As the United States continues to become increasingly diverse with residents from different cultural backgrounds and religious faiths, financial institutions are working to find ways to provide both consumer and commercial loan financing arrangements that meet the specific needs of their customer base. This includes the development of financing programs that comply with the Islamic faith.
Such financing arrangements can take many forms, but an essential component is that they cannot require the borrower to pay or permit the lender to charge interest. Such programs also cannot invest in things forbidden by the Islamic faith, such as alcohol, pork, or gambling. For example, in an Islamic mortgage, a bank does not lend money to an individual to buy a residential property. Instead, the bank buys the property and the customer can then either buy the property back from the bank at a higher price paid in installments (murabahah) or make monthly payments to the bank that include both an amount to repay the purchase price and amount for rent until the customer owns the property outright (ijara).
Recently, this issue received a significant amount of attention when the Seattle Housing Affordability and Livability (HALA) task force issued its comprehensive report to the Mayor of Seattle, in which it addressed the need for an “adequate, affordable supply of housing,” while balancing “the needs of a fast-growing city with almost unimaginable new wealth and the acute needs of people who experience systemic inequities driven by issues of income, ethnicity, and race on a daily basis. “One of the HALA task force’s recommendations for promoting sustainable housing was to explore the development of a “Sharia-compliant Financing Product.” More specifically, the task force noted that “[l]imited options for financing a home purchase are available for Muslim households who abide by Sharia law, which prohibits the payment of interest or fees for loans of money. The City can help fill this gap by convening lenders, housing nonprofits, and community leaders to explore how the market might develop Sharia-compliant loan products. The City should evaluate current available loan products to determine barriers to their use due to religious or other restrictions.”
A number of publications have covered the international scope of Sharia-compliant financing arrangements designed to accommodate an increasing population of borrowers committed to following their faith in financial matters. According to a USA Today article from 2014, the world of Sharia-compliant financing “has grown to more than $1.6 trillion in assets worldwide over the past three decades.”
Indeed, one author has estimated the market as being even larger: “Based on $1.66 Trillion, Islamic Finance assets represented 1% of the global financial market of $127 Trillion in assets.” The Islamic Financial Services Board (IFSB) is an international standard-setting organization that promotes and enhances the soundness and stability of the Islamic financial services industry by issuing global prudential standards and guiding principles for the industry. The IFSB also conducts research and coordinates initiatives on industry related issues and organizes roundtables, seminars, and conferences for regulators and industry stakeholders.
With numbers as large as noted above, and a growing Muslim population both domestically and abroad, lenders based in the United States are increasingly focused on developing a range of financial products that meet the needs of this significant customer base.
In developing these products, however, lenders will need to work closely with lawyers to ensure that the proposed financing arrangements meet the needs of the borrowing community while, at the same time, comply with all applicable federal and state legal requirements.
For example, regardless of whether the term “interest” is used in any financing arrangements, the federal and state regulators will look at the substance of the terms of the arrangements to determine issues such as: if interest (or a “finance charge”) is being charged; if the provider is a “lender” that must be licensed; if fees or other charges are within permissible limits; whether federal laws such as ECOA, RESPA or TILA are applicable, and many more.
Care must also be used in evaluating “back-end” issues, such as whether the financial institution’s servicing and collection remedies need to be modified to ensure they are effective from the lender’s perspective and compliant with these unique programs.
Although it may be easy to view the developments in Seattle as an aberration, the international financing community and your customer base demands and will continue to demand the development of flexible and sophisticated products that meet all of their needs—not just financial, but increasingly needs which are also cultural and even religious.