On April 22, 2024, several trade associations representing Denver landlords (the “Plaintiffs”) sued the State of Colorado, the City and County of Denver, and other related entities (collectively, the “Defendants”) in federal court, challenging a state statute and the Energize Denver Ordinance, which together impose a collection of energy efficiency requirements for commercial buildings (the “Efficiency Regulations”). The amended complaint can be found here. The Plaintiffs claim the Efficiency Regulations are preempted by the federal Energy Policy and Conservation Act (the “EPCA”), which grants the Department of Energy authority to regulate the energy efficiency of certain consumer and industrial appliances – formally known as “covered products” and “covered equipment”. Plaintiffs argue the Efficiency Regulations effectively force them to replace gas-powered equipment, covered in the EPCA, with more efficient electric-powered equipment to meet a building’s required efficiency target. For more information on efficiency targets, see Otten Johnson’s July 2023 Alert. Another complaint alleging similar issues was filed on July 3, 2024, by national trade associations and can be found here.

Initially, the United States District Court dismissed the case for failing to allege a non-speculative injury, but allowed the Plaintiffs to amend the complaint. On June 10, 2025, the Plaintiffs filed their amended complaint, and, again, the Defendants moved to dismiss. Briefing on this Motion to Dismiss concluded on November 25, 2025, and the Court has yet to rule on the motion. The Public Health Law Center at Mitchell Hamline School of Law is tracking the status of this case and providing updates on its Litigation Tracker Page.

Notably, on June 18, 2026, the Department of Justice (the “DOJ”) filed a Notice of Potential Participation stating that the case presents questions of interest related to the preemptive scope of the EPCA. However, the DOJ indicated it would only intervene if the proceedings continued past the pending motion to dismiss.

The DOJ’s involvement may bolster the Plaintiffs’ preemption claim, which relies on the Ninth Circuit Court’s decision in California Restaurant Association v. City of Berkeley in which the Court determined that the City of Berkeley’s regulation was preempted by the EPCA. 65 F.4th 1045 (9th Cir. 2023). However, the Ninth Circuit’s decision is not binding on the Tenth Circuit, and the Defendants distinguish this case because Berkeley’s regulation directly prohibited the installation of natural gas connections, as opposed to the Efficiency Regulations, which regulate a building’s efficiency in totality. The Defendants also note that federal courts in two separate districts in New York declined to follow the Ninth Circuit’s holding. In each case the court considered whether a ban on the use of fossil fuels in newly constructed buildings was preempted by the EPCA. The courts found, in both cases, that the ban was not preempted because it regulated the type of energy used, not the amount of energy output by a particular appliance covered by the EPCA.

The Defendants continue to assert that (1) the Plaintiffs never utilized any of the timeline or target adjustment tools available, which would have allowed the Plaintiffs greater flexibility in hitting the energy efficiency target, and (2) there is no current injury to the Plaintiffs and any future injury to the Plaintiffs would be caused by a refusal to utilize adjustments. However, the Plaintiffs counter that the adjustments only prolong the inevitable expenses caused by the Efficiency Regulations. Lastly, there is an ongoing dispute with respect to commencement of the two-year statute of limitations to file a complaint regarding new building requirements.

This issue is ongoing and Otten Johnson will continue to monitor developments in this case.

In an effort to curb money laundering in residential real estate transactions, the Financial Crimes Enforcement Network (“FinCEN”) enacted the Anti-Money Laundering Regulations for Residential Real Estate Transfers rule (the “Rule”), which imposes extensive reporting requirements for certain non-financed residential real estate transactions.  This post provides a high-level overview of the Rule and discusses a recent federal case that struck down the Rule as exceeding the authority granted to FinCEN by the Bank Secrecy Act (the “BSA”).

The Rule’s Enactment and History

FinCEN is a bureau of the U.S. Treasury tasked with enforcement of the BSA, which requires financial institutions to maintain records that are useful for the detection and prevention of money laundering.  Stating that illicit use of residential real estate threatens economic and national security, FinCEN promulgated the Rule in 2024, imposing extensive reporting requirements for non-financed residential real estate transactions where ownership is transferred to an entity or trust (with limited exceptions). 

Legal Challenge of the Rule in Flowers Title Companies v. Bessent

Flowers Title Companies (“Flowers”) filed suit challenging the Rule as unlawful under the Administrative Procedure Act.  On March 19, 2026, the U.S. District Court for the Eastern District of Texas (the “Court”) ruled in Flowers Title Companies, LLC v. Bessent that the Rule exceeded FinCEN’s statutory authority under the BSA.

In response to Flowers’ challenge, FinCEN argued that two provisions of the BSA authorized its promulgation of the Rule: (1) 31 U.S.C. § 5319(g)(1), which authorizes FinCEN to require reporting of “any suspicious transaction”; and (2) 31 U.S.C. § 5319(g)(2), which permits FinCEN to require financial institutions to “maintain appropriate procedures, including the collection and reporting of certain information.”  The Court rejected both of these arguments.  First, it held that FinCEN is authorized to regulate “only those transactions that tend to arouse the belief that something is wrong” and FinCEN provided no persuasive explanation for its determination that the entire category of non-financed residential real estate transactions meets this definition.  The Court agreed with Flowers that there are “myriad legitimate reasons” an individual would purchase property without financing and “there is nothing unusual about an investor creating [an incorporated entity] to acquire and hold real estate.” 

Second, the Court held that 31 U.S.C. § 5319(g)(2) does not authorize FinCEN to impose substantive obligations on financial institutions to report information.  Explaining that “reporting” is ordinarily not a “procedure” but rather “the substantive act of giving an account or making a record,” the Court ruled that this section of the BSA authorizes FinCEN to “require institutions to maintain procedures including maintaining collection and reporting procedures.”  However, the Rule vastly expands this requirement, and FinCEN’s proposed interpretation of this statute “smuggles expansive reporting authority into a provision that is focused on procedures.”  Therefore, the Court entered judgment in Flowers’ favor and issued an order that the Rule be vacated under 5 U.S.C. § 706(2).

Impact of the Order on Enforcement of the Rule FinCEN has announced that it will appeal the Flowers decision to the 5th Circuit Court of Appeals.  Even though another federal court in Florida reached the opposite conclusion, the order vacating the rule applies throughout the country pending the appeal.  FinCEN has issued an alert stating that reporting entities who do not file reports required under the Rule while the Court’s order remains in effect will not be subject to liability.

Congress has passed 21st Century ROAD to Housing Act, HR 6644.  The bill contains dozens of provisions to address America’s ongoing housing affordability crisis.  Chief among the provisions is Title X, Home-Ownership for Main Street America, which institutes a 15-year ban on Large Institutional Investors from purchasing “or enter[ing] into a contract to directly or indirectly purchase” single-family homes.

Because a “Large Institutional Investor” is, by definition, an entity that owns or controls 350 or more single‑family homes, this prohibition functions as a cap on the number of homes such entities can own or control and imposes financial penalties on investors who exceed that limit. However, several types of purchases are excepted, as described below.

Violations of this prohibition can trigger civil penalties of up to $1,000,000 per violation or three times the purchase price of the subject property, whichever is greater.

Key Definitions

  • Large Institutional Investor

The bill defines a “Large Institutional Investor” as a for‑profit legal entity that is “in the business of investing in, owning, renting, managing, or holding single-family homes” (in whole or in part) and controls 350 or more single-family homes in the aggregate. This definition applies whether the entity works alone or in concert with other entities to control such homes.  To control a single-family home means that the entity either owns or generally controls the property, and the bill describes a broad array of qualifying activity. For example, such control can be established by owning or controlling (directly or indirectly) the general partner or managing member of the entity that owns the home, owning more than 25 percent of equity interests in the entity that owns the home (with an exception for passive investors), controlling the manager, management company, or investment advisory of the owner entity, or being the owner, or having primary authority or fiduciary responsibility to make material investment or management decisions relating to, the single‑family home, among others.

  • Single-Family Homes

The bill defines a single‑family home as “a structure that contains 2 or fewer dwelling units that are each intended for residential occupancy by a single household” but does not include manufactured homes.

  • Purchase

Note that the prohibition on purchases of single‑family homes by Large Institutional Investors is also broad and includes “any purchase, transfer, or other acquisition of single family homes, including through mergers, acquisitions, construction, foreclosures, or bulk purchases, whether or not for cash consideration.”

Exceptions

The bill includes several purchases that do not count towards the 350‑home cap, such as certain build-to-rent programs, certain renovate-to-rent programs, homes operated as part of a 55+ community, and homes acquired from other Large Institutional Investors that owned the property at enactment or who acquired it compliantly.  The bill also allows for “purchases” in connection with a foreclosure, a deed-in-lieu of foreclosure, enforcement of mortgages and other security interests, and similar circumstances so long as the action is “not as a long-term investment strategy.”  Additional exceptions apply, and we recommend any entity that may fall into the category of Large Institutional Investor carefully review the exceptions in connection with an assessment of their portfolio.

What Happens Next?

Following Congress’s passage of the bill, the President has initially refused to sign the bill until the SAVE Act is enacted—⁠thrusting the bill’s fate back into flux.  However, after the President receives the bill, the bill will automatically become law 10 days later unless the President formally vetoes the measure.

If enacted, the Large Institutional Investors provision becomes effective 180 days later.  Additionally, by December 31st, (and every year thereafter) all Large Institutional Investors must comply with certain reporting requirements regarding the number and location of the single-family homes it controls.

The Colorado General Assembly has recently passed (and the Governor signed into law) Senate Bill 26-001, “Workforce Housing & Housing Tax Credit”, with the intent of increasing financial flexibility and county authority to promote workforce housing, low-income housing, and general housing needs.

SB 26-001 grants a board of county commissioners the power to sell any public building or real property, with the exclusion of public parks, for the purposes of developing housing.  This is intended to provide greater flexibility for counties when selling their property and to provide counties additional funds for housing developments.  In particular, under SB 26-001, counties now have the power to appropriate property tax revenue, county general funds, and other specified funds, towards housing programs.  This removes the prohibition under prior law on using property taxes for housing, opening up previously inaccessible funds to necessary housing projects.

The bill also authorizes governmental or quasi-governmental entities to transfer what is known as the middle-income housing tax credit to any income taxpayer that has acquired credits for the development of affordable housing.  The middle-income housing tax credit provides an income credit for housing developments that serve households whose income is between 80% and 120% of the area’s median income.  Under current law, the Colorado Housing and Finance Authority may allocate the tax credit to any governmental or quasi-governmental entity, who may in turn transfer the credit only to taxpayers with an ownership interest in a qualified development.  This new bill removes the ownership interest requirement, increasing taxpayer eligibility for the credit.

Under the new law, a county may also enter into long-term rentals or leasehold agreements. This expands governmental authority and opportunities for developing affordable housing or housing identified in a needs assessment developed by the county.

The law also provides that construction and building materials are exempt from taxation for projects involving highways, roads, streets, workforce housing, and other public works owned and used by governmental entities.

SB 26-001 was signed into law on March 26, 2026, and will take effect 90 days after the adjournment of the Colorado General Assembly on May 16, 2026 (August 14, 2026), unless a referendum petition is filed.  The changes to the middle-income tax credit will take effect January 1, 2027.

This bill is one in a series of efforts by the Colorado General Assembly this session to encourage housing development.  The “Housing Opportunities Made Easier ‘HOME’ Act” (HB 26-1001) also signed in March of this year allows nonprofits, schools, universities, housing authorities, or regional transit authority to bypass local planning processes to build affordable residential housing on their land. In addition, HB 26-1065, signed in May, allows local governments to create transit and housing authority investment zones.  These zones can utilize state sales tax increment financing and tax credits to support relevant projects.

Colorado lawmakers continue to pursue aggressive housing policy reforms aimed at increasing housing supply and expanding affordable housing financing tools. One significant measure introduced during the 2026 legislative session is House Bill 26-1206, titled “Improved Funding to Support Development” (“HB26-1206”). HB26-1206 would substantially expand the financing capabilities of city and county housing authorities and could have meaningful implications for commercial real estate developers, lenders, and public-private development partnerships throughout Colorado.

Purpose of HB26-1206

HB26-1206 was introduced amid continued concerns regarding housing affordability, rising construction costs, and elevated interest rates, with supporters arguing that zoning reform alone is insufficient to address Colorado’s housing shortage. As introduced, HB26-1206 would authorize city and county housing authorities to seek voter approval for certain sales taxes or sales and use taxes dedicated to affordable housing and development initiatives. Earlier versions of the bill also contemplated broader property tax authority, although portions of that language were narrowed during committee consideration.

In addition to expanding taxing authority, HB26-1206 would authorize county housing authorities to issue revenue bonds and general obligation bonds backed by approved revenue streams. As a result, HB26-1206 could significantly increase the ability of housing authorities to participate in large-scale redevelopment, public-private partnerships, and affordable housing financing initiatives throughout Colorado.

Legislative History and Current Status

HB26-1206 was introduced by Representatives Junie Joseph and William Lindstedt during the 2026 Colorado legislative session. HB26-1206 advanced through multiple House committees, including House Finance and House Appropriations, where several amendments were adopted refining the scope of the proposed taxing authority and financing mechanisms. HB26-1206 subsequently passed the Colorado House on third reading in late April 2026 and was introduced in the Senate, where it was assigned to the Senate Finance Committee for further consideration.

Remaining Legislative Steps and Timeline

If approved by the Senate Finance Committee, HB26-1206 would proceed through additional Senate review and full Senate floor votes before being presented to Governor Jared Polis for signature or veto. If the Senate adopts amendments, the House would need to concur with those amendments or the bill could proceed to a conference committee prior to final enrollment. Assuming enactment during the 2026 legislative session, HB26-1206 would likely become effective either upon the Governor’s signature or following the standard 90-day post-adjournment period applicable to most Colorado legislation, although certain provisions, particularly those involving voter-approved taxes or bond issuances, would require additional local governmental approvals before implementation.

Potential Impact on Commercial Real Estate Developers

For commercial real estate developers, HB26-1206 could materially expand the availability of public financing support for mixed-income and affordable housing projects. Housing authorities with independent revenue sources and bonding authority would likely become more active participants in public-private partnerships, transit-oriented development, land assemblage, infrastructure financing, and mixed-use redevelopment projects.

HB26-1206 could also improve the feasibility of projects that currently struggle to close financing gaps due to construction costs, insurance expenses, and capital market constraints. Developers pursuing adaptive reuse or higher-density urban redevelopment projects may particularly benefit from expanded access to public financing participation and long-term infrastructure support.

Potential Impact on Commercial Real Estate Lenders

Lenders are likewise monitoring HB26-1206 closely. Expanded governmental participation in development projects may create additional complexity in financing structures, including intercreditor arrangements, bond financing coordination, collateral priority issues, public financing covenants, and governmental consent requirements. At the same time, additional public financing sources contemplated by HB26-1206 could improve project viability, reduce equity gaps, and support developments that otherwise may not proceed under current market conditions. As public financing becomes increasingly intertwined with private development, lenders will likely need to evaluate more sophisticated capital stacks involving housing authorities, tax-exempt financing, and municipal participation.