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A bill to be entitled

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An act relating to transfer fee covenants; 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; providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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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, unreasonable restraints on alienation, and

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covenants and servitudes that do not touch and concern the

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property. The Legislature further finds and declares that

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transfer fee covenants violate this public policy by impairing

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the marketability and transferability of real property,

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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 touch and concern the real property for the

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purposes of running with the title to the property or for binding

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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 payable upon the

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transfer of an interest in real property, or payable for the

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right to make or accept such transfer, regardless of whether the

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fee or charge is a fixed amount or is determined as a percentage

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of the value of the property, the purchase price, or other

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consideration given for the transfer. The following are not

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transfer fees for 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.

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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 payable by the grantor or the

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grantee based upon any subsequent appreciation, development, or

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sale of the property.

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

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

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against real property, including, but not limited to, any fee

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payable to the lender for consenting to an assumption of the loan

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or a transfer of the real property subject to the mortgage, any

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fees or charges payable to the lender for estoppel letters or

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certificates, and any shared appreciation interest or profit

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participation or other consideration described in s. 687.03(4)

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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 not

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limited to, any fee payable to the lessor for consenting to an

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assignment, subletting, encumbrance, or transfer of the 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 of

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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 or on behalf of the association.

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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 organization for the purpose of

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supporting cultural, educational, charitable, recreational, or

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other similar activities benefiting the community that is subject

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to the declaration or covenant.

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     9. Any payment required pursuant to an environmental

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covenant.

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

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purporting to affect real property which requires or purports to

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require the payment of a transfer fee to the declarant or other

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person specified in the declaration or covenant or to their

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successors or assigns upon a subsequent transfer of an interest

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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, may 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 lien purporting to secure the payment of a

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transfer fee under a transfer fee covenant recorded in this state

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on or after July 1, 2008, is void and unenforceable. This

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subsection does not mean that transfer fee covenants or liens

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

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and enforceable.

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     Section 2.  This act shall take effect July 1, 2008.