David Ogden, Kelly Dunbar and Samuel Strongin recently published an article in The Real Estate Finance Journal titled, “A Constitutional Analysis of the Affordable Housing Credit Improvement Act of 2019.”
Excerpt: This article considers the constitutionality of certain provisions of proposed legislation, the Affordable Housing Credit Improvement Act of 2019. One provision of the bill—apparently offered in legislative response to a federal court decision in Washington state—is plainly structured to rewrite or retroactively change the interpretation of thousands of existing contracts between non-profit entities and private investors in low-income housing properties across the country, thereby reallocating existing property rights in ways that differ from the original agreements and expectations of the parties. Because this legislative provision falsely describes this change as a “clarification” and because, by its terms, it applies retroactively to negotiated private agreements entered into decades before the date of its enactment, it raises serious, and likely fatal, constitutional concerns.
