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December 17, 2020
What Does the Potential Passage of Prop 19 Mean?
By: D. Keith Dunnagan, Esq.
November 17, 2020
Property tax portability (Statewide Proposition 19) was on the ballot this year. As of today, the measure appears likely to pass with approximately 51.1% of the current vote tally. Proposition 13 (1978) has shaped the way property taxes are calculated for homeowners in California for decades, by allowing parents to pass their property to their children while keeping their same property tax basis. However, as property values have increased statewide, seniors who wanted to downsize sometimes felt trapped in their home. Changing homes in many cases meant increased value and increased taxes. Seniors on fixed incomes could not afford the increased property tax.
Prior to Prop 19, only a few California counties allowed seniors to transfer their property tax basis to a new home in the new county. Most counties prohibited such transfer of an existing tax basis. This was one of the key selling points for proponents of this year’s Prop 19. While it appears likely to pass, the election will not be certified until December 11, 2020, and there are still outstanding ballots to process. But assuming Prop 19 passes and becomes law, what does it mean for California property tax issues?
First, Prop 19 would allow a property tax basis transfer between counties for three groups of people: individuals that are (1) over the age of 55; (2) severely disabled; or (3) victims of wildfire or natural disaster. To transfer the tax basis, the eligible individual must acquire a replacement property at or below the full cash value of the current home. If the replacement property has a full cash value that exceeds the value of the replaced property, the new tax basis would be calculated by adding the excess value to the cash value of the new property for property tax purposes. The individual must claim the homeowner’s exemption at the time of the purchase or transfer in order to avoid reassessment, but there is a one-year cure period.
Second, Prop 19 changes the tax basis for inherited property. Under existing law, property transferred between parent and child was always exempt from reassessment. Under Prop 19, if passed, transfer of properties between parent and child will retain its current property tax basis only if it is maintained as a primary residence by the child. If the child does not maintain its primary residence in the transferred property, the property will be reassessed for tax purposes. This means, for example, that if mom and dad transfer a rental property to their child and that child maintains its rental/investment property characteristic, it would be subject to reassessment.
Now, you might be wondering, what happens to properties that were transferred between parent and child prior to the passage of Prop 19 that are used as rental property. Let’s say, mom and dad transferred their primary residence to their child in 2013 and that property has been consistently used as a rental property since the child received it — will it be subject to reassessment now? That is a good question, and it may take some test cases to make it through the courts before we know for sure. But, based upon the text of the Proposition, it seems that this situation would not result in a reassessment. Sec. 2.1(d) states: “Subdivision (h) of Section 2 [which exempts a transfer of a principal residence to a child and does not require a child to maintain the use as a primary residence] shall apply to any purchase or transfer that occurs on or before February 15, 2021 (effective date), but shall not apply to any purchase or transfer occurring after that date.” Thus, it appears that a child could receive mom and dad’s primary residence prior to the effective date and keep the parents’ property tax basis without being required to maintain the property as a primary residence.
However, if the same scenario transfer occurred after the effective date, the child would have to maintain the received property as a principal residence to maintain the property tax basis. Sec. 2.1(c)(1) of Prop 19 specifically requires that “the property continues as the family home of the transferee.”
One thing is certain, if you are considering an inter-family transfer in the foreseeable future, there may be some tax benefits to completing that transfer before the effective date of Prop 19. The attorneys at BPE Law have significant experience in advising realtors, investors and property owners related to their real estate needs and goals.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
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