surplus land - statutes for affordable housing

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SURPLUS LAND

FLORIDA'S

STATUTES FOR AFFORDABLE HOUSING:

A GUIDEBOOK FOR IMPLEMENTATION USING BEST PRACTICES

02 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

ACKNOWLEDGMENTS

We could not have researched and written this guidebook without the generous support of our Partners in Housing, Bank of

America and BBVA Compass. We also thank the local governments and nonproﬁt organizations that responded to our surplus

land survey and who those who spoke with us to describe their eﬀorts to ensure that surplus lands are utilized to the greatest

extent to serve the public beneﬁt of a permanent supply of aﬀordable housing.

ABOUT THE FLORIDA HOUSING COALITION

The Florida Housing Coalition, Inc.,

is a nonproﬁt, statewide membership

organization whose mission is to bring

together housing advocates and

resources so that all Floridians have a

quality aﬀordable home and suitable living environment. The

Coalition provides professional consultation services through

training and technical assistance on aﬀordable housing and

related issues; supports community-based partnerships in

leveraging resources; and advocates for policies, programs

and use of funding resources that maximize the availability

and improve the quality of aﬀordable housing in Florida. The

Coalition carries out this mission recognizing that aﬀordable

housing is an integral part of community revitalization and

economic development.

SURPLUS LAND GUIDE

2018 1

CONTENTS

Preamble ........................................................................................................................... 3

Introduction ....................................................................................................................... 4

Intented Audience ........................................................................................................... 5

Statutory Background .......................................................................................................... 6

How Does Real Property Become Publicly Owned? ............................................................. 8

Tax Lien Escheatment ..................................................................................................... 8

Municipal Lien Foreclosure ............................................................................................. 8

Code Enforcement Liens ................................................................................................ 8

Direct Purchase ............................................................................................................. 9

Public Access to View the Inventory of Surplus Land ............................................................. 9

Surplus Land Experience: Survey Results ............................................................................... 10

Local Government Responses to Surplus Land Survey .......................................................... 10

Nonprofit Responses to Surplus Land Survey ......................................................................10

Best Practices in the Design of a Surplus Land Program ........................................................... 12

Regulatory Framework .....................................................................................................13

Surplus Land Statutes (Surplus Land Statutes (§125.379 and §166.0451, Fla. Stat.)...............13

Local Housing Assistance Plan (§420.9071(14), Fla. Stat.; §67-37.005. Fla. Admin. Code) ....13

Affordable Housing Incentive Strategies (§420.9076 (4), Fla. Stat.) ....................................13

Local Government Comprehensive Plan Housing Element (§163.3177(6)(f), Fla. Stat.) ..........13

Surplus Land Program Policies ..........................................................................................14

Recipients of Surplus Land .............................................................................................14

Use of Surplus Land ...................................................................................................... 14

Long Term Affordability .................................................................................................15

Reversion Clause ..........................................................................................................15

Governance and Oversight of Surplus Land Activities ..........................................................15

What makes a Surplus or Publicly Owned Parcel “appropriate” for Housing?..........................15

Surplus Land Program Procedures ..................................................................................... 16

Identification ...............................................................................................................16

Surplus Land ................................................................................................................17

Geographical Considerations for Multifamily Development ...............................................17

Value in private sale ......................................................................................................17

Parcels Deemed Suitable for Housing ................................................................................ 18

Marketing ......................................................................................................................18

Disposition .....................................................................................................................19

The Application Process ................................................................................................19

Surplus Land Expenses ................................................................................................ 20

Sale Proceeds ............................................................................................................. 20

Monitor Outcomes ...................................................................................................... 20

2 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

General Recommendations for the Design and Operation of a Surplus Land Program ..............21

Sample Surplus Land Programs ........................................................................................... 22

Miami-Dade Infill Housing Program .................................................................................. 22

City of Miami Infill Program .............................................................................................. 22

City of West Palm Beach ................................................................................................. 22

Community Land Trust Partnerships .................................................................................. 24

Town of Jupiter Workforce Housing Program ..................................................................... 24

St. Johns County Land Program ........................................................................................ 24

Appendix A: How Local Governments Obtain Surplus Properties ........................................... 25

Tax Lien Escheatment. ..................................................................................................... 25

Municipal Tax Lien Foreclosure ........................................................................................ 26

Code Enforcement Lien Foreclosure ................................................................................. 26

Direct Purchase of Land for Public Use .............................................................................. 26

Appendix B: Glossary of Terms ........................................................................................... 27

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PREAMBLE

It is our intent that this guidebook be accessible to local

government staﬀ to help them implement Florida’s

surplus land statutes that apply to aﬀordable housing.

We hope that housing staﬀ as well as other departments

involved in the management of surplus government-

owned lands gain the tools necessary to ensure that the

disposition of public lands meets and exceeds public

beneﬁt expectations by creating a permanent supply

of aﬀordable housing for Florida’s low- and moderate-

income residents.

Through this guidebook, we support and reinforce

the community land trust model, which helps ensure

that the disposition of public resources results in a

permanent supply of aﬀordable housing.

4 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

INTRODUCTION

Introduction

The purpose of this guidebook is to support local governments

in the implementation of surplus land disposition to beneﬁt

the development of aﬀordable housing as required by Florida

Statutes 125.379 and 166.0451 (2017), referred to in this

guidebook as the “surplus land statutes.” These laws require

all cities and counties in Florida to inventory and evaluate

local government-owned land within their jurisdictions for

its suitability for aﬀordable housing, and may recommend

disposal of the land by either sale or donation. This guidebook

provides best practices to enable local governments to comply

with the requirements in a manner

that results in the most positive public

benefit by creating a permanent

supply of affordable housing that

is available to low- and moderate-

income households. This guidebook

is designed to be accessible

electronically which will enable us to

update it as needed.

These laws were adopted in 2006

as part of a broader housing bill

designed to stimulate the construction

of affordable housing, but they

were preceded by earlier legislation

contained within the State Housing

Initiatives Partnership Act (SHIP Act) (s.

32, ch. 92-317, Laws of Fla.). Codiﬁed

in sections 420.907-420.9079, Florida

Statutes, the SHIP Act established a

funding source to support aﬀordable

housing incentives, and mandated that all counties and cities

receiving an allocation of SHIP funds appoint an Aﬀordable

Housing Advisory Committee (AHAC), and establish local

initiatives that foster affordable housing development

(§420.9072, Fla. Stat.). The SHIP Act lists eleven aﬀordable

housing incentives to be considered by the AHAC, one of which

addresses surplus land by recommending the “preparation of

a printed inventory of locally owned public lands suitable for

aﬀordable housing” (§420.9076(4)(j), Fla. Stat.).

This guidebook is also recommended for housing advocates

and nonproﬁt housing organizations to use in supporting

local government compliance with the surplus land statutes,

and ensuring that related programs are operated with clear

policies and procedures that meet the legislative goals of

using surplus lands for the production and preservation of

permanent aﬀordable housing (§§420.9072, 125.379(2),

166.0451(2), Fla. Stat.).

A recent Florida Housing Coalition survey of local governments

and nonprofit housing providers,

discussed in subsequent sections

of this guidebook, suggests that

most Florida cities and counties have

met the basic requirements of the

surplus land statutes by preparing

an inventory of real properties to

which they hold title that are deemed

appropriate for affordable housing.

However, policies and procedures for

publishing the inventory and disposing

of surplus lands are not uniform across

the state. We found that some local

government surplus land inventory

lists are easily accessible online, and

some jurisdictions have robust surplus

land programs that have resulted in the

disposition of many parcels to beneﬁt

aﬀordable housing, either through sale

or donation. However, we also found

that many local government surplus

land inventory lists are not accessible online, and there are no

apparent guiding policies or procedures to make a program

eﬀective. Some local governments that have programs for

disposing of surplus lands for aﬀordable housing do not require

the housing produced as a result of the program to remain

permanently aﬀordable. This guidebook provides direction

for creating a program that results in permanent aﬀordability

through the use of a Community Land Trust ground lease or

deed restrictions.

This guidebook provides

best practices to enable

local governments to

comply with the surplus

land statutes in a manner

that results in the most

positive public beneﬁt,

by creating a permanent

supply of aﬀordable

housing that is available to

low- and moderate-income

households

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Intended Audience

This guidebook is primarily for local governments and their aﬀordable housing staﬀ. It is suggested that the guidebook will

also be shared with other departments and citizen advisory committees that have a role and an interest in the disposition of

publicly owned land for aﬀordable housing.

This guidebook deﬁnes many terms, and examines the

procedures and participants involved in land title transfer

through tax deed, municipal tax foreclosure, and code

enforcement lien foreclosure, and discusses how such lands

may be converted to productivity as aﬀordable housing.

Along with a clear description of how real property becomes

surplus land, this guidebook includes a discussion of other

essential components of affordable housing, including

community land trusts. The guidebook presents the results

of a survey of SHIP program administrators and nonproﬁts in

a discussion of the status of surplus land programs in Florida.

The goal of this guidebook is to provide the tools and

information needed to unlock the value of government-

owned surplus lands. It is the further goal of this guidebook

to urge local government housing administrators to consider

use of the community land trust model in tandem with an

eﬀective surplus land disposition program. Applied together,

these two policy approaches can result in a robust program

that transforms formerly unproductive real property into a

permanent supply of housing that is aﬀordable to low- and

moderate-income households either as rental units or as

owner-occupied homes.

Readers of this guidebook are invited to contact the Florida Housing Coalition for additional assistance as they navigate the

pathways of recovering abandoned or surplus lands to create permanently aﬀordable housing for Floridians. Please email

us at info@ﬂhousing.org or call 850-878-4219 to request assistance.

INTRODUCTION

6 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

STATUTORY BACKGROUND

Statutory Background

In 2006, the Florida Legislature passed House Bill 1363, addressing the issue of aﬀordable housing in Florida (Act eﬀective July

1, 2006, ch. 06-69, Laws of Fla.). In part, the law mandates that by July 1, 2007 and every three years thereaer, each Florida

county and municipality shall prepare an inventory list of real properties owned by the local government in fee simple

title within its respective jurisdiction that are appropriate for use as aﬀordable housing (ch. 06-69, §§ 1, 4, Laws of Fla. at

2, 6 (codiﬁed at §125.379 and §166.0451, Fla. Stat.)).

More particularly, the inventory list must include the address

and legal description of each property, and indicate

whether the property is vacant or improved (§125.379(1)

and §166.0451(1), Fla. Stat.). The law further mandates that

the county or municipal governing body shall hold a public

hearing at which it must review and may revise the inventory

list, following which it must adopt a resolution including the

ﬁnal inventory list (§125.379(1) and §166.0451(1), Fla. Stat.).

The law speciﬁes that for purposes of listing and disposing of

the properties, the term “aﬀordable” has the same meaning

as in section 420.0004(3), Florida Statutes (§125.379(2) and

§166.0451(2), Fla. Stat.). That section deﬁnes “aﬀordable” as

where “monthly rents or monthly mortgage payments includ-

ing taxes, insurance, and utilities do not exceed 30 percent of

that amount which represents the percentage of the median

adjusted gross annual income” for households considered

to be extremely low-, very low-, low-, or moderate-income

(§420.0004(3), (9), (11), (12), (17), Fla. Stat.).

Aer a local government has prepared the ﬁnal inventory list

and adopted it by resolution, the local government may take

any of the following actions with respect to the listed properties:

Oﬀer the properties for sale and use the sale proceeds

to purchase land for aﬀordable housing development;

2. Oﬀer the properties for sale and use the sale proceeds to

increase the local government fund earmarked for aﬀord-

able housing;

Sell the properties with a restriction that requires the

properties be developed for use as permanent aﬀord

able housing;

Donate the properties to a nonproﬁt housing organization

for the construction of aﬀordable housing; or,

Otherwise make the properties available for use in the

production and preservation of permanent aﬀordable

housing. (§125.379(2) and §166.0451(2), Fla. Stat.).

Therefore, the surplus land statutes clearly mandate that each

Florida county and municipality must prepare and adopt

through public process an inventory of owned properties

suitable for use as aﬀordable housing, and they enumerate

viable options that local governments may use for disposing

of the inventoried properties.

The law does not provide a deﬁnition of what is “appropriate”

for aﬀordable housing.

Determining what is appropriate for aﬀordable housing is a

diﬀerent task from determining how to dispose of the proper-

ties that have been determined to be appropriate for aﬀordable

housing. The statute provides good guidance on disposition

and gives us insight into how to decide whether a property

is appropriate for aﬀordable housing. A good ﬁlter to use in

deciding whether county or city owned land is “appropriate”

for aﬀordable housing is to ask whether the property is “appro-

priate” for market rate housing. This is the same test we apply

when adhering to the Florida Fair Housing Act provision in

760.26, Florida Statutes.

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STATUTORY BACKGROUND

In other words, if the property could be developed for

residential purposes, including high-end housing, it can

also be developed for aﬀordable housing. All land that is

developable for residential purposes is appropriate for

aﬀordable housing. Types of properties that would not be

appropriate for aﬀordable housing would be slivers of land

remaining from right of way work, or properties that would

be unsafe for human habitation due to proximity of toxic uses.

Finding that a county or city owned property is appropriate for

aﬀordable housing, does not determine the ﬁnal disposition of

that property. The property is to be included in the inventory

list adopted by the jurisdiction. The disposition can follow any

one of these paths:

The property may be oﬀered for sale and the proceeds used

to purchase land for the development of aﬀordable hous-

ing or to increase the local government fund earmarked for

aﬀordable housing or

The property may be sold with a restriction that requires

the development of the property as permanent aﬀordable

housing, or

The property may be donated to a nonproﬁt housing

organization for the construction of permanent aﬀordable

housing, or

Alternatively, the jurisdiction may otherwise make the prop-

erty available or use for the production and preservation of

permanent aﬀordable housing.

8 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

How Does Real Property Become Publicly Owned?

As discussed above, the surplus land statutes require Florida counties and municipalities to prepare an inventory list of

lands owned within their respective jurisdiction, and suggest methods of disposing of those lands for aﬀordable housing.

In considering the nature of properties that might be included in a surplus lands list, it is helpful to understand how such

properties came to be publicly owned in the ﬁrst place. There are several typical pathways brieﬂy described below,

including tax deed escheatment, municipal lien foreclosure, code enforcement lien foreclosure, and direct acquisition.

The Appendix to this guidebook includes more detailed discussion of each of these pathways. It is important for local

government housing staﬀ and potential buyers to understand a property’s chain of title in order to anticipate potential

title defects, and to consider what investment of time and resources might be needed to cure such defects.

Tax Lien Escheatment

Counties come into title of real property through tax lien

escheatment aer an owner fails to pay property taxes, and

the tax lien certiﬁcate and tax deed sale processes fail to

procure a third-party purchaser (§197.502(8), Fla. Stat.). Tax

lien escheatment is a lengthy process that begins when taxes

on real property become delinquent on April 1 of the year

following the year in which the taxes were levied, and a tax

lien certiﬁcate is sold. If there are no bidders to purchase a

tax lien certiﬁcate for a parcel, that certiﬁcate is struck to the

county (§197.432(6), Fla. Stat.) Two years aer April 1 of the

year in which a tax certiﬁcate was issued to a county, the

county must apply for a tax deed if the property is valued at

$5,000 or more (§197.502(3), Fla. Stat.) The clerk of court

then schedules and administers a public tax deed sale

(§197.502(5)(c), Fla. Stat.). For certiﬁcates on which there are

no bidders for a tax deed, or on which the certiﬁcate holder

fails to timely pay amounts due for resale or issuance of a tax

deed, the clerk of court enters the parcels on a list of “lands

available for taxes” (§197.502(7), Fla. Stat.). Three years aer

the public tax deed sale date, properties that remain on the

“lands available for taxes” list escheat to the county, and the

clerk of court issues an escheatment tax deed vesting title in

the board of county commissioners (§197.502(8), Fla. Stat.).

Hence, the county acquires title by escheatment tax deed

ﬁve years aer a tax lien certiﬁcate is struck to the county.

If the property acquired by a county for delinquent taxes is

located within the boundaries of a municipality, the county

must either use the property for certain purposes or convey

it to the municipality (§197.592(3), Fla. Stat.).

Municipal Lien Foreclosure

Chapter 173, Florida Statutes, provides an optional in rem

process that municipalities may use to foreclose on the lien

of any tax, tax certiﬁcate, or special assessment imposed by

the municipality, other than ad valorem taxes collected by

the county tax collector (§173.01, Fla. Stat.). A municipality

may ﬁle a foreclosure action in circuit court to foreclose

its tax lien aer two years from the date the tax became

delinquent or the city issued a tax certiﬁcate, or aer one

year from the date any special assessment became due and

payable (§173.03(1), Fla. Stat.). If judgment is entered for

the municipality, the court appoints a special magistrate to

sell the lands to the highest bidder (§173.09(1), Fla. Stat.).

If the sale fails to procure a suﬃcient bid, the municipality

is entitled to bid the whole amount due, and the special

magistrate will convey the property (§173.09(2), Fla. Stat.).

Code Enforcement Liens

The Local Government Code Enforcement Boards Act,

sections 162.01-162.13, Florida Statutes, provides an

optional process for counties and municipalities to impose

administrative ﬁnes and other noncriminal penalties for local

ordinance violations. If a violation continues aer notice and

opportunity to cure, a code inspector refers the matter to the

code enforcement board or magistrate for hearing (§§162.03-

162.06, Fla. Stat.).). Administrative ﬁnes may be imposed only

aer notice and opportunity to cure, and subsequent notice

and opportunity to present evidence and be heard before the

code enforcement board or magistrate (§§162.06-162.09,

Fla. Stat.). A local government may record in the county

oﬃcial records a certiﬁed copy of the order imposing a ﬁne,

and the order constitutes a lien against the land on which the

violation exists, and any other real or personal property the

violator owns within the county (§162.09(3), Fla. Stat.). Three

months aer the date of ﬁling its lien, the local government

may initiate a court proceeding to foreclose against the

STATUTORY BACKGROUND

SURPLUS LAND GUIDE

2018 9

violator’s property (§162.09(3), Fla. Stat.). If judgment is

entered in favor of the local government, the property will

be subject to foreclosure sale (§162.09(3), Fla. Stat.).

Direct Purchase

Local governments routinely acquire land for speciﬁc uses,

such as parks and public buildings. On occasion, local

governments ﬁnd they no longer need previously acquired

land for the original intended use or any other use. Such

land may then be deemed “surplus,” and available for use

as aﬀordable housing, or sold for another purpose, with the

proceeds used for aﬀordable housing.

Public Access to View the Inventory of Surplus Land

In developing this guidebook, the Florida Housing Coalition

conducted online searches of Florida county websites to

determine whether surplus land inventory lists were being

made readily accessible to the public. We found that in

most cases we were unable to locate the inventory lists on

county websites. Only ﬁeen of sixty-seven counties were

identiﬁed online through links at the clerk of court websites,

where adopted resolutions were ﬁled. In response to our

recent survey, some local governments with active surplus

land programs indicated they had available properties, either

vacant lots or completed homes, readily available from the

housing department. In addition, some local government

housing administrators commented that the inventory list

changes frequently and is available by request so that the

most up to date version can be provided.

The results of this research compel us to recommend that as

a best practice, local governments make their surplus land

inventory list readily and easily available to the public, and

particularly to nonproﬁt housing organizations. This could

be accomplished by simply maintaining the current inventory

list on the local government website with instructions for

requesting properties for donation or purchase, or more

optimally, by including an interactive map that permits

searches for properties by area, type, and availability.

STATUTORY BACKGROUND

Local Surplus Land Inventory

10 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

Surplus Land Experience:

Survey Results

As discussed above in this guidebook, the surplus land statutes require all Florida counties and municipalities to prepare

an inventory list of real property owned in fee simple within their respective jurisdictions that are appropriate for aﬀordable

housing (§§125.379 and 166.0451, Fla. Stat.). The SHIP program provides funding to all 67 Florida counties and to 52

eligible municipalities as an incentive to form local housing partnerships and produce aﬀordable housing (§420.9072,

Fla. Stat.). In preparing this guidebook, the Florida Housing Coalition conducted an informal survey of local government

SHIP administrators and nonproﬁt housing organizations, seeking information on surplus land programs, policies, and

practices. We received 68 completed survey responses from local governments, and 64 completed survey responses

from nonproﬁt housing organizations. While this survey was informal and not intended to yield statistically signiﬁcant

data, the responses shed light on how eﬀectively the local government surplus land statutes are being implemented,

and provided some guidance on how to improve awareness and activities related to the disposition of surplus land for

aﬀordable housing.

Local Government Responses to Surplus

Land Survey

There were 68 local governments that responded to the survey.

How many surplus land parcels had been donated to

nonproﬁt organizations since 2013?

Thirty-eight percent of the respondents to this question

answered “zero.” Twelve percent had donated over 20

parcels. Fieen percent had donated between 10 and 20

parcels, and twenty-eight percent had donated between 1

and 9 parcels. One community had donated 50 parcels and

another had donated 35.

If your local government donated surplus land to

a nonproﬁt organization, did it require a reversion

process in the event the housing is not constructed or

rehabilitated?

Fiy percent of survey participants responded no, that there

was no reversion process, and ﬁy percent responded yes,

that there was a reversion process.

For properties donated to a nonproﬁt organization,

what was the long-term aﬀordability period required?

Thirty-two percent of the respondents to this question said

there was no long-term aﬀordability provision. From those that

indicated they do have a long-term aﬀordability provision, the

average aﬀordability requirement for homeownership units

was 16 years, and the average aﬀordability requirement for

rental units was 17 years.

For surplus land that is deemed unsuitable for

housing, yet has a ﬁnancial value, does the local

government sell this land and use the proceeds to

foster aﬀordable housing?

Forty-six percent of the respondents stated that yes, land is

sold and the proceeds are used for aﬀordable housing. Fiy-

three percent of the respondents reported that they do not sell

the land and use the proceeds for aﬀordable housing.

What is the process for nonproﬁt housing organizations

to acquire surplus land?

Thirty-two percent of respondents stated they had “no

speciﬁc procedure.” Twenty-three percent of respondents

stated that there is an open application cycle. Six percent of

respondents reported that there is a speciﬁc time request to

submit requests for land. Several respondents commented

that they use a Request for Proposals process. Another

respondent noted that if a property is located within a

Community Redevelopment Area, they must provide a

30-day notiﬁcation of the availability of the surplus land. (See

chapter 163.380, Fla. Stat.).

Nonproﬁt Responses to Surplus

Land Survey

There were 64 nonproﬁt organizations that responded to

the survey. Four of the respondents stated that they are a

community land trust entity.

SURVEY RESULTS

SURPLUS LAND GUIDE

2018 11

SURVEY RESULTS

Are you aware of the process to request surplus

land form your county or municipality to be used for

aﬀordable housing?

Forty percent responded “Yes,” and sixty percent responded

“No.”

Has your organization or another that you know of

in your community ever requested and received

donated surplus land to be used for aﬀordable

housing?

Forty-seven percent responded “Yes,” and ﬁy-three percent

responded “No.”

Local governments may sell surplus land that is

deemed unsuitable for aﬀordable housing, and use

the proceeds to purchase land for development

of aﬀordable housing or to increase public funds

earmarked for aﬀordable housing. Has your

organization received funding from the sale of local

government-owned surplus land?

None responded “Yes.” Sixty-two percent responded “No,”

and thirty-eight percent responded they did not know.

Do you think your local government could use assistance

in implementing a surplus lands program?

Ninety-two percent responded “Yes,” and eight percent

responded “No.”

Conclusion:

The response rate indicates local governments and nonproﬁt

organizations have an interest and perhaps some questions

about surplus land policies and procedures. The survey

results suggest that nonproﬁt housing organizations could

greatly beneﬁt from increased knowledge and awareness

of the potential resources available to them in the form of

local government-owned surplus lands. The survey results

also suggest that local governments could beneﬁt the public

interest by making their aﬀordable housing partners more

aware of the availability of, and process to, obtain surplus

land. Finally, the survey results indicate that in some cases

local governments are donating surplus properties for aﬀord-

able housing without including requirements for long-term

aﬀordability or reversion to the local government if the prop-

erty is not used for aﬀordable housing within a speciﬁed

time. This suggests local governments could beneﬁt from

technical assistance aimed at enhancing and improving their

policies and for disposing of surplus lands and formalizing

their procedures.

12 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

BEST PRACTICES

Best Practices in the Design of a

Surplus Land Program

SURPLUS LAND GUIDE

2018 13

BEST PRACTICES

Regulatory Framework

Surplus Land Statutes

(§125.379 and §166.0451, Florida Statutes)

The formalization of a surplus land program should begin with

these steps:

Determine which departments prepare the inventory

every three years.

Review how decisions are made on the suitability of

parcels for aﬀordable housing.

Determine how parcels are sorted for suitability for

aﬀordable housing or for other uses.

Review the procedures for preparing the inventory list and

presenting it to the governing body for public hearing and

adoption by resolution.

Identify how the inventory list is published and made

available to the public and to nonprofit housing

organizations.

Review the procedures for the sale of properties not

suitable for aﬀordable housing, and for the proceeds to

be used to purchase land for development of aﬀordable

housing or to increase the local government fund

earmarked for aﬀordable housing.

Local Housing Assistance Plan

(§420.9071(14), Fla. Stat.; §67-37.005. Fla. Admin. Code)

The Local Housing Assistance Plan (LHAP) provides the

descriptions and requirements for the local housing assistance

strategies and incentive strategies adopted by the local

government that will receive SHIP funds. If surplus lands will

be provided to a nonproﬁt housing organization along with

SHIP assistance to develop housing, the long-term compliance

and other requirements should be consistent with the LHAP.

Local governments that receive SHIP funding are required to

designate a Local Housing Assistance Trust Fund, which can

also be used to deposit proceeds from the sale of surplus lands

(§§125.379(2), 166.0451(2), Fla. Stat.).

Aﬀordable Housing Incentive Strategies

(§420.9076 (4), Fla. Stat.)

Local governments that receive SHIP funds are required

to include aﬀordable housing incentive strategies in their

adopted LHAP. An advisory committee is required to

review the local government comprehensive plan and

make recommendations on aﬀordable housing incentive

strategies in several areas, including the “preparation of a

printed inventory of locally owned public lands suitable for

aﬀordable housing” (§420.9076(4)(j), Fla. Stat.) The Florida

Housing Coalition recommends that local governments

include this strategy in their LHAP at the time of adoption,

and include policies and procedures on public access to

the inventory, and on how properties are added to the list.

Information on available surplus land should be included,

when applicable, on any notices of funding availability or

requests for proposals, along with an explanation of the

process for requesting and qualifying to obtain surplus land.

Local Government Comprehensive Plan Housing

Element

(§163.3177(6)(f), Fla. Stat.)

Every Florida county and municipality is required to adopt

and implement a comprehensive plan to guide future

development and growth (§163.3167(1), Fla. Stat.). Each

local government comprehensive plan must include a

housing element that plans for adequate housing for all

current and anticipated future residents of the jurisdiction,

and provides for adequate sites for future housing, including

housing that is aﬀordable to very low-income, low-income,

and moderate-income households (§163.3177(6)(f), Fla.

Stat.). Each county and municipality must also adopt land

development regulations to implement its comprehensive

plan (§163.3202(1), Fla. Stat.).

The housing element of a local government comprehensive

plan must include the formulation of housing implementation

programs. Having access to suitable land is essential for

the development of aﬀordable housing. A program for the

donation of government-owned surplus land for aﬀordable

housing is an eﬀective means of implementing the goals and

objectives of the housing element of the comprehensive

plan. The housing element should contain objectives and

policies that speciﬁcally support a program for donating

surplus land to nonproﬁt housing organizations. The policies

should deﬁne the speciﬁc priorities for the disposition of

properties, perpetual or long-term aﬀordability requirements,

and partnering with nonproﬁt housing organizations.

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Surplus Land Program Policies

The identiﬁcation and disposition of surplus lands

should follow a speciﬁc set of policies and procedures

to ensure the program is managed eﬃciently, fairly,

and transparently. Policies and procedures should be

consistent with the intent of the state statutes that local

governments use their surplus property to increase the

stock of aﬀordable housing, and in particular, aﬀordable

housing that is permanently aﬀordable. The program

should eﬀectively operate to increase the permanent

supply of affordable housing, reduce blight, and

increase the local government’s housing trust fund.

Recipients of Surplus Land

The local government surplus land disposition policy

should establish criteria for determining the eligibility of

aﬀordable housing developers who might purchase or

receive land as a donation.. Such a policy might include

a prioritized listing of nonproﬁt housing organizations,

such as community land trusts, that are committed to

creating permanently aﬀordable housing. The priority

list should also include nonproﬁt aﬀordable developers

such as certiﬁed Community Housing Development

Organizations, Community Development Corporations,

and Community Based Organizations. Other potential

recipients of surplus land that could be included on a

priority list are private builders or adjacent property

owners. The surplus land disposition policy should also

describe the proposal process for requesting surplus

land, and enumerate the documentation required to

submit a request. The surplus land disposition policy

should include a scoring rubric to ensure the selected

recipient and proposed project meet the stated

program objectives. Finally, the determination should

include the instrument the resulting aﬀordable housing

will be aﬀordable in perpetuity.

Use of Surplus Land

A surplus land disposition program may be useful to

revitalize neighborhoods that have experienced blight

or destabilization. Infill housing programs can be

implemented to prioritize uses that are consistent with

redevelopment or neighborhood improvement plans.

Surplus land can be a focal point of a revitalization eﬀort.

As such, it is important to formulate policy establishing

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2018 15

BEST PRACTICES

a preference framework for evaluating the potential of surplus

lands for use as affordable housing, multifamily housing,

pocket parks, side lots for adjacent owners, or neighborhood-

supported commercial uses.

Long Term Aﬀordability

The overarching public beneﬁt of surplus land policies is the

opportunity to create a supply of permanently aﬀordable

housing. The Community Land Trust model, in which a

nonproﬁt housing organization owns the land and conveys

the housing improvements subject to a ground lease, is an

optimal approach for ensuring long term aﬀordability. The

community land trust ground lease includes resale provisions

that require subsequent home buyers to meet income

eligibility criteria. In addition, the community land trust

retains a right of ﬁrst refusal to purchase the homes when the

original buyer wishes to sell. Housing subsidy programs also

provide long-term aﬀordability by requiring subsidy funds to

be repaid to the Housing Trust Fund. Restrictive covenants

may also be used to impose requirements that ensure long

term aﬀordability.

Reversion Clause

Surplus land donation must require that the land revert to the

donor should the terms of the donation agreement not be met.

Construction and occupancy must occur within a speciﬁed

time, oen 18 months to two years. This requirement allows

suﬃcient time for permitting, construction, and marketing

of homes. The requirement can be accomplished using

a reversion clause included on the face of the deed, and

enforced through provisions of the donation agreement.

Governance and Oversight of Surplus

Land Activities

The implementation of the surplus land statutes requires the

coordination of several local government departments. In

many jurisdictions, the stewardship of publicly owned land

is delegated to a real estate or lands department. The county

tax collector plays a role in the sale of tax lien certiﬁcates and

striking tax liens to the county, and the clerk of court issues

tax deeds. The local government attorney is involved in the

transaction of property transfers. In the case of earmarking

surplus land for aﬀordable housing, it is essential that the

housing department staﬀ be aware of these processes

to ensure that any properties that have development

potential are prioritized for aﬀordable housing and if not,

that the proceeds from the disposition shall be dedicated to

aﬀordable housing development.

The conveyance of publicly owned land requires public

approval, including a ﬁnal resolution by the local governing

body. To make these conveyances as transparent as possible

and to ensure public support, proposals should be taken up

by appointed citizen committees before being submitted to

the governing body for approval. A proposed disposition of

surplus land should be reviewed by the Aﬀordable Housing

Advisory Committee or a surplus land sub-committee.

What makes a Surplus or Publicly Owned

Parcel “appropriate” for Housing?

In general, land that is not suitable for development because

of environmental issues, or that is located near toxic or heavy

industrial uses, is also not appropriate for aﬀordable housing.

But land designated as a brownﬁeld may be appropriate for

aﬀordable housing development, particularly considering

incentives and resources that are speciﬁcally available to assist

in the redevelopment of brownﬁelds for aﬀordable housing

(see i.e. §376.30781(3)(d) and §212.08(5)(o), Fla. Stat.).

The phrase “appropriate for aﬀordable housing” should not

be interpreted to mean parcels that would not be desirable

for market rate developers. Aﬀordable housing should be

developed in areas of opportunities to the maximum extent

feasible. Areas of opportunity have indicators such as good

schools, shopping, employment, and access. Moreover,

facilitating the development of aﬀordable housing in Areas of

Opportunity is in the public interest and consistent with local

governments’ obligation to aﬃrmatively further fair housing

(see Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§

3601-3619 and 24 C.F.R. Part 5). Areas of Opportunity are

further described in the section below.

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Surplus Land Program Procedures

This section of the guidebook provides the framework with action steps to build and operate a local government surplus land

program that will meet program goals. The steps start with the identiﬁcation of surplus or publicly owned property, evaluation

and disposition paths. Eﬀective strategies and clear procedures can contribute to a program that operates eﬃciently and meets

its goals of increasing the supply of permanently aﬀordable housing.

The graphic below presents the basic decision-making process

in the disposition of a site once it is determined to be suitable or

not suitable for housing development.

Identiﬁcation

Local governments have been required to comply with the

surplus land statutes since 2007. Therefore, the starting

place for establishing a surplus land program is to review

the existing surplus land inventory list and note the types of

properties included. Next, review the list of all lands owned

by the local government. The use of computer soware, such

as GIS and modiﬁed GIS platforms, would be helpful to allow

these lists to be viewed with ﬁlters and sorting criteria that

would indicate the parcel is environmentally sensitive or not

suitable for safe residential uses, for example, adjacent to

industrial uses. Finally, review the original intended uses of

government-owned properties of interest to ensure that the

local government still intends to pursue that use.

It should be kept in mind that other taxing entities, such as

school districts, hospital districts, and water management

districts, also own land. At times, these entities declare

parcels to be surplus and subject to disposal. It is possible

that sites appropriate for aﬀordable housing might be among

those lands subject to disposal by other taxing authorities;

therefore, it is good practice to maintain contact and be

watchful of opportunities to obtain these lands.

SURPLUS LAND INVENTORY

EVALUATION PROCESS: Is it Suitable for Housing?

YES

No Cash Value

Cash Value

Remove from

Inventory

Return to Taxing

Authorities

Sell

Cash Proceeds to

Housing Trust Fund

Sell

Donate

Cash Proceeds to

Housing Trust Fund

Non-Proﬁt Developer &

Permanent Aﬀordability

SURPLUS LAND GUIDE

2018 17

BEST PRACTICES

Surplus Land

Take time to carefully review the inventory and description

of each listing. If it appears that a property has been on the

surplus land inventory list for over three years, this might be

an indication that the property should be oﬀered to other

taxing entities or other action taken to dispose of it.

Publicly Owned Land

Parcels on the surplus land inventory list have been

designated as surplus, or not needed for public uses by the

local government. The local government might own other

parcels that are not in active use but not yet designated as

surplus, which nonetheless would be suitable for aﬀordable

housing. Sometimes land is purchased for a speciﬁc public

use and not all of it is used. The housing department staﬀ

should routinely review any vacant land owned by the local

government, whether or not it is designated as surplus, for

its potential use for aﬀordable housing.

Geographical Considerations for Multifamily

Development

If it is likely that a housing developer might submit a proposal

under the competitive cycles of the Florida Housing Finance

Corporation (FHFC), review the site for its scoring potential.

Each FHFC Request for Application (RFA) identiﬁes speciﬁc

areas of opportunity and other locational qualiﬁcations.

These may include the following:

• Areas of Opportunity- FHFC places a priority on

the development of multifamily housing in non-

poverty areas. This is measured by a set of socio-

economic descriptors for each geographical area.

See http://www.ﬂoridahousing.org/programs/

developers-multifamily-programs/competitive/

areas-of-opportunity

• Is the property located in a Racially and Ethnically

Concentrated Area of Poverty (R/ECAP)? See

http://www.ﬂoridahousing.org/programs/

developers-multifamily-programs/competitive/

racially-and-ethnically-concentrated-areas-of-

poverty

• Is the property located in a Qualiﬁed Census Tract

(QCT)? See http://www.ﬂoridahousing.org/

programs/developers-multifamily-programs/

competitive/lda-information

• Limited Development Area-is the property near a

similar use that would detract from the marketability

of the property sharing its market and tenancy?

See http://www.ﬂoridahousing.org/programs/

developers-multifamily-programs/competitive/lda-

information

• Proximity to services. See the proximity list above

measure the distance of the site to those services if

this is a competitive point in a speciﬁc RFA.

Value in private sale

If a site has ﬁnancial value to a non-residential use, it should

be earmarked for sale with the proceeds to be deposited in

the local government fund earmarked for aﬀordable housing.

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Parcels Deemed Suitable for Housing

Once a local government has determined that publicly-

owned land is appropriate for aﬀordable housing, it must

decide whether to sell the land and use the proceeds to

purchase other land for aﬀordable housing, or increase

the local government fund earmarked for affordable

housing, or donate the land to a nonproﬁt housing partner

for development of affordable housing (§125.379 and

§166.0451, Fla. Stat.). If the land has more ﬁnancial value

than similar parcels, and if there is a possibility that the cost

to develop it may be higher, then selling the land might be the

best option. This option would also be appropriate for land

that is located in an area of very high taxable values, such as

coastal or inland waterfront properties, or within a community

with high homeowners’ association fees.

If the land appears to be buildable and marketable for

aﬀordable housing, it should be donated to a nonproﬁt

organization with speciﬁc requirements for perpetual or long

term aﬀordability and performance within a set timeframe.

If there is a mitigation program, such as a workforce housing

inclusionary zoning ordinance, land may be oﬀered for

donation by a developer in lieu of providing required housing

on site. This land should also be subject to the evaluation

procedure, just as surplus land would be.

Marketing

It is important that a local government’s program partners

be given access to the availability of surplus government-

owned land. For partners that also participate in the SHIP

program, Home Investment Partnership Program (HOME),

or Community Development Block Grant (CDBG) program,

the local government maintains contact databases for serving

notices of funding. Using the same contact databases,

the local government could serve notices of surplus land

availability. The existing local government website used for

publishing notices for funding programs is a good place to

also publish information related to surplus land. The inventory

should be posted with descriptions or interactive links that

provide location, site, zoning, and infrastructure information.

Notices should also be published when the triennial inventory

list is made in conformance with the surplus land statutes. A

good example is provided by the City of West Palm Beach.

Land that is proposed for sale can be listed with a selected real

estate broker who to manage the marketing and sale of the

properties. Some local governments procure the managing

broker along with other vendors such as title companies.

Below, the Community Land Trust of Palm Beach County

makes notice of homes for sale on its website. These homes

were built on surplus land provided to the organization by

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BEST PRACTICES

Palm Beach County. See http://www.ﬂoridahousing.org/

programs/developers-multifamily-programs/competitive/

areas-of-opportunity.

Disposition

It is essential to have a clear and eﬃcient disposition process

in place. This will maintain the good reputation of the program

for moving expeditiously and transparently. The disposition

process should be clearly delineated. Conﬂict of interest

policies should be clearly stated in program application

materials. The following points provide more detail on speciﬁc

parts of the disposition process.

The Application Process

The application or proposal to obtain one or more parcels of

surplus land should disclose the proposed use for the site and

the capacity of the applicant to carry out the project within

the prescribed timeframe. It is important to indicate whether

a proposed housing development is speculative, or there are

qualiﬁed buyers waiting to purchase. The application should

conﬁrm the long-term aﬀordability requirements. The targeted

income level of buyers or tenants should be indicated.

A scoring rubric should be used to evaluate each proposal, and

should include any priorities such as targeted income level or

community land trust applicant.

The agreement for conveyance of the land and development

of housing must address the form of the legal documents

including ground lease, deed restrictions, and deferred

second mortgages if these are applicable.

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Surplus Land Expense

It is important to recognize that the stewardship of surplus land

incurs expenses that must be borne by the program. These costs

can form a basis for the sales price for land to be sold but should

not be included in the donation process as they can make the

home unaﬀordable.

Some of these costs include:

• Acquisition costs. Costs incurred for original acquisition

of the publicly owned land depends on the process

through which title was acquired.

•

Title costs. Surplus land oen has a long history of liens and

title actions. Quiet title suit may be required to clear title

defects. This is usually performed by the local government

attorney or a selected private law ﬁrm. If the nonproﬁt

organization must conduct quiet title action there may be

assistance from the Aﬀordable Housing Grantee program

funded by the Florida Bar Foundation. Contact the Florida

Housing Coalition for information.

•

Maintenance Costs. Costs will be incurred to maintain

surplus land, including mowing, tree trimming, and debris

clearing.

•

Marketing. Advertisements will be required to market

properties and provide public notice of sale or Request

for Proposals.

•

Environmental. Some publicly-owned land will require

an environmental review or assessment, and potentially

remediation.

•

Survey. All properties should be surveyed to determine

the parcel boundaries and dimensions, and to identify

any encumbrances. The survey should also denote the

elevation of the site, and ﬂood zone.

•

Appraisal. An appraisal is not necessary at the time of

conveyance. An appraisal will be needed when the end

product is completed.

Sale Proceeds

It is important to keep track of the sale of surplus land to ensure

that proceeds are deposited into the local government fund

earmarked for aﬀordable housing, and used to further aﬀordable

housing goals. Some examples of how proceeds from the sale of

surplus land can be used include the development of aﬀordable

housing, purchase assistance, payment of infrastructure costs,

site maintenance and legal expenses.

Monitor Outcomes

Construction Completion. Housing staff will need to set

schedules and monitor for the completion of construction in

surplus land agreements. This will help ensure that projects are

completed timely, and the reversion clause is not triggered. Since

local government housing department staﬀ are typically familiar

with monitoring required for other assisted housing development

projects, this should not be a major concern.

Income veriﬁcation and certiﬁcation. The requirements for

determining income eligibility apply to surplus lands aﬀordable

housing processes just as they do for other assisted housing

development. The developer should be prepared to commit

to ensuring the process will occur according to program

requirements.

Ground Lease. Projects developed by community land trusts

involve the use of a 99-year ground lease. It is important that the

standard ground lease format be used and that the template

not be altered. Any special conditions should be achieved

through a lease addendum. Contact the Florida Housing

Coalition for the appropriate ground lease template.

Deed Restriction. If deed restrictions are used to ensure the

property will be aﬀordable for a determined period of time,

the text should be approved by the local government. Deed

restrictions might not have the same permanent aﬀordability

provisions as a 99-year ground lease.

Lien. If ﬁnancial assistance is provided, a mortgage lien should

be placed on the property that coincides with the term of the

deed restriction or ground lease. The lien should be assumable

by the community land trust in the event the property is sold,

and would then be transferred to a subsequent buyer to retain

the subsidies invested in the property by the local government.

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BEST PRACTICES

Surplus land programs should be narrowly focused on the

goal of returning surplus land to productive use and public

beneﬁt for aﬀordable housing. While it is appropriate to

oversee transactions for purposes other than aﬀordable

housing, such as environmental conservation or

commercial revitalization, it is best to maintain a clear focus

on the primary program goal, which is the production of

permanently aﬀordable housing.

Property disposition should recognize and be responsive

to the layers of public interest including environmental

conservation, historic preservation, and neighborhood

stabilization. Housing developers will evaluate proximity

features such as access to employment, transit, shopping,

medical facilities, and schools.

City and county departments need to closely coordinate

and cooperate with each other in operating their surplus

land programs. This applies in particular to public safety

and code compliance departments, ﬁscal operations,

legal counsel, and executive leadership. Senior

administrators need to understand the complexity of the

processes involved, and support the critical timeframes

required for acquisition, evaluation, and disposition of

real property.

While the surplus land program should operate with

a clear and focused goal, it must be able to navigate

among various government departments including

those involved with housing, planning and zoning,

code enforcement, tax collection, tax lien certiﬁcates,

lien foreclosure, and property appraisal.

An integrated, web-based property profile

management system is optimal for operation of a

surplus land program. Property disposition tracking

systems soware is available that can integrate ﬁscal,

maintenance, and disposition information on a platform

that provides mapping and reports of surplus land

transaction activity

6. Along with a robust tracking program, integration with

an eﬀective and enhanced GIS and parcel data system

is crucial to support eﬃcient collection of information

such as owners, liens, judgments, and other title data.

7. The surplus land program strategy must be both short

term and long term. The program is operated with

a strategic vision for the entire jurisdiction but that is

primarily focused on the production of housing for low-

and moderate-income households and the workforce.

The surplus land program operating budget may

require funding for the payment of court costs, judicial

proceedings, title work, legal expenses, maintenance,

marketing, sales transaction, and title transfer costs.

General Recommendations for the

Design & Operation of a Surplus Land Program

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SURPLUS LANDS SAMPLE

Sample Surplus Land Programs

Miami-Dade Inﬁll Housing Program

The Miami-Dade County Urban Inﬁll Program is designed

with the primary purpose of increasing the supply of

aﬀordable housing by the conveyance of municipally-owned

vacant land, and strategically acquired privately–owned

properties within targeted neighborhoods. The program

aims to eliminate blight and increase the tax rolls, like typical

land banks seen in other states. Yet, the program has a clear

focus on homeownership for very low-, low- and moderate-

income households. The program calls for an aﬀordability

period of twenty years.

Properties within the program include:

•

Government-owned property no longer in use or needed

• Surface parking lots of government-owned facilities

•

Land donated in lieu of satisfying inclusionary zoning

requirements

• Private donations of land other than in lieu donations

• Land held by nonproﬁts for future development

•

Land acquired speciﬁcally for aﬀordable housing using

revenue from in lieu fees and commercial linkage

fees. Land acquisition could focus on transit-oriented

development opportunities.

(Miami-Dade Urban Inﬁll Program Policies and Procedures, at

http://www.miamidade.gov/housing/library/guidelines/inﬁll/

inﬁll-housing.pdf )

City of Miami Inﬁll Program

The City of Miami land inventory is made up of properties

that it purchased from private owners using Neighborhood

Stabilization Program (NSP) assistance and other funding

sources. These properties had dilapidated or abandoned

buildings that were cleared. The City also owns properties

that it acquired through code enforcement lien foreclosures.

It does not have properties obtained through tax deeds,

although at times these are oﬀerd by the County. The City

would be responsible for paying court and other holding

costs on such properties.

Builder Program

The city hires builders to construct single family homes on

its surplus properties. Qualiﬁed low- and moderate-income

homebuyers can purchase the homes at a discount from the

actual cost of construction through assistance from the city.

The city holds a deferred, zero-percent second mortgage

with a 30-year term for the amount discounted from the actual

construction cost.

Developer Program

The city also works with partners, including a nonprofit

housing organization that is a community land trust. Parcels

are transferred to the community land trust by a purchase

agreement that is ﬁnalized when the community land trust

completes the construction of a home. The community land

trust retains title to the land, and conveys the improvements to a

homebuyer subject to a 99-year ground lease. The community

land trust has 24 months to complete the home.

Intermediary

The city works with a quasi-public intermediary, the Liberty

City Community Revitalization Trust (Liberty City Trust), to

manage the sale of the homes it has built. The Liberty City

Trust completes the buyer eligibility package and handles

the sales transaction.

(Per telephone conversation with George Mensa, Director,

Department of Community and Economic Development, City

of Miami, August 31, 2017.)

City of West Palm Beach

The City of West Palm Beach has a robust surplus land

program that has resulted in dozens of new homes built

for low- and moderate-income families. Due to the city’s

historical development pattern and its geographical network

of older neighborhoods, many properties were abandoned

and acquired through code enforcement lien foreclosure or

tax deed escheatment. Additionally, the city has purchased

many properties outright with Neighborhood Stabilization

Program (NSP) funds. The supply of parcels constantly

changes as the city receives tax deeds from the county,

clears title, and prepares the properties to be marketed both

for sale to the private sector and for donation to nonproﬁt

housing developers. A real estate ﬁrm is selected to market

the for-sale parcels on Multiple Listing Service (MLS) and the

city’s website. When properties are sold, the city deposits the

sale proceeds into its aﬀordable housing trust fund. Nonproﬁt

SURPLUS LAND GUIDE

2018 23

SURPLUS LANDS SAMPLE

housing organizations can also review the city-owned

property list and apply to receive properties by donation. A

committee reviews the applications, and donation recipients

have 18 months to complete the proposed developments.

While the city does not prioritize community land trusts for

receiving donated parcels, community land trusts are active

participants in the program. The city is in the process of

ramping up its code enforcement lien foreclosure process

to acquire properties with chronic problems so they can be

recovered and redeveloped.

(Per telephone conversation with Armando Afano, Director,

Housing and Community Development, September 1, 2017.

See http://gis.wpb.org/hcdstorymap/ )

Following is an excerpt from the City of West Palm Beach

housing assistance incentives program:

City Owned Properties As required by Florida Statute

166.0451, the Department of Housing and Community

Development maintains a listing of City owned

properties that are appropriate for use as affordable

housing. The property list shall be updated and

provided to the City Commission for surplus approval

when surplusing is required and for information

purposes no less than annually.

The Department of Housing and Community Development

is, upon approval of this Housing Assistance Incentives,

authorized to dispose of the properties for aﬀordable,

attainable or workforce housing purposes with the advice

and consent of the Mayor. The Mayor is authorized to

execute all documents necessary achieve the disposition.

The Methods of disposition may include sale of the

properties with the proceeds going to the Housing Trust

Fund; transfer of properties, at no cost, to a nonproﬁt for

the development of aﬀordable housing; sold to nonproﬁts

or private parties with a provision that the property be

used for an aﬀordable, attainable or workforce housing

projects; or the City may retain the properties to build or

preserve aﬀordable, attainable or workforce housing. The

City Commission shall be advised of all such dispositions

on a quarterly basis.

(West Palm Beach Housing Assistance Incentives Program at

9, Res. 84-16, City of West Palm Beach, 3/28/2016. See ht t p://

wpb.org/Departments/Housing-Community-Development/

Development-Incentives )

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Community Land Trust Partnerships

The Community Land Trust of Palm Beach County (CLTPB)

works closely with local governments, including West Palm

Beach and Palm Beach County, to obtain donations of

publicly-owned land. The donated land allows the CLTPB to

sell homes at an aﬀordable price to lower income households

because the price of the land is not included in the transaction.

The ground lease ensures homes are available in perpetuity

for aﬀordable housing. The CLTPB provides ownership as

well as rental housing using the community land trust model.

(For more information see Community Land Trust of Palm Beach

County website: http://cltofpbc.org/ )

Town of Jupiter Workforce

Housing Program

The Town of Jupiter adopted an inclusionary ordinance as

a means to implement its workforce housing program. The

ordinance requires aﬀordable workforce units to be included

in new developments, or in the alternative, the payment of

fees or donation of land in lieu of developing workforce units.

The Town partnered with a community land trust, which

will administer the program and manage the development

of workforce housing with support from funds generated

through the fees paid in lieu, or on land donated in lieu. While

the donated land may not be technically surplus, it is in the

public interest that this land be appropriately developed as

permanently aﬀordable housing. If the donated land is sold,

the proceeds are used for the development of permanently

aﬀordable housing.

The following text is excerpted from the Town of Jupiter

enacting ordinance:

Community land trust. The Town Council may authorize

the Town Manager to enter into an agreement with a

community land trust organization registered in Palm

Beach County to administer the Town's workforce housing

program.

s. 27-1, Ordinance No. 7-15, Town of Jupiter, May 19, 2015.

Fee, or donation of land, in lieu. Developers may pay a fee,

or donate land, in lieu of providing the number of workforce

housing dwelling units required by section 27-1675.43.

s. 27-1675.39(10), Ordinance No. 7-15, Town of Jupiter, May

19, 2015.

St. Johns County Land Program

St. Johns County took a diﬀerent approach to obtaining

and managing an inventory of land available for aﬀordable

housing. The county experienced a period of high growth

that involved the devlopment of many large Development

of Regional Impact (DRI) projects. The county negotiated

with the developers to mitigate their impact on the

demand for workforce housing. The county received

both land and close to $1 million in mitigation fees that

was used by nonproﬁt developers to build new housing,

or to acquire older housing for rehabilitation. The county

used DRI funds for infrastructure needed by an aﬀordable

housing development, and developed several projects

including housing for homeless youth and multifamily

rental properties. The county also acquired 35 lots that

were made available for single family development, known

as Hancock Place, developed by the St. Johns Housing

Partnership.

The housing trust funds are available for projects that are

solicited by requests for proposals from nonproﬁt housing

developers, redevelopment, and for projects aimed at

ending homelessness.

(Per telephone conversation with Benjamin Coney, Assistant

Director at St. Johns County Housing & Community Services,

St. Augustine, FL August 30, 2017.)

SURPLUS LAND GUIDE

2018 25

APPENDIX

Appendix A: How Local Governments Obtain Surplus Properties

Florida counties and municipalities acquire real property in several ways, including by direct purchase for public use, tax

lien escheatment, municipal tax lien foreclosure, and code enforcement lien foreclosure. This section will discuss tax lien

escheatment, municipal tax lien foreclosure, and code enforcement lien foreclosure. This section is included in this guidebook

to provide nonproﬁt aﬀordable housing organizations an overview of the processes involved, and to be instructive about

potential opportunities to obtain properties subject to these processes.

Tax Lien Escheatment

Counties come into title of real property through tax lien

escheatment aer an owner fails to pay property taxes, and

the tax lien certiﬁcate and tax deed sale processes fail to

procure a third-party purchaser (§197.502(8), Fla. Stat.). Tax

lien escheatment is a lengthy process that begins when taxes

on a real property become delinquent on April 1 of the year

following the year in which the taxes were levied. Real estate

taxes imposed under the Florida constitution or state law are a

ﬁrst lien, superior to all other liens, on the property against which

the taxes were assessed (§197.122(1), Fla. Stat.). Taxes become

a lien on January 1 of the year in which the taxes were levied,

and continue as a lien until they are either paid or barred by a

limitations statute (§197.122(1), Fla. Stat.). Although taxes become

a lien on January 1 of the year in which they were levied, they are

not due and payable until November 1 of the same year, and they

become delinquent on April 1 of following year. Thus, property

taxes are due and payable in arrears. All property owners are

held to know that taxes are due and payable annually, and are

responsible for determining the amount due and for paying that

amount before April 1 of the year following the year in which the

taxes were levied (§197.122(1), Fla. Stat.).

Prior to November 1, each county property appraiser must

deliver to the county tax collector a certiﬁed assessment roll,

and the tax collector must publish in a local newspaper a notice

that the assessment roll is open for collection (§197.322(1),

(2), Fla. Stat.). The tax collector has the duty to send notice of

real property tax assessments to each property owner within

20 working days aer receiving the certiﬁed assessment roll,

and to send notice of delinquent taxes on or before April 30

(§197.322(2), §197.343(1), Fla. Stat.). By the later of June 1 or

the 60th day aer taxes become delinquent, the tax collector

must publish once each week for 3 weeks a notice that tax lien

certiﬁcates will be sold on all real property with delinquent taxes

(§197.402(3), Fla. Stat.). The tax collector conducts the sale, and

awards each tax lien certiﬁcate to the bidder who agrees to pay

the taxes, interest, costs, and charges due, and demands the

lowest rate of interest in return (§197.432(1), (6), Fla. Stat.). If there

are no bidders to purchase a tax lien certiﬁcate, that certiﬁcate

is struck to the county (§197.432(6), Fla. Stat.).

Two years aer a tax lien certiﬁcate is issued, the certiﬁcate holder

may ﬁle with the tax collector the certiﬁcate and an application for

a tax deed (§197.502(1), Fla. Stat.). The certiﬁcate holder applying

for a tax deed must pay the amounts represented by all other tax

certiﬁcates issued on the property, and all outstanding taxes due

together with interest (§197.502(2), Fla. Stat.). Two years aer April

1 of the year in which tax certiﬁcates were issued to a county, the

county must apply for tax deeds on certiﬁcates held in which the

property is valued at $5,000 or more, and may apply for tax deeds

on certiﬁcates held in which the property is valued at less than

$5,000, and pay applicable costs and fees (§197.502(3), Fla. Stat.).

The tax collector then notiﬁes the clerk of court that payments have

been made for outstanding certiﬁcates, and that certain enumerated

parties are entitled to receive notice of tax deed sale (§197.502(4),

Fla. Stat.). The clerk of court then advertises and administers a public

tax deed sale (§197.502(5)(c), Fla. Stat.). The opening bid on county-

held certiﬁcates on non-homestead properties is the sum of all

outstanding certiﬁcates on the property, plus all taxes due, interest,

costs, and fees (§197.502(6)(a), Fla. Stat.). The opening bid on

individually-held certiﬁcates is the amount required to redeem the

applicant’s tax certiﬁcates, plus all subsequently sold tax certiﬁcates,

plus all costs and fees paid by the applicant (§197.502(6)(b), Fla.

Stat.). The opening bid on certiﬁcates on homestead properties is

an amount equal to half the latest assessed value of the property plus

the amount required for opening bid on non-homestead property

(§197.502(6)(c), Fla. Stat.). Florida courts have held that a tax deed

does not represent a transfer of title from the former owner, but

rather constitutes the “commencement of a ‘new, original, and

paramount’ title” (Cricket Props. LLC v. Nassau Pt., 124 So. 3d 302,

306 (Fla. 2d DCA 2013)). Therefore, liens such as homeowners’

association and condominium association liens do not survive

issuance of a tax deed.

For certiﬁcates on which there are no bidders for a tax deed,

or on which the certiﬁcate holder fails to timely pay amounts

due for resale or issuance of a tax deed, the clerk of court

enters the properties on a list of “lands available for taxes,” and

notiﬁes the county commission that the properties are available

(§197.502(7), Fla. Stat.). During the ﬁrst 90 days aer the list is

made, the county alone may purchase the listed properties for

the opening bid amount. Beyond 90 days aer the list is made

for “lands available for taxes,” any person may purchase the

property for the opening bid amount (§197.502(7), Fla. Stat.).

Three years after the public tax deed sale date, properties

that remain on the list of “lands available for taxes” escheat to

26 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

APPENDIX

the county, and the clerk of court issues an escheatment tax

deed vesting title in the board of county commissioners free

and clear of all tax certiﬁcates, accrued taxes, and liens of any

nature (§197.502(8), Fla. Stat.). Therefore, ﬁve years aer a tax

lien certiﬁcate is struck to the county, the county acquires title to

property by escheatment tax deed. If the property acquired by

the county for delinquent taxes is located within the boundaries of

a municipality, the county must either use the property for certain

purposes prescribed by law, or convey it to the municipality

(§197.592(3), Fla. Stat.). Hence, municipalities may also come

into title of real property indirectly through the escheatment tax

deed process. Counties and municipalities may also acquire real

property through the code enforcement lien foreclosure process,

which will be discussed in the next section.

Municipal Tax Lien Foreclosure

Chapter 173, Florida Statutes, authorizes Florida municipalities

to foreclose on the lien of any tax, tax certiﬁcate, or special

assessment imposed by the municipality, other than ad valorem

taxes collectible by the county tax collector (§173.01, Fla. Stat.).

The method is optional, and provides an alternative in rem

procedure for municipalities to enforce tax liens and special

assessments (§173.13, 173.14, Fla. Stat.). A municipality may

foreclose its lien aer two years from the date the tax became

delinquent or the city issued a tax certiﬁcate, or aer one year

from the date any special assessment became due and payable

(§173.03(1), Fla. Stat.). The municipality must ﬁle suit to foreclose

its lien in circuit court in the county where the municipality is

located. Prior to ﬁling suit, the municipality must serve notice

by registered mail on the owner and any mortgagees with

an interest in the land, but does not have to name the owner,

mortgagees, or other persons with an interest in the land as

defendants in the foreclosure suit (173.04(1), Fla. Stat.).

The clerk of court must publish a notice once each week for two

consecutive weeks, describing the lands and the amounts the

municipality is seeking to recover in the foreclosure suit, and

requiring persons with an interest in the land to appear in the

case and defend their interests (§173.04(3), Fla. Stat.). Every

person who holds an interest in or lien on the land subject to

the tax foreclosure is deemed a party and may appear in the

process (§173.05, Fla. Stat.). If judgment is entered for the

municipality, the court appoints a special magistrate to sell the

lands to the “highest and best bidder for cash…at public outcry”

aer advertising the sale once each week for two consecutive

weeks in a local newspaper (§173.09(1), Fla. Stat.). If the sale fails

to procure a suﬃcient bid, the municipality is entitled to bid the

whole amount due and the special magistrate will convey the

land accordingly (§173.09(2), Fla. Stat.). The municipality then

takes title to the lands in fee simple and may dispose of them in

any manner provided by law (§173.09(3), Fla. Stat.).

Code Enforcement Lien Foreclosure

The Florida constitution provides that counties and municipalities

have powers of self-government, and may enact local ordinances

(Fla. Const. art. VIII, § 1(f), (g), §2(b)). The Local Government Code

Enforcement Boards Act provides an optional process for counties

and municipalities to impose administrative ﬁnes and other

noncriminal penalties for local ordinance violations (§§162.01-

162.13, Fla. Stat.). Under this process, local governments may

appoint code enforcement boards or magistrates, and employ

inspectors who are empowered to issue notices of local ordinance

violations. If a violation continues aer notice, the code inspector

refers the matter to the code enforcement board or magistrate

for hearing (§§162.03-162.06, Fla. Stat.). Administrative ﬁnes

may be imposed only aer notice with opportunity to cure, and

subsequent notice and opportunity to present evidence and

be heard before the code enforcement board or magistrate

(§§162.06-162.09, Fla. Stat.).

The local government may record a certiﬁed copy of an order

imposing a ﬁne in the county oﬃcial records. The order constitutes

a lien against the land on which the violation exists, and any other

real or personal property the violator owns within the county

(§162.09(3), Fla. Stat.). A party to a code enforcement hearing

process is entitled to judicial review of the ﬁnal administrative

order by ﬁling an appeal in circuit court within thirty days of the

date the order was rendered (§162.11, Fla. Stat.). Three months

aer the date of ﬁling its lien, the local government may initiate

a court proceeding to foreclose against the violator’s property

(§162.09(3), Fla. Stat.). If judgment is entered in favor of the local

government, the property will be subject to foreclosure sale.

However, no lien may be foreclosed on real property that is

protected by the homestead provision of section 4, Article X of

the Florida Constitution (§162.09(3), Fla. Stat.).

Direct Purchase of Land for Public Use

Local governments purchase land for public uses including

road right of way, infrastructure improvements, parks and

conservation. Land is also purchased for redevelopment. Land

obtained by local governments for public purposes may become

surplus if it is not used for the intended purpose or if there is a

portion of land that was not used.

SURPLUS LAND GUIDE

2018 27

APPENDIX

Appendix B: Glossary of Terms

Aﬀordable Housing: The rule of thumb used by the federal

government is that housing should cost no more than 30 percent

of a household’s gross income. Housing costs include rent or

mortgage payments, property taxes (for homeowners), renter’s

or homeowner’s insurance, and utility costs. Many, though not

all, federal, state, and local funding programs require aﬀordable

housing providers to use this standard when setting rents or

purchase prices for their units. Depending on the program, the

rent or purchase price of a unit may be set at 30 percent of a

speciﬁc income level (e.g. 50 percent of area median income),

or at 30 percent of the applicant household’s income.

Aﬀordability Period: The time period that the dwelling

must be maintained as aﬀordable for households that fall

below an income-eligibility threshold. The aﬀordability period

is set by federal, state or local requirements depending on

the funding source.

Area Median Income: The Area Median Income (AMI)

divides the income distribution in a deﬁned geographic area

into two equal parts: one-half of the cases falling below the

median and one-half above the median. HUD uses the median

income for families in metropolitan and non-metropolitan

areas to calculate income limits for eligibility in a variety of

housing programs. HUD estimates the median family income

for an area in the current year and adjusts that amount for

diﬀerent family sizes so that family incomes may be expressed

as a percentage of the area median income.

Assemblage: The process of forming a single site from

several parcels, usually for eventual development or

redevelopment.

Brownﬁeld: As used in this guidebook, the term “brownﬁeld”

has the same meaning as “brownﬁeld site,” deﬁned in section

376.79(4), Florida Statutes, as “real property, the expansion,

redevelopment, or reuse of which may be complicated by

actual or perceived environmental contamination.”

Community Land Trust: The term “community land trust”

refers to the vehicle of separating land from building (house)

for the purpose of transferring title to the house without

selling the land. The term also denotes the private nonproﬁt

corporation that acquires and holds title to the land and

manages the ground leases on that property for the beneﬁt

of the community.

Conveyance: Conveyance is the act of transferring an

ownership interest in real property from one party to another.

Conveyance also refers to the written instrument, such as a

deed or lease that transfers legal title of a property from the

seller to the buyer.

Deed: Property deeds are used to convey real property

from a grantor (seller) to a grantee (buyer). For a deed to be

legally operative, several essentials must exist including the

identiﬁcation of the grantor and grantee, and the adequate

description of the property. In addition, deeds may be

categorized in a number of ways including warranty, quitclaim

and special purpose deeds.

Delinquent Tax Value: Delinquent tax refers to a tax that

is unpaid aer the payment due date. Usually a penalty is

attached to a delinquent tax. The power, jurisdiction and

authority to collect all delinquent taxes are vested in the state

tax commission.

Escheat: As used in this guidebook, the term “escheat” refers

to the legal process through which a county acquires title to real

property on which the former owner failed to pay real estate

taxes. More generally, the term “escheat” refers to the power

of a government to acquire title to property when the private

owner is unknown or cannot be found.

Escrow: A grantor may eﬀectively deliver a deed in the future

by an escrow. An escrow is a deed (or other thing) given to a

third party, called an escrow agent, to hold and then deliver to

the grantee when speciﬁed conditions are met. The parties may

close a real estate sale by using an escrow agent.

Fair Market Value: Fair market value (FMV) is the price

that a person reasonably interested in buying a given asset

would pay to a person reasonably interested in selling it for

the purchase of the asset or what the asset would fetch in the

marketplace.

Foreclosure: The action of taking possession of a mortgaged

property when the mortgagor fails to keep up their mortgage

payments.

GIS: A geographic information system (GIS) is a system

designed to capture, store, manipulate, analyze, manage,

and present spatial or geographic data.

28 THE FLORIDA HOUSING COALITION | FLHOUSING.ORG

APPENDIX

Green Space: An area of grass, trees, or other vegetation set

apart for recreational or aesthetic purposes in an otherwise

urban environment.

Land Bank: The term “land bank” refers to a program

or policy established to assemble, temporarily manage,

and dispose of real property for the purpose of stabilizing

neighborhoods, encouraging reuse or redevelopment, and

creating aﬀordable housing. The term “land bank” also refers

to the governmental or nongovernmental nonproﬁt entity

established to operate a land bank program.

Local Housing Assistance Plan (LHAP): The LHAP for each

local government describes the methods (housing strategies)

by which they will expend the SHIP funds allocated to the

jurisdiction. Generally, the LHAP is submitted once every

three years and covers three ﬁscal years funding. The LHAP

can be amended at any time.

Permanently Aﬀordable Housing: Refers to all types of

housing with lasting aﬀordability. These types include rental or

homeownership units created by nonproﬁts (e.g. community

land trusts) or public entities (e.g. inclusionary housing

programs) that utilize various legal mechanisms to ensure the

unit remains permanently aﬀordable. Diﬀering from the shorter

aﬀordability periods required by federal programs to support

the production of aﬀordable housing, these organizations opt

to maintain the aﬀordability of housing over the long-term in

order to preserve the aﬀordable housing stock and the public’s

investment in aﬀordable housing production.

Real Property: All land, structures, ﬁrmly attached and integrated

equipment (such as light ﬁxtures or a well pump), anything growing

on the land, and all "interests" in the property which may be the

right to future ownership (remainder), right to occupy for a period

of time (tenancy or life estate) the right to drill for oil, the right to get

the property back (a reversion) if it is no longer used for its current

purpose (such as use for a hospital, school or city hall), use of

airspace (condominium) or an easement across another's property.

Redevelopment: Construction of new buildings in an urban

area, typically aer demolishing the existing buildings.

Resale Requirement: If an aﬀordable home sold to an income-

qualiﬁed homebuyer has a resale requirement, the homeowner is

legally required by a deed restriction or land covenant to sell the

home to another income-qualiﬁed household at an aﬀordable

price (when/if the ﬁrst homeowner chooses to sell.)

Restrictive Covenant: A covenant imposing a restriction on

the use of land so that the value and enjoyment of adjoining

land will be preserved.

SHIP (State Housing Initiatives Partnership Program):

The State Housing Initiatives Partnership Program (SHIP) provides

funds to local governments as an incentive to create partnerships

that produce and preserve aﬀordable homeownership and

multifamily housing. The program was designed to provide

very low-, low- and moderate-income families with assistance

to purchase a home, money to repair or replace a home, and

many other types of housing assistance.

Surplus Land or Property: Real property owned by the

County or a municipality that has been determined to be

no longer necessary to serve a public purpose. Property

speciﬁcally acquired as road right-of-way may not be deemed

surplus property and sold under this ordinance.

Surplus Land Statutes: Existing law prescribes requirements

for the disposal of surplus land by a local agency, as deﬁned.

Existing law speciﬁes that these and other related provisions

are not to be interpreted to empower a local agency to

sell or lease surplus land at less than fair market value. The

requirements are found in two statutes: 125.379 for counties,

and 166.0451 for municipalities. Surplus Lands are deﬁned

in Statute 274.05, and the sale of such is deﬁned in 273.01.

Tax Collector: According to Chapter 192 of the Florida

Statutes; TAXATION: GENERAL PROVISIONS “County

tax collector” means the county oﬃcer charged with the

collection of ad valorem taxes levied by the county, the

school board, any special taxing districts within the county,

and all municipalities within the county.

Tax Roll: A breakdown of all property within a given

jurisdiction, such as a city or county, that can be taxed. The tax

roll will list each property separately in addition to its assessed

value. This roll is usually created by the taxing assessor or

other authority within the jurisdiction.

Title: In property law, a title is a bundle of rights in a piece

of property in which a party may own either a legal interest

or equitable interest. The rights in the bundle may be

separated and held by diﬀerent parties. It may also refer to

a formal document, such as a deed, that serves as evidence

of ownership.

AND OTHER VALUABLE RESOURCES UNDER THE PUBLICATIONS TAB

ON THE FLORIDA HOUSING COALITION’S WEBSITE AT:

WWW.FLHOUSING.ORG

The Florida Housing Coalition

1367 E. Lafayette Street, Suite C, Tallahassee, FL, 32301

Phone: (850) 878-4219 I Fax: (850) 942-6312 I Email: info@ﬂhousing.org

FLhousing.org

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