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 |
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11 | Be It Enacted by the Legislature of the State of Florida: |
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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. |