When your project pencils with 4% LIHTCs, tax-exempt bonds are usually the engine that makes the capital stack move. This guide walks first-time and growth-stage developers through roles, steps, CDLAC/CTCAC coordination, documents, and a realistic closing timeline—plus how tax-exempt bond financing counsel keeps everything on track. What Bond Financing Does (and When It Fits) Pairs with 4% LIHTCs; equity is lower than 9% deals but allocations are generally more available. Requires a qualified private activity bond issue from a conduit issuer (city, county, or state-level authority). Triggers the 50% Test: at least 50% of aggregate basis of land/building must be financed with tax-exempt bonds for the 4% credits to flow. Works best for larger projects or those with substantial soft funding to close the equity gap. Key Players & Their Roles Borrower/Sponsor: The project ownership entity. Conduit Issuer: Public agency that issues the bonds on your behalf. Investor/Syndicator: Purchases the 4% credits (via partnership equity). Bond Purchaser/Underwriter: Bank (private placement) or investment bank (public offering/limited offering). Credit Enhancer (if any): Bank or agency providing enhancement/liquidity. Trustee: Holds funds, administers indenture and payments. Low Income Housing Tax Credit attorney / tax-exempt bond financing counsel: Structures deal, manages issuer and purchaser requirements, ensures tax and regulatory compliance. Municipal/land-use counsel, lender’s counsel, and issuer’s counsel round out the table. The Process at a Glance (Start→Finish) Pre-Feasibility & Inducement Choose issuer and confirm path (private placement vs public sale). Adopt inducement resolution (lets you reimburse eligible pre-close costs and start the formal process). Start TEFRA* prep: draft notice for public hearing and approval required for private activity bonds. (*TEFRA = tax law public-approval step for bond-financed projects.) CDLAC/CTCAC Joint Application Use the unified application to seek both bond allocation (CDLAC) and credit reservations (CTCAC). Align your scoring/readiness strategy: site control, zoning/entitlements, soft funds, and shovel-readiness milestones. Coordinate with investor and lenders so pro formas and covenants match what you’re filing. Credit, Underwriting & Ratings (Deal-Dependent) Private placement: bank credit committee underwrites construction/perm terms and bond purchase agreement. Public sale: preliminary official statement (POS), ratings (if applicable), and investor roadshow; bond insurer/credit enhancement as needed. TEFRA Hearing & Approval Issuer conducts the public hearing and provides the necessary approval. After TEFRA approval, the bonds qualify as tax-exempt if all other tax rules are met. Allocation & Award Letters CDLAC allocation for volume cap (the bond authority) and CTCAC reservation of 4% credits. Confirm any issuer-level approvals, local resolutions, or state-level sign-offs tied to timing. Document Drafting & Negotiation Indenture/Trust Agreement (or Funding Loan Agreement for private placements). Loan Agreement/Regulatory Agreement (income/rent restrictions, use covenants). Tax Certificate & 50% Test planning; arbitrage/rebate covenants. Bond Purchase Agreement or Underwriting Agreement and Continuing Disclosure Agreement (if publicly offered). Equity documents: partnership/operating agreement, capital contribution and adjuster mechanics aligned to construction milestones. Intercreditor/assignment documents among construction, perm, soft lenders, and the trustee. Pre-Closing Conditions Third-party reports: appraisal, market study, environmental (Phase I/II), PNA/PCNA, plans/specs. Title/survey: endorsements, access, easements, and legal descriptions that match plans and lender requirements. Insurance: builder’s risk, GL, professional, workers comp; OCIP/CCIP if used. Construction: GMP or similar, schedule of values, and contingency levels acceptable to investor and lenders. Closing & Funding Execute bond, loan, equity, and regulatory documents. Fund into trustee-held accounts; align draws with bank/investor requisition procedures. Record regulatory/land-use restrictions; confirm cost-of-issuance caps and delivery of required opinions (borrower, tax, enforceability, issuer). Post-Closing Administration Track eligible basis; monitor 50% Test, applicable fraction, and draw sequencing. Comply with continuing disclosure (if public bonds), arbitrage rebate calculations, and CDLAC/CTCAC reporting. Prepare for placed-in-service, 8609 issuance, and conversion to perm. CDLAC/CTCAC Coordination Tips One Story, One Set of Numbers: Your joint application, investor underwriting, and bond documents need the same rents, incomes, AMIs, UAs, and unit counts. 50% Test Modeling: Sequence draws so tax-exempt sources properly “touch” basis; your model should forecast eligible basis at PIS and at cost certification. Covenant Crosswalk: Map CDLAC, CTCAC, bond, and soft-source requirements; draft conflict-resolution language and confirm the “most restrictive” terms drive operations. Readiness & Timelines: Align hearing dates, allocation meetings, and close-of-allocation deadlines with construction mobilization and permit timing. Realistic Timeline (Indicative; projects vary) Month 0–1: Select issuer, hire tax-exempt bond financing counsel, set structure (private vs public), draft inducement. Month 1–2: Inducement resolution; TEFRA notice prep; begin joint CDLAC/CTCAC application; investor and lender term sheets. Month 2–4: Submit joint application; complete TEFRA hearing/approval; continue lender/investor underwriting; draft bond and loan docs. Month 4–6: Receive allocation/reservation; finalize GMP; settle equity and bond purchase/underwriting agreements; lock title/endorsements. Month 6–7: Close bonds/loans/equity; record regulatory docs; start construction. (Add time for complex entitlements, environmental remediation, right-of-way, or credit enhancement.) Closing Checklist (What You’ll Actually Deliver) Corporate/authority: Borrower resolutions, incumbency certificates, opinions (borrower tax/enforceability; issuer/tax; sometimes investor), and authorization of bond issuance. Bond stack: Indenture or Funding Loan Agreement, Loan Agreement, Regulatory Agreement, Tax Certificate, Continuing Disclosure (if public), Bond Purchase or Underwriting Agreement, Official Statement (public deals). Credit & equity: Construction/perm loan agreements, intercreditor agreements, assignments to trustee, partnership/operating agreement, subscription, contribution schedule, adjusters, Year-15/ROFR provisions. Title/escrow & real estate: Pro forma policies with required endorsements, ALTA survey, escrow instructions, SNDA/subordination agreements, recorded covenants. Compliance: UA methodology, rent/income limit exhibits, fair housing and marketing plans, NAU policy, certifications calendar. Common Pitfalls (and How to Avoid Them) Missing the 50% Test: Model bond-financed basis early; plan draw sequencing; avoid “too much soft money first” during construction. Covenant Collisions: Unreconciled CDLAC/CTCAC vs soft-source vs bond covenants; solve with a covenant crosswalk and aligned exhibits before closing. UA/Rent Limit Drift: Forgetting to update utility allowances or using the wrong methodology can push gross rent over limits. Late TEFRA/Issuer Steps: Backward-plan hearing dates and governing-body approvals so allocation and closing windows aren’t missed. Disclosure Gaps (Public Deals): Keep project updates current for the POS/OS and continuing disclosure undertakings. How Counsel Adds Value Throughout Structuring: Right-size public vs private execution, enhancement, draw-down vs term, and soft-fund layering to keep the 50% Test safe. Document Harmony: Align definitions (AMI, set-asides, UA method, unit mix) across all documents to prevent post-close compliance conflicts. Timeline Control: Reverse-engineer critical path from allocation expirations and contractor mobilization; run the checklists and closings. Compliance-by-Design: Bake in extended-use, fair housing, and reporting workflows so compliance is a default—not a scramble. Ready to map your deal from inducement to ribbon-cutting? Contact us to speak with tax-exempt bond financing counsel about structuring, CDLAC/CTCAC coordination, and a closing timeline tailored to your project.

When LIHTC properties stumble, it’s rarely one giant mistake—it’s a handful of small misses that snowball into Form 8823s, equity adjusters, or even credit recapture. Here are the most common risks unique to LIHTC compliance California projects and how experienced counsel helps you prevent and cure them. Top Compliance Risks Extended Use Agreements & Conflicting Covenants Risk: Misalignment between TCAC regulatory agreements, bond covenants, local soft-money restrictions, and recorded land-use controls creates contradictory rent/income requirements. Counsel’s fix: Harmonize regulatory language at closing, add conflict-resolution clauses, and maintain a matrix showing which covenant governs each requirement across the compliance period and extended use. Income Certifications & Recertification Timing Risk: Incomplete third-party verifications, misapplied income exclusions, missing student status checks, or late annual recerts lead to reportable noncompliance. Counsel’s fix: Adopt written verification standards, recert calendars, and QA checklists; train site staff; review borderline files; spot-check calculations; confirm student-rule exceptions are documented. Next Available Unit (NAU) & Over-Income Mismanagement Risk: Failure to promptly rent the next available unit of comparable or smaller size at the over-income tenant’s building/stack can destroy applicable fraction and trigger credit loss. Counsel’s fix: Create NAU tracking logs, define “comparable unit” in policy, and implement an alert workflow so leasing prioritizes NAU compliance. Rent Limits, Utility Allowances & Fee Policies Risk: Incorrect UA source or late UA updates push gross rent above limits; “mandatory” amenity or parking fees effectively increase rent. Counsel’s fix: Calendar UA updates (PHA, HUD, or engine-approved method), document the methodology, and vet all fees against gross rent rules before implementation. Unit Mix, Applicable Fraction & Eligible Basis Drift Risk: Conversions of common areas, amenity changes, or unit repurposing alter eligible basis or reduce the applicable fraction without anyone recalculating impacts. Counsel’s fix: Require legal review before space conversions; maintain a living as-built/unit-mix schedule; update applicable fraction models after any physical changes. Habitability, Accessibility & Fair Housing Risk: Unresolved habitability issues, uncorrected accessibility barriers (federal/California requirements), or marketing/tenant selection missteps lead to enforcement actions and 8823s. Counsel’s fix: Integrate fair housing and reasonable accommodation procedures, document UFAS/ADA/California accessibility compliance, and keep a repair SLA with escalation paths. Student Rule & Household Composition Changes Risk: All-student households without a valid exception remain in place or become one post-lease; undocumented household members cause income/rent errors. Counsel’s fix: Standardize student questionnaires, recheck status at recert, and require prompt household update forms with targeted re-verification. Casualty Loss, Displacement & Restoration Deadlines Risk: Fire/flood units are offline too long or restored without requalifying tenants; temporary relocation violates rent/income rules. Counsel’s fix: Pre-approved casualty protocols, timeline tracking to placed-back-in-service, and relocation agreements vetted for rent and recert implications. Transfers, Refinances & Ownership Changes Risk: Entity transfers or refinancing that trigger new covenants or break existing ones without re-underwriting compliance. Counsel’s fix: Make compliance review a condition precedent to any transfer/refi; update regulatory crosswalks; notify investors/issuers and obtain required consents. Recordkeeping, 8823 Responses & Cure Windows Risk: Incomplete files, missing third-party docs, and slow responses to agency findings escalate minor issues into credit recapture risks. Counsel’s fix: File taxonomy and retention policies; mock audits; designate a response lead; provide factual, time-stamped cure evidence within agency deadlines. Where Recapture Risk Hides Sustained rent or income noncompliance that isn’t cured within allowed periods. Failure to maintain applicable fraction/low-income set-asides. Inaccurate UA leading to months of over-rent. Student rule violations. Unremedied habitability/accessibility issues affecting eligible basis or qualified occupancy. Missed NAU placement causing building-level disqualification. Post-closing covenant conflicts that force noncompliance with at least one program. Practical Mitigations—What Counsel Puts in Place Compliance Playbook: Property-specific manual covering certifications, NAU, UAs, fees, student rules, fair housing, relocation, and casualty . Calendar & Alerts: Automated reminders for UA updates, rent/income limits, recerts, marketing reports, and annual owner certifications. File QA & Mock Audits: Quarterly sampling with corrective action plans; pre-agency audit file scrubs. Covenant Crosswalk: One-page dashboard mapping TCAC, bond, and soft-fund requirements with the “most restrictive” flagged. Change-Control Policy: Legal review required before any fee, amenity, space use, transfer, or refinancing change. Training & Delegation: Annual training for site teams and regional managers; named compliance owner with authority to escalate. 8823 Response Kit: Templates, exhibits list, and timeline tracker to document cures quickly and thoroughly. How a Lawyer Adds Ongoing Value Interprets gray areas and negotiates pragmatic cures acceptable to investors, lenders, and agencies. Aligns regulatory agreements at closing so you don’t inherit conflicts you can’t meet. Builds systems that prevent errors—so compliance happens by default, not heroics. Coordinates with your investor to minimize adjusters and protect developer fee timing. If you want a property-specific plan to reduce findings and avoid recapture, contact us to discuss a pragmatic strategy for LIHTC compliance California—including extended use agreements, income certifications, NAU tracking, and audit readiness.

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