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The Committee on Judiciary (Geller) recommended the following

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amendment:

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     Senate Amendment (with title amendment)

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     Delete everything after the enacting clause

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and insert:

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     Section 1.  Subsection 689.28, Florida Statutes, is created

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to read:

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     689.28 Prohibition against transfer fee covenants.--

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     (1) INTENT.--The Legislature finds and declares that the

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public policy of this state favors the marketability of real

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property and the transferability of interests in real property

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free of title defects or unreasonable restraints on alienation.

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The Legislature further finds and declares that transfer fee

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covenants violate this public policy by impairing the

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marketability and transferability of real property and by

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constituting an unreasonable restraint on alienation regardless

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of the duration of such covenants or the amount of such transfer

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fees, and do not run with the title to the property or bind

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subsequent owners of the property under common law or equitable

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principles.

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     (2) DEFINITIONS.--As used in this section, the term:

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     (a) "Environmental covenant" means a covenant or servitude

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that imposes limitations on the use of real property pursuant to

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an environmental remediation project pertaining to the property.

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An environmental covenant is not a transfer fee covenant.

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     (b) "Transfer" means the sale, gift, conveyance,

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assignment, inheritance, or other transfer of an ownership

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interest in real property located in this state.

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     (c) "Transfer fee" means a fee or charge required by a

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transfer fee covenant and payable upon the transfer of an

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interest in real property, or payable for the right to make or

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accept such transfer, regardless of whether the fee or charge is

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a fixed amount or is determined as a percentage of the value of

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the property, the purchase price, or other consideration given

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for the transfer. The following are not transfer fees for

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purposes of this section:

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     1. Any consideration payable by the grantee to the grantor

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for the interest in real property being transferred, including

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any subsequent additional consideration for the property payable

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by the grantee based upon any subsequent appreciation,

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development, or sale of the property. For the purposes of this

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subparagraph an interest in real property may include a separate

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mineral estate and its appurtenant surface access rights.

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     2. Any commission payable to a licensed real estate broker

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for the transfer of real property pursuant to an agreement

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between the broker and the grantor or the grantee, including any

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subsequent additional commission for that transfer payable by

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the grantor or the grantee based upon any subsequent

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appreciation, development, or sale of the property.

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     3. Any interest, charges, fees, or other amounts payable

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by a borrower to a lender pursuant to a loan secured by a

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mortgage against real property, including, but not limited to,

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any fee payable to the lender for consenting to an assumption of

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the loan or a transfer of the real property subject to the

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mortgage, any fees or charges payable to the lender for estoppel

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letters or certificates, and any shared appreciation interest or

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profit participation or other consideration described in s.

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687.03(4) and payable to the lender in connection with the loan.

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     4. Any rent, reimbursement, charge, fee, or other amount

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payable by a lessee to a lessor under a lease, including, but

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not limited to, any fee payable to the lessor for consenting to

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an assignment, subletting, encumbrance, or transfer of the

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lease.

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     5. Any consideration payable to the holder of an option to

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purchase an interest in real property or the holder of a right

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of first refusal or first offer to purchase an interest in real

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property for waiving, releasing, or not exercising the option or

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right upon the transfer of the property to another person.

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     6. Any tax, fee, charge, assessment, fine, or other amount

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payable to or imposed by a governmental authority.

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     7. Any fee, charge, assessment, fine, or other amount

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payable to a homeowners', condominium, cooperative, mobile home,

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or property owners' association pursuant to a declaration or

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covenant or law applicable to such association, including, but

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not limited to, fees or charges payable for estoppel letters or

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certificates issued by the association or its authorized agent.

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     8. Any fee, charge, assessment, dues, contribution, or

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other amount imposed by a declaration or covenant encumbering

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four or more parcels in a community, as defined in s. 720.301,

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and payable to a nonprofit or charitable organization for the

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purpose of supporting cultural, educational, charitable,

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recreational, environmental, conservation, or other similar

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activities benefiting the community that is subject to the

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declaration or covenant.

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     9. Any fee, charge, assessment, dues, contribution, or

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other amount pertaining to the purchase or transfer of a club

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membership relating to real property owned by the member,

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including, but not limited to, any amount determined by

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reference to the value, purchase price, or other consideration

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given for the transfer of the real property.

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     10. Any payment required pursuant to an environmental

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covenant.

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     (d) "Transfer fee covenant" means a declaration or

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covenant recorded against the title to real property which

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requires or purports to require the payment of a transfer fee to

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the declarant or other person specified in the declaration or

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covenant or to their successors or assigns upon a subsequent

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transfer of an interest in the real property.

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     (3) PROHIBITION.--A transfer fee covenant recorded in this

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state on or after July 1, 2008, does not run with the title to

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real property and is not binding on or enforceable at law or in

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equity against any subsequent owner, purchaser, or mortgagee of

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any interest in real property as an equitable servitude or

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otherwise. Any liens purporting to secure the payment of a

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transfer fee under a transfer fee covenant that is recorded in

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this state on or after July 1, 2008, are void and unenforceable.

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This subsection does not mean that transfer fee covenants or

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liens recorded in this state before July 1, 2008, are presumed

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valid and enforceable.

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     Section 2.  Section 689.01, Florida Statutes, is amended to

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read:

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     689.01  How real estate conveyed.--No estate or interest of

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freehold, or for a term of more than 1 year, or any uncertain

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interest of, in or out of any messuages, lands, tenements or

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hereditaments shall be created, made, granted, transferred or

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released in any other manner than by instrument in writing,

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signed in the presence of two subscribing witnesses by the party

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creating, making, granting, conveying, transferring or releasing

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such estate, interest, or term of more than 1 year, or by the

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party's agent thereunto lawfully authorized agent, unless by

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will and testament, or other testamentary appointment, duly made

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according to law; and no estate or interest, either of freehold,

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or of term of more than 1 year, or any uncertain interest of,

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in, to, or out of any messuages, lands, tenements or

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hereditaments, shall be assigned or surrendered unless it be by

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instrument signed in the presence of two subscribing witnesses

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by the party so assigning or surrendering, or by the party's

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agent thereunto lawfully authorized agent, or by the act and

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operation of law. No seal shall be necessary to give validity to

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any instrument executed in conformity with this section.

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Corporations may execute any and all conveyances convey in

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accordance with the provisions of this section or in accordance

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with the provisions of ss. 692.01 and 692.02.

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     Section 3.  Section 692.01, Florida Statutes, is amended to

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read:

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     692.01 Conveyances executed by corporations.--Any

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corporation may execute instruments conveying, mortgaging, or

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affecting any interest in its lands by instruments sealed with

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the common or corporate seal and signed in its name by its

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president or any vice president or chief executive officer.

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Assignments, satisfactions, or partial releases of mortgages and

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acquittances for debts may be similarly executed by any

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corporate officer. No corporate resolution need be recorded to

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evidence the authority of the person executing the deed,

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mortgage, or other instrument for the corporation, and an

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instrument so executed is shall be valid whether or not the

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officer signing for the corporation was authorized to do so by

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the board of directors, in the absence of fraud in the

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transaction by the person receiving it. In cases of fraud,

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subsequent transactions with good faith purchasers for value and

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without notice of the fraud shall be valid and binding on the

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corporation.

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     Section 4.  This act shall take effect July 1, 2008.

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================ T I T L E  A M E N D M E N T ================

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And the title is amended as follows:

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     Delete everything before the enacting clause

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and insert:

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A bill to be entitled

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An act relating to real estate conveyances; creating s.

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689.28, F.S.; providing legislative intent regarding

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transfer fee covenants; providing definitions; providing

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that certain transfer fee covenants are unenforceable

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against subsequent owners, purchasers, and mortgagees;

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providing that a presumption is not created in favor of

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transfer fee covenants recorded before the effective date

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of the act; amending ss. 689.01 and 692.01, F.S.;

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clarifying that corporations may execute conveyances;

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providing an effective date.

3/17/2008  11:23:00 AM     31-04609C-08