HB 391

1
A bill to be entitled
2An act relating to transfer fee covenants; creating s.
3689.28, F.S.; providing legislative intent regarding
4transfer fee covenants; providing definitions; providing
5that certain transfer fee covenants are unenforceable
6against subsequent owners, purchasers, and mortgagees;
7providing that a presumption is not created in favor of
8transfer fee covenants recorded before the effective date
9of the act; providing an effective date.
10
11Be It Enacted by the Legislature of the State of Florida:
12
13     Section 1.  Subsection 689.28, Florida Statutes, is created
14to read:
15     689.28  Prohibition against transfer fee covenants.--
16     (1)  INTENT.--The Legislature finds and declares that the
17public policy of this state favors the marketability of real
18property and the transferability of interests in real property
19free of title defects, unreasonable restraints on alienation,
20and covenants and servitudes that do not touch and concern the
21property. The Legislature further finds and declares that
22transfer fee covenants violate this public policy by impairing
23the marketability and transferability of real property,
24constituting an unreasonable restraint on alienation regardless
25of the duration of such covenants or the amount of such transfer
26fees, and do not touch and concern the real property for the
27purposes of running with the title to the property or for
28binding subsequent owners of the property under common law or
29equitable principles.
30     (2)  DEFINITIONS.--As used in this section, the term:
31     (a)  "Environmental covenant" means a covenant or servitude
32that imposes limitations on the use of real property pursuant to
33an environmental remediation project pertaining to the property.
34An environmental covenant is not a transfer fee covenant.
35     (b)  "Transfer" means the sale, gift, conveyance,
36assignment, inheritance, or other transfer of an ownership
37interest in real property located in this state.
38     (c)  "Transfer fee" means a fee or charge payable upon the
39transfer of an interest in real property, or payable for the
40right to make or accept such transfer, regardless of whether the
41fee or charge is a fixed amount or is determined as a percentage
42of the value of the property, the purchase price, or other
43consideration given for the transfer. The following are not
44transfer fees for purposes of this section:
45     1.  Any consideration payable by the grantee to the grantor
46for the interest in real property being transferred, including
47any subsequent additional consideration for the property payable
48by the grantee based upon any subsequent appreciation,
49development, or sale of the property.
50     2.  Any commission payable to a licensed real estate broker
51for the transfer of real property pursuant to an agreement
52between the broker and the grantor or the grantee, including any
53subsequent additional commission for that transfer payable by
54the grantor or the grantee based upon any subsequent
55appreciation, development, or sale of the property.
56     3.  Any interest, charges, fees, or other amounts payable
57by a borrower to a lender pursuant to a loan secured by a
58mortgage against real property, including, but not limited to,
59any fee payable to the lender for consenting to an assumption of
60the loan or a transfer of the real property subject to the
61mortgage, any fees or charges payable to the lender for estoppel
62letters or certificates, and any shared appreciation interest or
63profit participation or other consideration described in s.
64687.03(4) and payable to the lender in connection with the loan.
65     4.  Any rent, reimbursement, charge, fee, or other amount
66payable by a lessee to a lessor under a lease, including, but
67not limited to, any fee payable to the lessor for consenting to
68an assignment, subletting, encumbrance, or transfer of the
69lease.
70     5.  Any consideration payable to the holder of an option to
71purchase an interest in real property or the holder of a right
72of first refusal or first offer to purchase an interest in real
73property for waiving, releasing, or not exercising the option or
74right upon the transfer of the property to another person.
75     6.  Any tax, fee, charge, assessment, fine, or other amount
76payable to or imposed by a governmental authority.
77     7.  Any fee, charge, assessment, fine, or other amount
78payable to a homeowners', condominium, cooperative, mobile home,
79or property owners' association pursuant to a declaration or
80covenant or law applicable to such association, including, but
81not limited to, fees or charges payable for estoppel letters or
82certificates issued by or on behalf of the association.
83     8.  Any fee, charge, assessment, dues, contribution, or
84other amount imposed pursuant to a declaration or covenant
85encumbering four or more parcels in a community, as defined in
86s. 720.301, and payable to a nonprofit organization for the
87purpose of supporting cultural, educational, charitable,
88recreational, or other similar activities benefiting the
89community that is subject to the declaration or covenant.
90     9.  Any payment required pursuant to an environmental
91covenant.
92     (d)  "Transfer fee covenant" means a declaration or
93covenant purporting to affect real property which requires or
94purports to require the payment of a transfer fee to the
95declarant or other person specified in the declaration or
96covenant or to their successors or assigns upon a subsequent
97transfer of an interest in the real property.
98     (3)  PROHIBITION.--A transfer fee covenant recorded in this
99state on or after July 1, 2008, does not run with the title to
100real property and is not binding on or enforceable at law or in
101equity against any subsequent owner, purchaser, or mortgagee of
102any interest in real property as an equitable servitude or
103otherwise. Any lien purporting to secure the payment of a
104transfer fee under a transfer fee covenant recorded in this
105state on or after July 1, 2008, is void and unenforceable. This
106subsection does not mean that transfer fee covenants or transfer
107fee liens recorded in this state before July 1, 2008, are
108presumed valid and enforceable.
109     Section 2.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.