Residential Leasing and Mortgaging on Indian Lands

New Mexico Housing SummitAugust 21, 2014

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Regulations

25 CFR § 162Updated December 5, 2012

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Subpart C – Residential Leasing

General Provisions • §§162.301 – 162.303

Lease Requirements • §§162.311 – 162.317

Rental Requirements • §§162.320 – 162.329

Bonding and Insurance• §§162.334 – 162.337

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Approval• §§162.338 – 162.344

Amendments • §§162.345 – 162.348

Assignments • §§162.349 – 162.352

Subleases• §§162.353 – 162.356

Subpart C – Residential Leasing

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Leasehold Mortgages• §§162.357 – 162.360

Effectiveness, Compliance, and Enforcement • §§162.361 – 162.374

Subpart C – Residential Leasing

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Requirements

Legal Description – §162.317 • Reference public or private survey, or• Legal description• Survey-grade GPS• Registered land surveyor

Rent – §162.320 • Amount determined by the tribe to be in its

best interest• Appraisal at the request of the tribe• Tribe not bound by the appraised FMV

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Approval

Required documents – §162.338 • Lease• Tribal authorization• Valuation (if required)• Environmental clearance• Legal description

Lease Review – §162.339• May be requested prior to submittal for

approval• 10 days to review

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Approval

Approval Process – §162.340 • Best interest of the Indian landowners• Review lease & supporting documents• Ensure compliance with applicable laws

• “Promptly” notify if package is complete• If incomplete, letter to tribe identifying

missing documents• If complete, BIA notifies tribe of date of

receipt• 30 days to approve or disapprove

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Approval

BIA Decision-making Process – §162.341 • Approval unless:• Required consents not obtained• Subpart requirements not met• Protect best interest of landowner

Recording of Lease – §162.343 • Any residential lease, amendment,

assignment, or leasehold mortgage must be recorded in the DLTR

• Residential subleases need not be recorded

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Leasehold Mortgage

Consent Requirement – §162.358 • Unless stated in lease, consent is required

Approval Process – §162.359 • BIA notifies tribe when package received• 20 days to approve or disapprove

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Leasehold Mortgage

BIA Decision-making Process – §162.360 • Approval unless:• Required consents not obtained• Subpart requirements not met• Protect best interest of landowner

NOTE: Contact your local BIA agency early in the process because Environmental review, Section 106 concurrence, and TSR all take time.

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Realty’s Steps

What happens when BIA receives a lease?• Review per 25 CFR 162• Request approval from Regional Director• Encode into electronic system of record• Image into electronic system of record• TIR log updated• DLTR takes over

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Contacts

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The End