEO, Boston Properties) and Roundtable Member Mark J. Parrell (President & CEO, Equity Residential Investments). 

  • Thomas commented, “It’s all about the virus. CEOs increasingly are understanding the problems with all remote work. Cultures are getting stretched and it is difficult to do more creative and strategic work, to procure new customers when everyone is working remotely. Companies want to get their employees back to work but companies are also very concerned about liability. What’s going to change all that around is health security.”
  • He added, “We have to get people back to the offices, back to the big cities for the overall economy to recover.”
  • Parrell noted, “When we think about our urban centers, there are places like New York that have been around 400 years and they’ve been resilient over time. (During) the last two decades in New York, up to the pandemic, the quality of life improved so much. These cities are capable of recovery, but good leadership is required. It will be very important that these cities be led by both public and private minded individuals who, like the Partnership for New York for example, are trying to put the city back together and on its feet. Once the cities re-energize, renters will return.”
  • Parrell added, “I do think there’s going to be a migration back into city centers, based initially on price and on activation as the vaccine gets broadly distributed.”

The pandemic’s ongoing impact on CRE and the policy response will be a focus of discussion during The Roundtable’s virtual State of the Industry Business Meeting and policy committee advisory committee meetings on January 27-28, 2021.

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Commercial Real Estate Executives Optimistic Despite Serious Current Market Challenges

Posted on by Trey Jackson

A quarterly survey of commercial real estate industry leaders reflects optimism about market conditions, despite ongoing serious COVID-related challenges. Sentiment is somewhat bouyed by positive supply, demand and capital access, as well as hopeful expectations for a vaccine.  

(WASHINGTON, D.C.) — Commercial real estate executives expressed a modest increase in optimism about market conditions, according to The Real Estate Roundtable’s Q4 Economic Sentiment Index, released today. A majority of respondents to the survey also noted that general conditions one year from now will be either “somewhat better” or “much better” than today. 

Those surveyed noted particularly challenging economic conditions in the hospitality and retail sectors; market uncertainty associated with future office space use; somewhat stable multifamily markets, and relatively stronger industrial and life science markets. They cited industry fundamentals, functioning capital markets, industry-wide low leverage and modest lender debt service forbearance as factors in the industry’s ability to thus far withstand the very serious COVID-related market challenges.

“Nearly every sector of the commercial real estate industry is facing serious economic challenges due to the overall impact of the pandemic. High unemployment, closed businesses, travel reductions and more have ripped into otherwise healthy real estate portfolios, creating challenges for all building owners in meeting their payroll, utility, tax and debt service obligations. Overall industry low leverage, general market balance, and functioning capital markets are positive influences that – when coupled with growing good news regarding vaccines – results in an increased optimism on part of industry leaders,” said Real Estate Roundtable President and CEO Jeffrey DeBoer. 

DeBoer added, “That optimism is dependent however on urgently-needed additional COVID relief from Washington and on the rapid testing and availability of effective vaccines. Federal lawmakers and regulators must support further assistance to bridge people and businesses into a post-COVID economy. Help is needed quickly for local governmental budgets, as well as for people and businesses negatively economically impacted by the pandemic.  And some protection from unnecessary lawsuits must be provided to businesses to spur a more robust transition back to workplaces. ” 

The Roundtable’s Q4 Economic Sentiment Index’s Topline Findings include:

  • Increased Optimism
    Respondents’ views reflected an increase in optimism for overall and near-term conditions (from a recent and sharp drop).
  • Better General Market Conditions
    A majority of respondents anticipated better market conditions in one year’s time, having noted worse market conditions today as compared with a year ago.
  • Stable Capital Markets
    Most respondents cited accessible capital markets for high-quality assets, and an increase in debt as well as equity availability. 
     

    Data for the Q4 survey was gathered by Chicago-based FPL Associates on The Roundtable’s behalf. 

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Treasury Requests Cessation of Several Fed Emergency Lending Programs and Return of Unused Funds; Senate Republicans Want Funds Repurposed for Pandemic Relief

Posted on by Trey Jackson

Treasury Secretary Steven Mnuchin sent a letter to Federal Reserve Chairman Jay Powell yesterday requesting that five emergency lending facilities, including the Main Street Lending Program (MSLP), should not be extended past their scheduled expiration on December 31, 2020. Mnuchin also requested the Fed to return unused Treasury loan funds from the programs for Congress to re-appropriate. (Treasury letter and The Wall Street Journal, Nov. 19)

  • The MSLP has the capacity to issue up to $600 billion in loans, yet has only completed approximately 400 loans totaling $3.7 billion. (Washington Post, Oct, 30)
  • The programs were created as part of the CARES Act coronavirus aid package passed in March, which included funding for all the Fed’s emergency lending facilities. (The Hill, Nov. 19)
  • Mnuchin’s Nov. 19 letter stated, “I am requesting that the Federal Reserve return the unused funds to the Treasury. This will allow Congress to re-appropriate $455 billion, consisting of $429 billion in excess Treasury funds for the Federal Reserve facilities and $26 billion in unused Treasury direct loan funds.”
  • The decision to end the lending facilities operations cannot be done unilaterally by Treasury; it would require cooperation by the Fed.
  • Chairman Powell issued a statement after markets closed yesterday that signaled disagreement. “The Federal Reserve would prefer that the full suite of emergency facilities established during the coronavirus pandemic continue to serve their important role as a backstop for our still-strained and vulnerable economy.” (Wall Street Journal, and CNBC interview with Mnuchin, Nov. 20)
  • Powell also said on Nov. 17 that “I don’t think it is time yet, or very soon” to close down the programs and that the Fed was “using all of our tools to support the recovery for as long as it takes until the job is well and truly done.” (Reuters, Nov. 17)
  • If the Trump administration decides not to extend the Fed programs, the new administration’s Treasury Department could reestablish them after Biden is inaugurated on Jan. 20. (Wall Street Journal, Nov. 10)

Pandemic Relief Package

Capitol side with sun and clouds

The request for the Fed to return unused funds from the lending programs comes as Congress remains at an impasse over costs for a pandemic relief package – the Trump administration offered a ceiling of $1.8 trillion, House Democrats passed a $2.2 trillion bill, and Senate Republicans favored a $500 billion measure. (Roundtable Weekly, Nov. 6)

  • Mnuchin and Senate Majority Leader Mitch McConnell (R-KY) today discussed a strategy for reviving talks between Republicans and Democrats over the stalled pandemic stimulus package. McConnell commented after the meeting about utilizing the unused Fed funds for a relief package, stating, “Congress should repurpose this money toward the kinds of urgent, important, and targeted relief measures that Republicans have been trying to pass for months, but which Democrats have repeatedly blocked with all-or-nothing demands.” (AP, Nov. 20)
  • President-elect Joe Biden on Monday urged Congress to advance the $2.2 trillion HEROES Act (H.R. 925) passed by the House. “Right now, Congress should come together and pass a COVID relief package like the HEROES Act that the House passed six months ago. Once we shut down the virus and deliver economic relief to workers and businesses, then we can start to build back better than before,” Biden said. (BGov, Nov. 16)
  • A report issued Wednesday by The Century Foundation shows that approximately 12 million Americans will lose unemployment insurance by the end of the year due to deadlines set by Congress early in the pandemic. (Washington Post and GlobeSt, “12M Workers Set to Lose Unemployment Benefits,” Nov. 19)

Lawmakers also face the added pressure of passing a government funding bill to avoid a Dec. 11 partial shutdown. Congress may choose to merge some COVID-19 aid measures into a sweeping multi-trillion-dollar omnibus funding bill during the lame-duck session to address both issues – or attempt to pass separate bills.

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Treasury Department Clarifies that Partnership-level State and Local Income Taxes are Deductible

Posted on by Trey Jackson
IRS building in Washington DC

The Treasury Department and IRS in a recent notice indicated their intent to issue proposed regulations clarifying that state and local income taxes imposed on, and paid by, a partnership or an S corporation are deductible in computing the partnership or S corporation’s taxable income.  (IRS Notice 2020-75) 

  • The announcement has important implications for real estate and other businesses operating in States with high state and local income tax burdens.  The Tax Cuts and Jobs Act of 2017 limits taxpayers’ ability to deduct state and local taxes (SALT) paid at the level of the individual taxpayer to no more than $10,000. 
  • The SALT limitation in TCJA applies to state and local taxes owed on individual wages, as well as state and local taxes paid on business income distributed to partners or S corporation shareholders.  In contrast, state taxes on corporate income remained deductible under the 2017 legislation.  However, prior to Notice 2020-75, it was unclear whether the SALT limitation applied to entity-level income taxes imposed on, and paid directly by, a partnership or S corporation.   
  • The Treasury announcement is an important step towards creating a more level playing field between publicly held C corporations and privately held pass-through businesses.   
  • Over the last three years, several States have modified their tax laws to allow partnerships, S corporations, and LLC’s to pay tax on their business income at the entity level.  States adopting an entity-level tax on pass-throughs include Connecticut, Louisiana, Maryland, New Jersey, Oklahoma, Rhode Island, and Wisconsin.  In most cases, the regimes are elective.  (CNBC, Nov. 18) 
  • Uncertainty about the federal tax treatment of these regimes has limited their effectiveness.  That could change quickly with the new Treasury guidance.  Similar legislative proposals are pending in Alabama, Arkansas, Michigan, and Minnesota and more may follow in light of Treasury’s clarification.  Entity-level regimes that comply with the Treasury regulations could help restore SALT deductions for a significant share of pass-through business income. 

Other tax and economic policy issues affecting real estate were addressed this week in a CBRE panel discussion that featured Roundtable Senior Vice President and Counsel Ryan McCormick and other industry experts. (video)

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Federal Pandemic Risk / Business Continuity Insurance Program Focus of House Hearing

Posted on by Trey Jackson

House lawmakers heard testimony about a possible federal pandemic risk / business continuity insurance program during a hearing yesterday entitled, Insuring against a Pandemic: Challenges and Solutions for Policyholders and Insurers. (Webcast of hearing and witness statements)

  • The Business Continuity Coalition (BCC), which includes The Real Estate Roundtable, submitted a hearing statement for the record to The House Financial Services Subcommittee on Housing, Community Development and Insurance. The subcommittee played a key role in last year’s seven-year extension of the Terrorism Risk Insurance Act (TRIA). (List of BCC members)
  • The BCC announced on Oct. 28 that it aims to develop a public/private business continuity insurance program with policymakers and other stakeholders. Such a program would enable employers, in the event of a government-ordered shutdown, to keep payrolls and supply chains intact; help limit job losses and furloughs; reduce stress on the financial system; and speed economic recovery when government-imposed limitations on operations are lifted. (BCC launch news release)
  • The BCC has emphasized that the COVID-19 crisis has shown the current lack of insurance availability for business continuity coverage for catastrophic pandemic events. This coverage gap raises concerns for policyholders and shows the need to enact an effective federal program.
  • The BCC hearing statement submitted this week notes, “… if not remedied, these insurance gaps will hinder any recovery, especially impacting business lending, new leasing activity, retail and hospitality, housing construction and development, as well as media production. Private insurance alone cannot and will not remedy the gaps – at least not in the short-term – but private insurers need to be part of the solution. What is urgently needed is a federally-backstopped availability mechanism similar to the highly successful one which Congress put in place for terrorism following 9/11– in short, a TRIA-style program for pandemic risk.”
  • A number of legislative proposals have been introduced to address the need for business continuity coverage – including the Pandemic Risk Insurance Act of 2020 (H.R. 6983).
  • Roundtable President and CEO Jeffrey DeBoer on Sept. 25 discussed prospects for developing and enacting a federal pandemic risk-business continuity insurance program with Rep. Steve Stivers (R-OH), the Ranking Member on the House Subcommittee. (Video of the discussion)
  • “We’ve seen business interruption insurance not being willing to cover any pandemics. I think you’re going to start to see lenders … requiring some type of pandemic coverage in their loan covenants in the coming years,” Stivers said.
  • He added, “I think we need to make sure that if this ever happens again and the government shuts down the economy, [Congress] holds people harmless and businesses harmless in the future.” (Video of the discussion)

DeBoer commented, “The pandemic crisis has exposed gaps in business continuity insurance coverage that can only be filled by a national program that will provide the American economy with the coverage it needs to minimize the economic impact of pandemic-related shutdowns and aid economic recovery.”

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Roundtable Holds Policy Town Hall; Post-election Congressional Session Faces Pandemic Relief Pressure, Government Funding Deadline

Posted on by Trey Jackson

Participants in RER Virtual Town Hall Nov9

The Real Estate Roundtable this week held a virtual “town hall” to discuss the election and its impact on national policy issues. Participating in the discussion were Sen. Michael Bennet (D-CO), Roundtable Chair Debra Cafaro (Chairman and CEO, Ventas, Inc.), Chair-Elect John Fish (Chairman and CEO, Suffolk), Roundtable President and CEO Jeffrey DeBoer and policy staff. The Nov. 9 discussion addressed a wide range of policy issues with nearly 200 Roundtable members in attendance. (Watch the discussion on The Roundtable’s YouTube Channel)

  • Cafaro said, “Our priorities are the COVID relief package that will come out of Congress, whether in the lame-duck session or later – a renters’ fund … (support) for state and local government relief … for the Paycheck Protection Program … funding for continued vaccine and testing and distribution … and liability protection of some type.”
  • Fish stated, “What is important for this COVID bill … if we don’t support the cities and towns and states, getting them back on their feet, the issues of lay-offs, restoring services and the impact on education … it is going to continue to spiral. If that happens, that is really detrimental.” He added those measures should be “coupled with PPP support because we need to put people back to work. They need payroll protection, the need jobs and that sense of security.” (Nov. 9 Roundtable Town Hall video)
  • Roundtable policy staff reviewed the lame-duck legislative outlook; tax and energy policy; and initiatives to create a Federal “business continuity” insurance program to mitigate future pandemic risk.
  • DeBoer also participated in a Nov. 12 NYU Shack Institute of Real Estate remote discussion on “Real Estate’s Priorities: Engaging with the New Administration” with Dr. Sam Chandan, PhD, Silverstein Chair of the Institute. (See Shack’s entire agenda)
  • “The narrow majorities in the House and Senate next Congress will place a premium on bipartisanship, and create hurdles for extreme legislation.  We expect a very active Congress. Large legislative agreements will be possible, but odds favor more targeted, constructive legislative initiatives. We look forward to offering our positive perspective on stabilizing the economy and moving forward,” DeBoer said. (Video with Sam Chandan)

Lame-Duck Agenda

DC Capitol Building

President-elect Joe Biden and Democratic leaders met this week about prospects for a bipartisan pandemic relief package during the post-election Congress, despite deadlocked negotiations over the cost and policy details of COVID-19 aid – and unlikely chances for compromise ahead of Georgia’s Senate elections on Jan. 5.

Both chambers of Congress return for their “lame-duck” session with a limited amount of working days before the new 117th Congress begins in January. The current Congress will need to pass a funding bill to keep the government open past Dec. 11 or face a shutdown – and negotiate a coronavirus stimulus package before several safety net programs expire in late December. It is possible the two measures could be combined in an “omnibus” bill. (BGov and Calculated Risk, Nov. 12)

  • Senate Majority Leader Mitch McConnell (R-KY) said this week that Congress should pass a limited stimulus bill before the end of the year, reiterating Senate Republicans’ opposition to a larger-scale package Democrats favor, signaling the current stalemate could extend into next year. (The Hill, Nov. 12 and Roundtable Weekly, Nov. 6)
  • Biden’s meeting with House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Charles Schumer (D-NY) yesterday addressed several outstanding issues facing Congress and the new administration.
  • According to a joint readout from Biden’s transition team and the congressional Democrats, “They discussed the urgent need for the Congress to come together in the lame duck session on a bipartisan basis to pass a bill that provides resources to fight the COVID-19 pandemic, relief for working families and small businesses, support for state and local governments trying to keep frontline workers on the payroll, expanded unemployment insurance, and affordable health care for millions of families.” (The Hill, Nov. 12)
  • Policymakers are reconvening amidst troubling signs affecting the economy, including a significant rise in COVID-19 cases, hospitalizations and deaths throughout the country as state and local governments consider reinstating lockdowns and school shutdowns. (Axios, Nov. 13)
  • Additionally, The Washington Post reported this week that regulators are increasingly concerned about US banks’ loan exposure to commercial real estate. The Nov. 11 article reports that if banks are forced to absorb losses on their $2 trillion in commercial real estate loans, the entire economy will suffer, according to Federal Reserve officials, economists and credit analysts.
  • “The Federal Deposit Insurance Corp. (FDIC) regards 356 banks as ‘concentrated’ in commercial real estate, based upon criteria such as the ratio of their CRE loans to their capital base and the pace of loan growth over the past three years,” according to the article.

Eric Rosengren, the president of the Federal Reserve Bank of Boston, said in a September speech, “I am especially worried about a second shoe dropping that will particularly affect small and medium-sized banks, which provide a large share of commercial real estate loans and small-business loans. A curtailment of credit resulting from such problems has caused serious head winds to recoveries in the past and may be a serious problem going forward.” (Washington Post, Nov. 11)

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Real Estate Coalition Urges Federal Banking Regulators to Extend Relief Period for COVID-19 Related Loan Modifications

Posted on by Trey Jackson

Logo compilation of Commercial Real Estate Coalition

A coalition of national real estate organizations, including The Real Estate Roundtable, this week urged federal banking agencies to provide additional guidance that would reaffirm financial institutions may use reasonable judgment when assessing credit risk during the unique circumstances of the pandemic – such as allowing borrowers and lenders additional time to see properties and loans through the pandemic.

  • The guidance would preserve financial institutions’ ability to continue work with borrowers and grant additional incremental accommodations that would total more than six months after December 31, without being classified as a troubled debt restructuring (TDR). (Coalition letter and MBA Newslink, Nov. 10)
  • Early in the crisis, the Federal Reserve joined the Office of the Comptroller of the Currency (OCC) and other banking regulators in a March 22 Interagency Statement that encouraged banks to avoid automatically categorizing COVID-19 related loan modifications up to 6 months as a TDR. (Roundtable Weekly, March 27)
  • The March joint statement also encouraged borrowers experiencing cash flow problems due to the pandemic to reach out to any FDIC-insured lenders about modifying their loans, without adverse consequences to the bank or the borrower that traditionally come with the TDR label.  
  • The statement included, “Short-term modifications made on a good faith basis in response to COVID-19 to borrowers who were current prior to any relief are not TDRs.  This includes short-term — for example, six months — modifications such as payment deferrals, fee waivers, extensions of repayment terms, or other delays in payment that are insignificant.”
  • On March 24, The Roundtable called on all owners and operators of business and residential rental real estate to voluntarily, proactively work in a positive and constructive manner with their COVID-19 impacted tenants respecting current rent obligations. (Roundtable news release, March 24)

Confluence of Events

OCC logo

  • A revised interagency statement released April 7 clarified the interaction between the March 22, 2020, interagency statement and section 4013 of the CARES Act, Temporary Relief from Troubled Debt Restructurings (section 4013). 
  • Many of the modifications granted under the revised Interagency Statement and section 4013 of the CARES Act are reaching the end of their six-month terms – at that same time that CARES Act protections are set to expire on December 31, 2020.
  • This confluence of these events creates significant, urgent challenges for any financial institution seeking to extend existing modifications of Covid-19 related loans past their six-month term.
  • The Nov. 10 coalition letter states, “…we urge the Agencies to provide guidance that a loan modification with a term greater than six months (e.g., up to 18 months combined) will not automatically result in a TDR under the Interagency Statements.”
  • “Because this issue is urgent, we request that the Agencies issue such a clarification and reaffirmation as soon as possible,” the letter concludes.
  • Brooks stated, “While banks remain sound, we see potential for troubled assets ahead in commercial and residential real estate, in small business and consumer lending, and in the travel and hospitality sectors in particular. Banks, particularly those with concentrations in those assets, must take a sober view of their risks and work with customers to the maximum extent possible consistent with safety and soundness.”

The Roundtable’s Real Estate Capital Policy Advisory Committee (RECPAC) continues its work with Washington policymakers to constructively support The Roundtable’s efforts to address the economic consequences of the COVID-19 crisis.

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