| 1 | A bill to be entitled | 
| 2 | An act relating to transfer fee covenants; creating s. | 
| 3 | 689.28, F.S.; providing legislative intent regarding | 
| 4 | transfer fee covenants; providing definitions; providing | 
| 5 | that certain transfer fee covenants are unenforceable | 
| 6 | against subsequent owners, purchasers, and mortgagees; | 
| 7 | providing that a presumption is not created in favor of | 
| 8 | transfer fee covenants recorded before the effective date | 
| 9 | of the act; providing an effective date. | 
| 10 | 
 | 
| 11 | Be It Enacted by the Legislature of the State of Florida: | 
| 12 | 
 | 
| 13 | Section 1.  Subsection 689.28, Florida Statutes, is created | 
| 14 | to read: | 
| 15 | 689.28  Prohibition against transfer fee covenants.-- | 
| 16 | (1)  INTENT.--The Legislature finds and declares that the | 
| 17 | public policy of this state favors the marketability of real | 
| 18 | property and the transferability of interests in real property | 
| 19 | free of title defects, unreasonable restraints on alienation, | 
| 20 | and covenants and servitudes that do not touch and concern the | 
| 21 | property. The Legislature further finds and declares that | 
| 22 | transfer fee covenants violate this public policy by impairing | 
| 23 | the marketability and transferability of real property, | 
| 24 | constituting an unreasonable restraint on alienation regardless | 
| 25 | of the duration of such covenants or the amount of such transfer | 
| 26 | fees, and do not touch and concern the real property for the | 
| 27 | purposes of running with the title to the property or for | 
| 28 | binding subsequent owners of the property under common law or | 
| 29 | equitable principles. | 
| 30 | (2)  DEFINITIONS.--As used in this section, the term: | 
| 31 | (a)  "Environmental covenant" means a covenant or servitude | 
| 32 | that imposes limitations on the use of real property pursuant to | 
| 33 | an environmental remediation project pertaining to the property. | 
| 34 | An environmental covenant is not a transfer fee covenant. | 
| 35 | (b)  "Transfer" means the sale, gift, conveyance, | 
| 36 | assignment, inheritance, or other transfer of an ownership | 
| 37 | interest in real property located in this state. | 
| 38 | (c)  "Transfer fee" means a fee or charge payable upon the | 
| 39 | transfer of an interest in real property, or payable for the | 
| 40 | right to make or accept such transfer, regardless of whether the | 
| 41 | fee or charge is a fixed amount or is determined as a percentage | 
| 42 | of the value of the property, the purchase price, or other | 
| 43 | consideration given for the transfer. The following are not | 
| 44 | transfer fees for purposes of this section: | 
| 45 | 1.  Any consideration payable by the grantee to the grantor | 
| 46 | for the interest in real property being transferred, including | 
| 47 | any subsequent additional consideration for the property payable | 
| 48 | by the grantee based upon any subsequent appreciation, | 
| 49 | development, or sale of the property. | 
| 50 | 2.  Any commission payable to a licensed real estate broker | 
| 51 | for the transfer of real property pursuant to an agreement | 
| 52 | between the broker and the grantor or the grantee, including any | 
| 53 | subsequent additional commission for that transfer payable by | 
| 54 | the grantor or the grantee based upon any subsequent | 
| 55 | appreciation, development, or sale of the property. | 
| 56 | 3.  Any interest, charges, fees, or other amounts payable | 
| 57 | by a borrower to a lender pursuant to a loan secured by a | 
| 58 | mortgage against real property, including, but not limited to, | 
| 59 | any fee payable to the lender for consenting to an assumption of | 
| 60 | the loan or a transfer of the real property subject to the | 
| 61 | mortgage, any fees or charges payable to the lender for estoppel | 
| 62 | letters or certificates, and any shared appreciation interest or | 
| 63 | profit participation or other consideration described in s. | 
| 64 | 687.03(4) and payable to the lender in connection with the loan. | 
| 65 | 4.  Any rent, reimbursement, charge, fee, or other amount | 
| 66 | payable by a lessee to a lessor under a lease, including, but | 
| 67 | not limited to, any fee payable to the lessor for consenting to | 
| 68 | an assignment, subletting, encumbrance, or transfer of the | 
| 69 | lease. | 
| 70 | 5.  Any consideration payable to the holder of an option to | 
| 71 | purchase an interest in real property or the holder of a right | 
| 72 | of first refusal or first offer to purchase an interest in real | 
| 73 | property for waiving, releasing, or not exercising the option or | 
| 74 | right upon the transfer of the property to another person. | 
| 75 | 6.  Any tax, fee, charge, assessment, fine, or other amount | 
| 76 | payable to or imposed by a governmental authority. | 
| 77 | 7.  Any fee, charge, assessment, fine, or other amount | 
| 78 | payable to a homeowners', condominium, cooperative, mobile home, | 
| 79 | or property owners' association pursuant to a declaration or | 
| 80 | covenant or law applicable to such association, including, but | 
| 81 | not limited to, fees or charges payable for estoppel letters or | 
| 82 | certificates issued by or on behalf of the association. | 
| 83 | 8.  Any fee, charge, assessment, dues, contribution, or | 
| 84 | other amount imposed pursuant to a declaration or covenant | 
| 85 | encumbering four or more parcels in a community, as defined in | 
| 86 | s. 720.301, and payable to a nonprofit organization for the | 
| 87 | purpose of supporting cultural, educational, charitable, | 
| 88 | recreational, or other similar activities benefiting the | 
| 89 | community that is subject to the declaration or covenant. | 
| 90 | 9.  Any payment required pursuant to an environmental | 
| 91 | covenant. | 
| 92 | (d)  "Transfer fee covenant" means a declaration or | 
| 93 | covenant purporting to affect real property which requires or | 
| 94 | purports to require the payment of a transfer fee to the | 
| 95 | declarant or other person specified in the declaration or | 
| 96 | covenant or to their successors or assigns upon a subsequent | 
| 97 | transfer of an interest in the real property. | 
| 98 | (3)  PROHIBITION.--A transfer fee covenant recorded in this | 
| 99 | state on or after July 1, 2008, does not run with the title to | 
| 100 | real property and is not binding on or enforceable at law or in | 
| 101 | equity against any subsequent owner, purchaser, or mortgagee of | 
| 102 | any interest in real property as an equitable servitude or | 
| 103 | otherwise. Any lien purporting to secure the payment of a | 
| 104 | transfer fee under a transfer fee covenant recorded in this | 
| 105 | state on or after July 1, 2008, is void and unenforceable. This | 
| 106 | subsection does not mean that transfer fee covenants or transfer | 
| 107 | fee liens recorded in this state before July 1, 2008, are | 
| 108 | presumed valid and enforceable. | 
| 109 | Section 2.  This act shall take effect July 1, 2008. |